Footnote to the footnote

If you think it's all about "them," that it doesn't affect "you," think again and read this chilling article from last week's Washington Post about the "exponentially growing" use of so-called "national security letters," or NSLs, to evade and undermine privacy laws and the Fourth Amendment.

Summary: If you have any contact, even casual, even unknowing, with a suspect in any investigation involving "international terrorism or clandestine intelligence activities," even if you are not suspected of wrongdoing, any FBI field supervisor can on their own authority, without any oversight by a prosecutor, grand jury, or judge - or even any after-the-fact review by the Justice Department or Congress - issue a national security letter which can be used to demand information on

where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work.

Employment records, credit records, banking records, phone records, travel records, and more, it's all there for the taking. The people, agencies, and businesses from who that information is obtained are required to never reveal that the information was released or even that the NSL was presented to them.

Even if you are subsequently cleared of any involvement in anything illegal, the information gathered on you is kept on file permanently in government databanks, which now can also contain consumer data from commercial providers.

In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined.

The specific purpose of retaining the records is to enhance the government's ability to do "link analysis," otherwise known as "data mining," where your personal information can be examined again and again without the need for a new justification, even for purposes unrelated to the original investigation, and even by an entirely different government agency (or, perhaps, an "appropriate" private corporation).

The defenses of the practice are like entering a hall of mirrors designed by Kafka. For example, Joseph Billy, the FBI's deputy assistant director for counterterrorism, said if agents had to have grounds to suspect someone, they would already know what they wanted an NSL to find out.

"It's all chicken and egg," he said. "We're trying to determine if someone warrants scrutiny or doesn't."

And, of course, the only way to know if someone warrants scrutiny is to scrutinize them. See? Meanwhile, assistant FBI director Michael Mason, in charge of the Washington field office, rings up the old "the innocent have nothing to fear" defense.

"I don't necessarily want somebody knowing what videos I rent or the fact that I like cartoons," said Mason, the Washington field office chief. But if those records "are never used against a person, if they're never used to put him in jail, or deprive him of a vote, et cetera, then what is the argument?"

Former right-wing Georgia Congressman but strong civil liberties advocate Bob Barr says the abuse is in the power itself, which is true, but for my part, I want to have a video of Mason having sex that I can plaster all over the internet. I'm sure he couldn't object. I mean, after all, if privacy itself is not a consideration, if the whole concept of personal privacy is irrelevant, what's the harm? What's the argument?

And no, they didn't forget the all-time classic: Valerie Caproni, the FBI's general counsel, said

"[s]tarting with your bad guy and his telephone number and looking at who he's calling, and [then] who they're calling," the number of people surveilled "goes up exponentially..."

But Caproni said it would not be rational for the bureau to follow the chain too far. "Everybody's connected" if investigators keep tracing calls "far enough away from your targeted bad guy," she said. "What's the point of that?"

And if that's not enough, Billy has words of reassurance.

Innocent Americans, he said, "should take comfort at least knowing that it is done under a great deal of investigative care, oversight, within the parameters of the law."

That's right, you got it, Caproni and Billy are saying "Trust us."

That's kind of hard to do, considering it's mystifying just what sort of "care and oversight" Billy is talking about.

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. ...

The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting....

The Justice Department has offered Congress no concrete information, even in classified form, save for a partial count of the number of letters delivered. The statistics do not cover all forms of national security letters or all U.S. agencies making use of them.

What's more, the White House has been unable to come up with a single case where the use of an NSL disrupted a plot.

As the Justice Department prepared congressional testimony this year, FBI headquarters searched for examples that would show how expanded surveillance powers made a difference. ...

"I'd love to have a made-for-Hollywood story, but I don't have one," Mason said. "I am not even sure such an example exists."

One final Kafkaesque bit is DOJ officials will defend themselves against charges of overbroad (and overboard) authority by noting that Inspector General Glenn Fine has yet to substantiate a complaint of abuse under the Traitor - oops, "Patriot" - Act. But how does one complain about an unjustified search of their personal records if the existence of that search is unknown to them? How do you protest against something you have no idea is happening? In testimony last May, Fine was forced to admit "that's a legitimate question." Going a step further, when the mandate to search is so broad and the required justification so little beyond - if beyond at all - simple curiosity, what would it take to make a search an abuse?

Despite (or perhaps because of) all that, Congress is prepared to actually expand the powers of NSLs by increasing the penalties both for noncompliance and for revealing their contents.

At the FBI, senior officials said the most important check on their power is that Congress is watching.

"People have to depend on their elected representatives to do the job of oversight they were elected to do," Caproni said. "And we think they do a fine job of it."

Yeah, well, you would, wouldn't you.

You guessed it, a Footnote: Opposition is actually growing to various provisions of the Traitor Act. Kind of late in the game but still better late than never and all that, last Wednesday the House instructed its conferees with the Senate on resolving differences between their competing versions of the Act's renewal to accept Senate language requiring a sunset of certain of the more controversial sections. Meanwhile, in a move applauded by the ACLU,

[s]everal major business groups, including the National Association of Manufacturers and the U.S. Chamber of Commerce, complained in an Oct. 4 letter to senators that customer records can "too easily be obtained and disseminated" around the government. National security letters, they wrote, have begun to impose an "expensive and time-consuming burden" on business.

Unfortunately, the response has not been to tighten privacy protections, but to offer a concession to business: Both House and Senate versions of the bill would allow a judge to modify a national security letter if it imposes an "unreasonable" or "oppressive" burden on the company that is asked for information. That's obviously intended to placate corporate America and is hardly enough, but it does serve to indicate that it's more than what one FBI official called the "eccentric" civil liberties advocates who are troubled by what the government has been doing - and this is a constituency they can't afford to ignore.