National Security Letters Reform Act of 2009 H.R.1800
H.R.1800 is set to put the brakes on these National Security Letters that we’ve heard so much about. At least it is a step in the right direction. It won’t stop them, but new requirements and avenues for people to dispute what is happening to them are in this new bill. Perhaps some sense is starting to find its way into Congress.
In essence, the new bill would make it so that NSLs (National Security Letters), cannot contain or demand things that an ordinary supeana would consider too much or more than is necessary. It also strips away the secrecy surrounding these NSLs. In other words, a person is allowed now to seek lawful counsel when confronted by one of these NSLs. These are important and needed reforms.
SEC. 3. PROCEDURAL PROTECTIONS FOR NATIONAL SECURITY LETTERS.
(b) Limitation Regarding First Amendment Activities- A national security letter may not be issued in connection with an investigation of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United StatesAttorney General’s Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations. in accordance with the
(c) Other Limitations-
(1) LETTER MAY NOT CONTAIN UNREASONABLE REQUIREMENTS OR REQUIRE PRIVILEGED MATTER- A national security letter may not–
(A) contain any requirement which would be held to be unreasonable if contained in a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation of espionage or international terrorism; or
(B) require the production of any documentary evidence which would be privileged from disclosure if demanded by a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation of espionage or international terrorism.
These are very important clauses. They protect those who assert their 1st Amendment rights such as journalists and bloggers. It also makes sure that what is asked for by the FBI is necessary to the case and not just a clean sweep of intelligence gathering. And, it allows a person to seek legal counsel.
It does allow for the FBI to file a petition for a gag order if the FBI feels it is necessary to the case but only for a period of not more than 180 days following receipt of the NSL. The FBI is required to be very specific about why they want the gag order to be filed and approved. It has to be articulate and fact filled or the gag order will be denied.
The following are a list of situations where a gag order would be granted:
(A) endangering the life or physical safety of any person;
(B) flight from prosecution;
(C) destruction of or tampering with evidence;
(D) intimidation of potential witnesses; or
(E) otherwise seriously endangering the national security of the United States by alerting a target, a target’s associates, or the foreign power of which the target is an agent, of the Government’s interest in the target.
It sounds reasonable to me. I’m not sure what anyone else thinks. But as with all the laws enacted lately, I’ll reserve judgment for the time being. They always manage to abuse these types of bills in some way. I want to see how this one goes down.
This bill is fairly short if you read it. Maybe take you 20 or so minutes. I’m going to include most of the sections here and go over what I think about them, if I spot any way for abuse to happen, etc.
(6) STANDARD- The court may issue an ex parte order in response to an application under paragraph (3) if the court determines that the order is narrowly tailored to meet a compelling interest and that there is reason to believe that disclosure that the Federal Bureau of Investigation has sought or obtained access to information or records under this section will have one of the results described in paragraph (5).
(7) RENEWAL- An order under this subsection may be renewed for additional periods of not more than 180 days upon another application meeting the requirements of paragraph (5) and a determination by the court that the standard of paragraph (6) continues to be met.
(8) CONFORMING AMENDMENTS-
(A) Section 2709 of title 18, United States Code, is amended by striking subsection (c).
(B) Section 1114(a)(5) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3414(a)(5)) is amended by striking subparagraph (D).
(C) Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) is amended by striking subsection (d).
(D) Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) is amended by striking subsection (c).
Ex parte is a Latin legal term meaning “from (by or for) one party” (pronounced /ɛks ˈpɑrteɪ/ or /ɛks ˈpɑrti/ in English). An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present. I think anyone who has ever had a collection agency after them will get the meaning of this one easily. While never having known what the term meant, I’ve known what happens when a person has a decision made against them without having a chance to defend themselves.
I added all the links in this section because you need to know how they are changing things in order for any of this to make sense. It is all well and good to tell us what is being changed, (and Cornell Law does a great job on the linked-in stuff), however, you cannot read all of it from their links. The size of the screen cuts off some of these and never even gets to others.
According to Wikipedia:
In the United States, the availability of ex parte orders or decrees from both federal and state courts is sharply limited by the Fifth and Fourteenth Amendments, which provide that a person shall not be deprived of any interest in liberty or property without due process of law. In practice this has been interpreted to require adequate notice of the request for judicial relief and an opportunity to be heard concerning the merits of such relief. A court order issued on the basis of an ex parte proceeding, therefore, will necessarily be temporary and interim in nature, and the person(s) affected by the order must be given an opportunity to contest the appropriateness of the order before it can be made permanent.
The phrase has also traditionally been used in the captions of petitions for the writ of habeas corpus, which were (and in some jurisdictions, still are) styled as “Ex parte Doe”, where Doe was the name of the petitioner who was alleged to be wrongfully held. As the Supreme Court’s description of nineteenth century practice in Ex parte Milligan shows, however, such proceedings were not ex parte in any significant sense. The prisoner’s ex parte application only sought an order requiring the person holding the prisoner to appear before the court to justify the prisoner’s detention; no order requiring the freeing of a prisoner could be given until after the jailer was given the opportunity to contest the prisoner’s claims at a hearing on the merits.
I suppose these links could go on forever. But these are the references which stood out for me. The law is being used against us and we need to educate ourselves in order to understand what things mean. After all the laws says that ignorance is no excuse.
Now, back to the bill…
(e) Judicial Review-
(1) PETITION- Not later than 20 days after any person receives a national security, or at any time before the return date specified in the letter, whichever period is longer, such person may file, in the district court of the United States for the judicial district within which such person resides, is found, or transacts business, a petition for such court to modify or set aside such letter. The time allowed for compliance with the letter in whole or in part as deemed proper and ordered by the court shall not run while the petition is pending in the court. The petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the letter to comply with this section or upon any constitutional or other legal right or privilege of such person.
(A) IN GENERAL- A person prohibited by law from disclosing information about the national security letter may file, in the district court of the United States for the judicial district within which such person resides, is found, or transacts business, a petition for the court to set aside the nondisclosure requirement. Such petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the nondisclosure requirement to comply with this section or upon any constitutional or other legal right or privilege of such person.
(B) STANDARD- The court shall set aside the nondisclosure requirement unless the court determines that the nondisclosure requirement complies with this section and does not violate any constitutional or other legal right or privilege of such person.
(3) DISCLOSURE OF CLASSIFIED MATERIAL- In making a determination under this subsection, unless the court finds that such disclosure would not assist in determining any legal or factual issue pertinent to the case, the court shall disclose to the petitioner, the counsel of the petitioner, or both, under the procedures and standards provided in the Classified Information Procedures Act (18 U.S.C. App.), any classified portions of the application, order, or other related materials.
From what I read, I don’t think the non-disclosure part of the NSL’s will ever be gotten rid of unless they violate our Constitution. But the Constitution doesn’t give us rights, our Creator did. This could be a loop hole for future court cases. By claiming that it is the Constitution that grants rights, we diminish our rights from sovereign to something which may be taken from us by those that granted them. This is totally against the Constitution, or the founding father’s intentions for our unalienable rights Creator given. And it really bothers me that the references to the Constitution in this document are all small case. Shouldn’t our most important document be in caps? Is it just me or does this show a lack of respect for this time honored document???
I found this section of particular importance and interest:
(f) Use of Information-
(1) IN GENERAL-
(A) CONSENT- Information acquired from a national security letter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with this subsection.
(B) LAWFUL PURPOSE- No information acquired by a national security letter may be used or disclosed by Federal officers or employees except for lawful purposes.
(2) DISCLOSURE FOR LAW ENFORCEMENT PURPOSES- No information acquired by a national security letter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.
(3) NOTIFICATION OF INTENDED DISCLOSURE BY THE UNITED STATES- Whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States against an aggrieved person any information obtained by or derived from a national security letter, the United States shall, before the trial, hearing, or other proceeding or at a reasonable time before an effort to so disclose or so use this information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information.
(4) NOTIFICATION OF INTENDED DISCLOSURE BY STATE OR POLITICAL SUBDIVISION- Whenever a State or political subdivision of a State intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the State or political subdivision against an aggrieved person any information obtained or derived from a request pursuant to this section, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.
Now, I have issues with most every part of this bill where *person* is defined in small letters. This has MEANING according to the law, and in this case it means that *WE* are less than what we should be and they are placing the Federal government above us instead of below us as the Constitution dictates. I have issues where ANYTHING of this nature occurs. Before our government went into overdrive to rule us, Citizen was always capitalized. It meant that the Citizen was the Sovereign, not the government. We need to make sure this is reiterated from now on. You may think I’m being nit-picky, but truly, things like this have standing in the laws and courts of this land.
Just as united is an adjunctive and not to be capitalized. United means we stand together. We are united in purpose. Being an adjunctive it is NOT to be capitalized, yet we see it daily that way. United States is a Corporation of which I am not a part. I am a Citizen of the Sovereign State of Arizona. I am a Sovereign Citizen of that State. There are 50 *united* States that make up these united States. I hope that makes sense.
So, to have them call us a person, (small letters), and not a Citizen, has standing with the courts and means that we are subjects OF the federal government instead of the federal government being subject to US.
SEC. 4. CAUSE OF ACTION FOR MISUSE OF NATIONAL SECURITY LETTERS.
A person to whom records requested by a national security letter pertains may, in a civil action against any person issuing or obtaining the issuing of such letter, obtain money damages equal to the greater of the actual damages or $50,000, if the national security letter was issued contrary to law or the certification on which is was based was without factual foundation.
I have no idea if this will be of any help to anyone, but it is an important clause. I don’t know if something like this would help Ashton Lundeby or not. But let us hope that this one clause will ensure that those seeking these NSLs are aware of it.
The bad news on all of this is that this is just a test program which is currently in committee. Within 5 years all of this reverts back to the original version of the NSLs.
SEC. 5. SUNSET OF PATRIOT ACT CHANGES TO NATIONAL SECURITY LETTER AUTHORITY.
(a) In General- The authority to issue national security letters shall revert 5 years after the date of the enactment of this Act to that provided by law on October 25, 2001.
(b) Report- Not later than the date on which the authority to issue national security letters ceases under this Act, the Attorney General shall report to Congress on whether, and if so, how, the authority to issue national security letters furthered investigations as compared to alternative methods for obtaining relevant information.
And the very end of the bill has some further changes to current paragraphs within the original bill:
Original: (8) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.
New: ‘(8) to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information;’;
Original: (4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;
New: ‘(4) to a governmental entity if the provider has a reasonable belief that an emergency involving the imminent danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency;’; and
Original: (d) Reporting of Emergency Disclosures.— On an annual basis, the Attorney General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report containing—
(1) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8); and
(2) a summary of the basis for disclosure in those instances where—
New: (d) Reporting of Emergency Disclosures- On a semiannual basis the Attorney General shall submit to the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate a report containing–
‘(1) the number of accounts from which the Department of Justice has received voluntary disclosures under subsection (b)(8), and a summary of the factual basis for each emergency disclosure; and
‘(2) the number and type of communications the Department of Justice has received by voluntary disclosure under subsection (c)(4), and a summary of the factual basis for each emergency disclosure.’.
So, some interesting changes and mostly for the good of We the People. Check it out for yourself and make your own decisions. While we seem to have no choice with these unconstitutional laws, at least we are having some glimmer of hope here that sanity is returning to Congress. SOME!