End the FBI’s Secret Accessing of Private Communications Without a Warrant

MarylandGovPics via Flickr

Target:  President Barack Obama

Goal:  End the warrantless and clandestine access to personal communications and information by the FBI through National Security Letters

The Fourth Amendment of the Constitution of the United States proclaims that the right of the people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” and that “no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” However, since 2001, the FBI has been making extensive use of National Security Letters (NSLs) to demand information about individuals from telecommunication companies and financial institutions. Congress, as part of the Patriot Act, authorized an expanded use of these letters, permitting the targeting of American citizens or legal residents as long as the official target of the investigation is outside the U.S. and foreign intelligence is one of the purported goals of the investigation.

The widespread use of these letters without judicial oversight constitutes a grave erosion of our civil liberties. An NSL permits the FBI and other federal agencies to obtain and review data relating to the phone, internet, and bank use of individual Americans under the slightest of pretense. Unlike the procedure for acquiring a warrant, there is no judicial oversight, no burden on the part of the agency seeking the warrant to show probable cause, and no notification of the person that a warrant has been obtained. In fact, the National Security Letters contain gag orders forbidding the recipient telecommunications company from even acknowledging the existence of the letters under criminal penalty. The secrecy of the letters, and the FBI’s incomplete disclosure of the number of letters issued to Congress in the past, prevents the targets of these investigations from even knowing that their privacy was violated, and hinders Congress’ ability to exercise adequate oversight of a process already free from judicial review.

President Obama stated during his campaign for office that he rejected the belief that a president “may do whatever he deems necessary to protect national security,” and that he believed “that there should be no contradiction between keeping America safe and secure, and respecting our Constitution.” At his first inauguration, the President stated that his administration would be “committed to creating an unprecedented level of openness in Government.” Despite these promises, NSLs have allowed the FBI to view the communications of over 14,000 American citizens and residents in 2010 alone, without judicial oversight or even notice to the those whose personal communications were accessed.

We must hold the President his own words.  The use of NSLs to obtain the private information of Americans in lieu of a judicial warrant violates the Fourth Amendment protections against warrantless searches. These letters are also contrary to the basic constitutional doctrines of checks and balances. The President, as head of the Justice Department, has the authority to order the FBI to revise its procedures for issuing NSLs and adopt a policy providing for judicial oversight and notification of the targeted individuals. Please add your voice and let President Obama know that you oppose this unconstitutional and unjust practice.

PETITION LETTER

Dear President Obama,

During your campaign you promised greater government transparency, and said that you did not believe that we had to choose between upholding the Constitution and protecting the public. Many in this nation were hopeful that you would end the abusive practices of the previous administration. But your administration has permitted the continued issuance of National Security Letters (NSLs), a practice which violates the Fourth Amendment’s guarantee that all Americans’ right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” would not be violated. I am imploring you, as the President of this nation and the head of the Executive Branch, to end this secretive and unjust practice, and to direct the Justice Department to draft a National Security Letter policy that would allow for judicial oversight, one in accordance with both the letter and the spirit of our Bill of Rights.

The protections afforded by the Fourth Amendment are among our most precious rights guaranteed by the Bill of Rights. The Amendment was the product of the abusive use of general warrants and writs of assistance during the colonial period, and the fears that the new federal government would reintroduce such practices. That is why the Amendment specifically states that no warrants shall be issued unless they “particularly describing the place to be searched, and the persons or things to be seized.” The founders didn’t want fishing expeditions for anything illegal in anyone’s home, and they wanted the authorities demanded the warrant to be able to show produce some evidence as to why they think they need to search that person’s home. These requirements have not hindered law enforcement in the past or in the present, but they do serve to protect the public from fishing expeditions and invasions of their privacy.

The world has changed since the days when the Fourth Amendment was drafted, but the fundamental right, and its importance, remains unchanged. While the Founders may not have been able to imagine we’d have cellphones and the internet, they would probably all agree that our phone records, inbox, and personal data stored in “the cloud” constitute “papers and effects” whose security is guaranteed by the Fourth Amendment, and they would balk at the warrantless seizure of those “papers and effects” without their owner’s knowledge. As the head of the Executive Branch, you have the authority to end the abusive use of these letters. It is in your power to direct the FBI to halt its current usage of National Security Letters, and to draft a policy that would be compatible with both our nation’s national security needs and the Constitution which you have not only taught law school level classes on, but have sworn on your honor to uphold. An ideal policy would feature prior judicial approval and limitations on the communications to be accessed. Such a policy should also require a showing of probable cause, and any individual whose communications or transactions are accessed through one of these letters should be notified, unless the agency issuing the letter can convince a judge that such disclosure would imperil national security.

We gain nothing if we defeat all our nation’s enemies at the cost of our freedom. Individual liberty and the rule of law are the pillars of our greatness as a nation.  I urge you to stop this unconscionable practice.

Sincerely,

[Your Name Here]

Photo Credit:  Maryland Gov Pics via Flickr

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