Lawsuit Challenges Constitutionality of Law Allowing FBI to Obtain Records from Electronic Communication Service Providers

April 28, 2004. The American Civil Liberties Union (ACLU) published in its web site a complaint [14 page PDF scan] that it filed in U.S. District Court (SDNY) against Attorney General John Ashcroft, FBI Director Robert Mueller, and FBI Senior Counsel Marion Bowman.

The complaint is heavily redacted. Moreover, while material redacted from pleadings typically includes factual allegations, and the products of pretrial discovery, the ACLU has redacted text that constitutes a cause of action and relief sought. In addition, the name and description of the second plaintiff is redacted. The complaint even redacts part of the paragraph in which the ACLU describes itself. Hence, the action cannot be fully characterized on the basis of this redacted complaint.

The complaint does, however, contain an unredacted cause of action. The unredacted material states that the ACLU challenges the constitutionality of 18 U.S.C. § 2709, a section that was amended by the USA PATRIOT Act in late 2001.

Section 2709, which was originally enacted as part of the Electronic Communications Privacy Act of 1986 (ECPA), concerns the national security authority of the President (and his agents) to obtain records from a "wire or electronic communication service provider" in "an authorized investigation to protect against international terrorism or clandestine intelligence activities". These requests are also sometimes referred to as National Security Letters or NSLs.

This authority does not concern wiretapping, or seizure of communications, of the targets of investigations. Rather, it concerns obtaining records from the service provider, such as subscriber information, including names, addresses, telephone numbers, e-mail addresses, and credit or debit card information.

Since these NSLs are based upon national security authority, there is no requirement that prior judicial approval be obtained. This serves as a basis for the ACLU's legal challenge.

Section 2709 also contains a restraint on speech regarding the exercise of Section 2709 authority. Subsection 2709(c) provides that "No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section."

The ACLU might assert in redacted material that it is somehow subject to this language. However, the second plaintiff, which is identified as "an internet access [redacted text] business", may be subject to this restraint.

The unredacted portions of the complaint state that the ACLU argues that the authority granted under Section 2709 to obtain records, and the restraint on disclosure that records have been requested, are unconstitutional under the First, Fourth and Fifth amendments.

The complaint alleges too that "Section 2709 does not restrict the FBI's use of the information obtained through the issuance of NSLs. The information may be stored electronically and used for large-scale data mining operations."

The complaint alleges that initially NSL authority "could be used only against people suspected of espionage", but "As a result of the Patriot Act, the FBI may now use NSLs to obtain sensitive information about innocent individuals who have no connection to espionage or terrorism."

The ACLU filed the complaint on April 6, 2004. Auther Eisenberg of the New York Civil Liberties Union Foundation signed the complaint.

Pending Bills Affecting Section 2709. There is bipartisan concern about Section 2709 in the Congress -- particularly in the context of libraries being treated by the FBI as "electronic communication service provider[s]" within the meaning of Section 2709.

For example, on October 2, 2003, Sen. Larry Craig (R-ID), Sen. Dick Durbin (D-IL), and others introduced S 1709, the "Security and Freedom Ensured Act of 2003" (SAFE Act), a bill to modify various provisions of the PATRIOT Act. See, story titled "Senators Craig and Durbin Introduce Bill to Modify PATRIOT Act" in TLJ Daily E-Mail Alert No. 753, October 6, 2003.

One such provision would amend Section 2709 to provide that libraries are not "electronic communication service providers". S 1709 would amend 18 U.S.C. § 2709, which currently requires that "A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records ..."

S 1709, at § 5, would insert an exception: "A library shall not be treated as a wire or electronic communication service provider for purposes of this section."

Attorney General Ashcroft (at right) opposes this change. On January 28, 2004, he wrote a letter [4 page PDF scan] to Senate leaders in which he opposed passage of S 1709. He also stated that, if passed by the Congress, the President might veto it. See, story titled "Ashcroft Opposes Senate Bill to Roll Back PATRIOT Act Provisions" in TLJ Daily E-Mail Alert No. 827, February 2, 2004.

He explained that "The SAFE Act would make it more difficult, in some circumstances, to obtain information about emails sent from public computer terminals at libraries than it would be to obtain the same information about emails sent from home computers. Ironically, it would extend a greater degree of privacy to activities that occur in a public place than to those taking place in a home."

Excerpts From the Section 505 of the PATRIOT Act and 18 U.S.C. § 2709. The USA PATRIOT Act is titled, in full, the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001". It was passed by the 107th Congress as HR 3162. It became Public Law 107-56 on October 26, 2001.

Section 505 of the PATRIOT Act, is titled "MISCELLANEOUS NATIONAL SECURITY AUTHORITIES". Subsection 505(a) is titled "TELEPHONE TOLL AND TRANSACTIONAL RECORDS". It provides as follows:

"Section 2709(b) of title 18, United States Code, is amended--
   (1) in the matter preceding paragraph (1), by inserting `at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director' after `Assistant Director';
   (2) in paragraph (1)--(A) by striking `in a position not lower than Deputy Assistant Director'; and (B) by striking `made that' and all that follows and inserting the following: `made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and'; and
   (3) in paragraph (2)--(A) by striking `in a position not lower than Deputy Assistant Director'; and (B) by striking `made that' and all that follows and inserting the following: `made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.'."

18 U.S.C. § 2709 pertains to "Counterintelligence access to telephone toll and transactional records".

Subsection 2709(a) provides that "A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section."

Subsection 2709(b), which was amended by the above quoted section of the PATRIOT Act, addresses the required certification. It now provides as follows:

"The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may --
   (1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and
   (2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States."