Incluyo un Brief de Amicus Curiae de profesores de derecho, el cual me incluye como firmante, donde alegamos que la Sección 2709 del Electronic Comunications Privacy Act infringe las garantías de la Primera Enmienda relativas a la libertad de asociación. Este alegato, sometido el 8 de abril de 2013, no se podía divulgar, pues no fue hasta hace unos días que el 9no Circuito levantó un orden de mordaza sobre el mismo. Copio una buena parte del argumento y pego el escrito completo al final.
Section 2709 permits certain FBI officials to issue national security letters (“NSLs”) to communication providers requesting the telephone call data and other “electronic communication transactional records” of a “person or entity” by certifying that the records 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 . . . .” 18 U.S.C. § 2709(b)(1). No judicial approval is required. An NSL may be opposed only by the service provider, which ordinarily is prohibited from disclosing that it has received the request. 2 18 U.S.C. § 2709(c).
The government has interpreted the generally permissive relevance standard especially broadly when applied to communication transactional records. In relation to the bulk collection of telephony metadata under Section 215 of the USA PATRIOT Act, Pub. L. No. 105–76, § 215, 115 Stat. 272, 287 (codified at 50 U.S.C. § 1861 (2012)), the government argued that “communications metadata is different from many other kinds of records because it is inter-connected and the connections between individual data points, which can be reliably identified only through analysis of a large volume of data, are particularly important to a broad range of investigations of international terrorism.”3 Administration White Paper: Bulk Collection of Telephony Metadata under Section 215 of the USA PATRIOT Act 2 (2013) [hereinafter “White Paper”], http://i2.cdn.turner.com/cnn/2013/images/08/09/administration.white.paper.section .215.pdf. More generally, the government argued that “‘relevance’ is a broad standard that permits discovery of large volumes of data in circumstances where doing so is necessary to identify much smaller amounts of information within that data that directly bears on the matter being investigated.” Id.
From this perspective, which was adopted by the FISC, communication transactional records need not have even a minimal substantive connection to an investigation to be “relevant;” all telephony metadata is “relevant” simply because “the terrorists’ communications are located somewhere in the metadata.”In reApplication of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things from [Redacted], BR–1309, at 21 (FISA Ct. 2013) [hereinafter “FISC Order”]. See also Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court 60–80 (January 23, 2014) (critiquing this broad interpretation of Section 215’s relevance standard)
Section 215 orders “may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum . . . or with any other order issued by a court . . . directing the production of records or tangible things,” 50 U.S.C. § 1861(c)(2)(D). An NSL is a type of administrative subpoena. Gov’t’s Opening Br. 5; President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World 24 (2013) [hereinafter “President’s Review Group Report”].5 The FBI thus seems likely to adopt a similarly broad interpretation of Section 2709’s relevance standard. Indeed, the FBI has used Section 2709 to obtain “community of interest” or “calling circle” data in the past. Department of Justice, Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of Exigent Letters and Other Information Requests for Telephone Records 54–63, 75 (2010).
Moreover, unlike records obtained pursuant to Section 215, records acquired using NSLs are not subject to judicially-imposed minimization requirements. Section 215 orders must “direct that minimization procedures” be followed. 50 USC § 1861(c)(1). Thus, the orders authorizing the bulk telephony metadata program require intelligence officials to determine, before querying the data, that “based on the factual and practical considerations of everyday life on which reasonable and prudent persons act, there are facts giving rise to a reasonable, articulable suspicion (RAS) that the selection term to be queried is associated with [a particular foreign terrorist organization].” FISC Order at 7. Section 2709 imposes no such standard, permitting acquisition and use of particular individuals’ communication records based on mere relevance.
Section 2709 pays lip service to the First Amendment by prohibiting demands for records “relevant to an authorized investigation” if that investigation is “conducted solely on the basis of activities protected by the first amendment to the Constitution … .” 18 U.S.C. § 2709(b)(1) (emphasis added). That standard not only is weak, but, by focusing on the purpose of the investigation, it takes no account whatsoever of collateral burdens on the First Amendment rights of those whose communication records are collected.
Section 2709’s low substantive standards and lack of judicial oversight leave it ripe for abuse. Indeed, “extensive misuse” of the NSL authority has been uncovered in the past, including “the issuance of NSLs without the approval of a properly designated official and the use of NSLs in investigations for which they had not been authorized,” and the issuance of NSLs “after the FISC, citing First Amendment concerns, had twice declined to sign Section 215 orders in the same investigation.” Department of Justice, Office of the Inspector General, A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006 5 (2008).7 The FBI has since “put in place procedures to reduce the risk of noncompliance.” President’s Review Group Report at 92 n.79; see also Department of Justice, Office of the Inspector General, A Review of the FBI’s Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006 14 (2008). Nonetheless, sweeping government discretion in interpreting and applying the substantive standard remains intrinsic to Section 2709.