Appellate court judge, Hon. Richard Leon, ruled today that the mass collection of American’s telephone data is “Orewellian” and most likely unconstitutional. What exactly is a “National Security Letter” (or “NSL” for short)? Actually, NSL’s have been around for quite some time, but the USA PATRIOT Act greatly expanded its functionality in the wake of 9/11. An NSL is a written demand by the FBI that compels Internet Service Providers (ISPs), credit companies, financial services firms, and other organizations to turn over confidential customer information. The written demand does not require court approval and comes with a built-in gag order that prevents the recipient from disclosing the fact that they have been served a NSL. Thousands of these Letters have been issued by the FBI over the years, and it has been very cost prohibitive for many small businesses to challenge the efficacy of the nondisclosure requirement.
But for the disclosures of Edward Snowden, little is known about exactly how the NSA Spying Program really works. It is known that after 9/11, for example, the FBI paid multimillion-dollar contracts to AT&T and Verizon requiring the telecom companies to place employees inside the FBI, and to them grant the FBI access to the telecom databases so they could immediately service FBI requests for telephone records. In short, all the data that travels across the Internet is carried on “fiber optic splitter cables” that allows the information to be mirrored or “split” – the split data is an exact carbon copy of each other whereby one copy is sent to its intended destination, and the other to the NSA for collection and analytics. Once the government has analyzed the information, the data is funneled to investigative agencies, like the FBI and DEA, to help launch criminal investigations of Americans.
The Department of Justice Inspector General determined that the AT&T and Verizon employees let FBI agents illegally look at customer records without paperwork, and even wrote NSLs for the FBI. At the very minimum, employees of Verizon and AT&T were acting as de facto government agents whenever they assisted the FBI in its request for telephone data, and that should have required a court to review the information request.