Especially when the Congress likes to give the Telcos immunity anyway!

Should be The Volokh Conspiracy…

In order for even this limited decision to have any real impact, there needs to be a revision of the law providing that misuse/abuse of the NSL process should result in the stripping of the agency and its officials from any form of either absolute or qualified immunity in any Section 1983 action. Given the very clear First Amendment implications of the gag provision, combined with the pretty narrow legal restriction of NSLs to situations genuinely implicating national security concerns (primarily terrorism or certain espionage cases) where the urgency of the situation is directly related to an imminent threat. Child porn, drug trafficking, money laundering, IP infringements and other routine crimes, already don’t qualify and are the primary sources of abuse.

Not only should official immunity be eliminated as a defense if the target or subject is not engaged in such activities (directly, or by aiding and abetting or as a genuine co-conspirator), but there should be a generous statute of limitations on such actions; an internal “cop” appointed by the FISA court and answerable only to it, which otherwise processes requests for warrants and subpoenas in national security cases based on affidavits demonstrating a somewhat lower level of probable cause in routine criminal cases, who audits every single NSL and is charged with an obligation to submit offending letters to the FOIA court for evaluation. In cases retroactively determined to have been an abuse, the NSL must be withdrawn, the gag lifted, and the subjects or targets informed of it, because any evidence gathered that is traceable to it is unlawfully gained and subject to exclusion in the criminal proceeding under the Fourth Amendment. If it is part of a legitimate ongoing investigation, the NSL should become an offical part of the case file, subject to the mandatory disclosure requirements of Brady if the target is charged.

We’re talking about domestic investigations here; Constitutional strictures do apply. Such processes as I suggest, which are retroactive under this scheme, do not even arguably present an obstacle to the agency efficiently staying hot on the trail of someone who presents a serious national security threat or identify their target. It only provides checks and balances, and potential liability for those who abuse, or allow the abuse, of this very clear exempting of domestic law enforcement agencies’ obligations to afford people fundamental protections of the Fourth Amendment and of their entitlement to due process. And in the case of the ISP, or librarian, or book store owner, or whomever, there are obvious First Amendment problems, which is why courts are instructed to impose gag orders only where absolutely necessary to protect the parties from potential deprivations of due process rights, and deprivation of the public to know what’s going on in those proceedings (increasingly, at the federal level, judges are losing discretion to just seal cases on their dockets to hide them from public scrutiny).

Field agents who abuse NSLs to do what they can’t by following proper procedures are breaking the law, and violating peoples’ constitutional rights with almost 100% impunity. Even assuming that there is a legitimate need for these things in truly dire circumstances, using them as an end-around the general requirement that they go to a district judge and demonstrate probable cause for a warrant to issue. That corrupts the entire criminal justice system and gives law enforcement nearly unreviewable powers. Indeed, in run of the mill federal investigations, internal DOJ procedures require that when it becomes evident that their status has been upgraded from subject to target, a target letter must be sent, because the next step is the grand jury.

I would also add that improperly issued NSLs should at an appropriate time be placed in a publicly available database, provided only that if the criminal investigation is still ongoing, the agency need only submit it to the Chief Judge of the district within which it was served, along with the Chief Judge of whatever district is likely to have jurisdiction over the criminal case if an indictment is handed down. Once that happens, and a prosecution is commenced, the NSL and related docs should be identified and docketed as Brady materials, disclosed to the defendant at the commencement of the investigation, with full, complete and meaningful opportunity for defendant’s counsel to probe, take discovery, interview under oath agents involved, and otherwise be afforded an opportunity to challenge it — and all evidence obtained through it.

And whatever happens in the criminal proceeding, the aggrieved party should be clearly informed that he may be able to base a Section 1983 suit, independent of the criminal case, for the Constitutional violation.

Moreover, both the rules governing these letters, and the laws, rules and procedures governing the FISA court, should be revised to provide that within 24 hours of issuance of an NSL, a copy must be transmitted to that court which would have the power to commence an ex parte proceeding and require the feds either to issue notice to the recipient that it has been withdrawn, or take all necessary and immediate steps to convert the NSL to a proper FISA warrant, complete with satisfying the FISA judge that there was a basis, it was only the urgent time-sensitive nature that required use of the letter, which bypasses the long-established procedure for obtaining proper FISA warrants. If they fail, again, the FISA court should enter an order to show cause why the agents and their superiors should not be sanctioned, the potentially aggrieved parties given opportunity to appear and be heard, and if they prevail, given a clear and expeditious path to a district court with jurisdiction where they could file their Section 1983 action.

If properly adhered to, this process and set of rules would in no way slow down genuine domestic investigations of national security threats. It would, however, put a stop or at least curtail substantially, the notorious uses to which they’ve been put to do an end around the fairly simple, and quick, procedures for obtaining a duly-authorized warrant, by a court that does have the power to order the recipient not to disclose it to anyone — until some later time, when the disclosure no longer presents a potential threat to the integrity of the investigation.

Meanwhile, with a more robust set of rules, ISPs and telcoms could actually start competing on the basis of their policies for handling these things. Personally, I’d switch to one that automatically gives notice to the feds upon receipt that they intend to challenge it, over one with no such policy. Heck, a truly competitive company who understands its job is to serve and protect its customers, could even take the logical step of adding a waiver-of-exemption term to their user agreements: ‘our policy is to question and challenge NSLs served on us, to the extent provided for by law, and we hereby waive any exemptions from civil liability afforded to us by Congress.’

But my true bottom line is that there is virtually no reason for resort to NSLs. The law creating these things was adopted in 1978. Growth of agencies and resources, radical improvements of our technology and communications infrastructure, the existence of armies of gov’t lawyers in DC, where the FISA court is located, and the fact that in most courts there are already ways to quickly track down a judge at any hour to present justifications for warrants and such, to me limits the need for NSLs to truly imminent circumstances, such as to track a terrorist where there is good information she or he is about to move, or go underground, or finish building the bomb or whatever. But that is almost never how they are used, even in national security investigations. The few hours it would take to get someone before a FISA judge, the lower requirements of what must be presented to that judge under FISA, and all the circumstances of the situation, would in only very rare cases unreasonably delay even a hot investigation. Remember, these are informational demands — not search and seizure warrants or arrest warrants. And typically, they are one or two degrees or more separated from the actual target.

FISA was originally intended to give agencies some leeway in urgent national security situations to quickly follow leads and obtain potentially critical information, while affording recipients, subjects and targets some level of protection of their civil liberties. We need to restore that balance, and call to account those agents and agencies who abuse this very rare privilege.