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Legislation Would Curtail Warrantless Information Demands

Four U.S. congressmen have introduced legislation that would make it more difficult for the U.S. Federal Bureau of Investigation to obtain warrantless subpoenas to get personal information from ISPs, telephone carriers and other businesses.

The legislation, introduced Monday, would put limits on the National Security Letter (NSL) program authorized by the antiterrorism Patriot Act passed by Congress in 2001. The Patriot Act allows the FBI, and potentially other U.S. agencies, to issue letters to businesses or organizations demanding information about targeted users or customers.

E-mail messages and phone records are among the information that the FBI can seek in an NSL.

NSL program does not require government agencies to show probable cause that the target users have committed a crime, and the program does not require that courts approve the subpoena letters. The program also prohibited businesses and organizations from disclosing to the public that they had received a National Security Letter, although in December, a U.S. appeals court struck down that provision as violating free speech guarantees in the U.S. Constitution. The U.S. Department of Justice is appealing that decision.

The new legislation would mandate changes to the NSL program. It would require that the records sought relate to a suspected terrorist or spy, it would allow letter recipients to challenge the demand and its nondisclosure requirements, and it would place a time limit on the gag rule. The bill, introduced by Representatives Jerrold Nadler, a New York Democrat, Jeff Flake, an Arizona Republican, and two others, would also require U.S. agencies to destroy information they hold about individuals who are no longer being investigated.

The legislation is similar to a bill introduced by Nadler and others in 2007. The 2007 bill died in the House Judiciary Committee.

"The National Security Letters Reform Act of 2009 is critical legislation for protecting Americans against government invasion of privacy and, generally, against any administration that would seek to abuse its power," Nadler said in a statement. "It's imperative that we rein in NSL authority to meet constitutional standards and restore essential checks and balances to our government. The FBI must follow the Constitution as it seeks to protect our national security."

The legislation would "restore vital Constitutional protections that were stripped away when Congress rushed the Patriot Act into law" following the Sept. 11, 2001, terrorist attacks on the U.S., Representative Ron Paul, a Texas Republican and co-sponsor of the bill, said in a statement.

A DOJ spokesman was not immediately available to comment on the new legislation. The DOJ, the parent agency of the FBI, has argued that the NSL program is an important tool in fighting terrorism.

The DOJ's Office of Inspector General found FBI abuse of the NSL program in reports released in March 2007 and March 2008. The 2007 report found that 60 percent of a sampling of NSLs had not supplied the required paperwork, although the 2008 report noted improvements by the FBI.

The American Civil Liberties Union, which has filed three lawsuits challenging the NSL program, praised the new legislation.

"To ensure that Americans' privacy and free speech rights are protected, there must be clear oversight and strict guidelines tied to the use of NSLs," Caroline Fredrickson, director of the ACLU Washington Legislative Office, said in a statement.

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