Bart Gellman’s NSL

Politico has published a short piece based on an interview with Washington Post reporter Barton Gellman, who says  he’s been told that at some point his telephone records were obtained via a National Security Letter.  If this is true, the NSL in question would need to have been issued pursuant to 18 U.S.C. §2709, the only NSL statute providing for access to telecommunications records.  But there are at least two ways in which such an NSL would appear to strain the limits of that authority.

First, §2709 may only be used in connection with an “authorized investigation to protect against international terrorism or clandestine intelligence activities.”  Assuming Bart is not suspected of plotting to blow up any airplanes, it seems probable that we’re dealing here with an investigation of leaks of classified information to press. Yet such leaks—even when they clearly involve a violation of the law—do not obviously satisfy the traditional definition of “clandestine intelligence activities.”

The FBI’s own operation manual defines “intelligence activities” as “any activity conducted for intelligence purposes or to affect political or governmental processes by, for, or on behalf of a foreign power.” A report on NSL authorities from the Congressional Research Service characterizes them as tools to “protect against international terrorism or foreign spying,” where “clandestine intelligence activities” and “foreign spying” are clearly understood to be equivalent phrases. Notwithstanding a few wild speculations, we’ve seen no real evidence to indicate that Edward Snowden acted “by, for, or on behalf of a foreign power.”

While financial and travel records pertaining to Snowden himself would be obtainable via NSL pursuant to 50 U.S.C. 3162, it seems questionable whether the other NSL authorities should be available at all for an investigation into his disclosures. Indeed, the existence of a separate and more limited NSL authority specifically designed for criminal investigation (or security vetting) of suspected insider leakers, which excludes the power to obtain phone records and covers only records pertaining directly to the government employee, suggests that Congress understood such investigations as a distinct category in most cases.

It’s possible, of course, that the instance Gellman is referencing relates to a pre-Snowden leak investigation. A 2008 Inspector General report on NSL abuses references a case in which the phone records of at least two unnamed Washington Post reporters were improperly obtained, and it would not be terribly shocking if one of them had been Gellman.

Even assuming a media leak investigation has the appropriate “foreign power” nexus, there’s a second potential problem—though this one may be a problem with the underlying statute. A clause added to the NSL provisions by the USA Patriot Act—to compensate for the elimination of the requirement that NSLs target suspected agents of a foreign power—provides that they may be used for an authorized investigation “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.” The sole basis for seeking Gellman’s records would, of course, be his First Amendment–protected newsgathering and reporting activities.

The obvious rejoinder here is that the investigation to which Gellman’s phone records were relevant was not an investigation “of” Gellman, but rather of Snowden (or some other source), whose misappropriation and disclosure of classified documents is not protected by the First Amendment. The new language is thus inapplicable so long as Gellman himself is not the subject of the investigation. Note that no such loophole would be available if the government had wished to “search or seize” documents related to Gellman’s journalism, since the Privacy Protection Act of 1980 mostly bars such seizures unless the journalist is the one suspected of criminal conduct. (It was precisely to circumvent this prohibition that the Justice Department notoriously claimed Fox reporter James Rosen was engaged in a criminal conspiracy with one of his sources—only to later insist to an outrage press that they’d never had any intention of charging him.)

Since current law does not count the compelled production of phone records as a “search or seizure,”  a strictly literal reading of the text would appear to permit  that loophole here—but it is surely worth noting that this renders the protective clause in the NSL statute rather pointless. After all, an investigation of a U.S. person conducted solely on the basis of First Amendment protected activity should never be opened in the first place. If the First Amendment caveat in the NSL statute offers no independent protection to NSL targets who are not investigative subjects, then Congress—somewhat oddly and redundantly—has provided only that a specific investigative tool should not be used in service of inherently illegitimate investigations. It would make more sense if Congress had intended to ensure that a person’s records would not be obtained in this manner solely as a result of their protected First Amendment conduct—so that a person’s records could not, say, be deemed “relevant” to an investigation “of” Al Qaeda on the grounds that they attend a conservative mosque—but failed to craft language that excluded cases of this sort clearly enough. Whether or not that was what members of Congress imagined they were doing in 2001, it would be a wise thing to do now.

In any event, we know that in the past the FBI has displayed a less stringent understanding of this clause than even the (normally quite accommodating) Foreign Intelligence Surveillance Court: Another Inspector General report rapped the Bureau’s knuckles for using NSLs to obtain records even after the FISC had rejected a §215 application for the same records on First Amendment grounds. Which strikes me as a decent argument for making the FBI go through a court before they access phone records. 

About the Author(s)

Julian Sanchez

Senior Fellow at the Cato Institute, contributing Editor for Reason magazine. Member of the editorial board at Just Security. You can follow him on Twitter (@normative).