Geoffrey Stone, the University of Chicago law school professor who served on President Obama’s review group on the NSA and privacy, thinks that the president’s recent speech and immediate reforms are important steps in reining in illegal surveillance. In particular, he praises him for the decision to require the NSA to get warrants from the FISA court to access any metadata that is archived. But he also points out an important reform he refused to endorse:
Third, we recommended that the FBI should no longer be permitted to issue National Security Letters without first obtaining a judicial order, in the absence of an emergency. NSLs enable the FBI to require banks, telephone companies, Internet providers, credit card companies, and the like to turn over the records of specific individuals when the FBI determines that they are relevant to a national security investigation. The FBI issues approximately 20,000 NSLs each year. The process is highly secret and remains so for decades after the fact.
Our judgment was that, in order to ensure the integrity of the program, NSLs generally should not issue without prior judicial approval. The FBI resisted this proposal vehemently. In its view, such a requirement would impair the FBI’s ability to move quickly and efficiently. We rejected that contention, especially in light of the emergency exception. The FBI argued further that because prosecutors in ordinary criminal cases can issue subpoenas to obtain similar information without a court order, it made no sense to have a more burdensome procedure for national security investigations. We disagreed with that position, mainly because of the intensive secrecy surrounding the NSL process. The president sided with the FBI. Although stating that various reforms would be adopted to reduce the secrecy of NSLs — reforms we endorse — he declined to accept our recommendation about judicial orders.
This is a very important reform. Let’s add to this that NSLs should only be issued for terrorism cases, along with “sneak and peek” warrants, which have been used far more often in drug cases than in terrorism cases. But all of that requires congressional action, which is unlikely to happen.