At a wide-ranging oversight hearing convened here by the Senate Judiciary Committee, FBI Director Robert Mueller faced a number of questions from Democrats voicing concern over the scope of the controversial investigative tactic, known as a National Security Letter, or NSL.
Federal law requires communication service providers to provide records about individuals in response to such letters, which do not require the use of a court warrant. to that measure's constitutionality are still pending.
Until recently, recipients of such letters were also not allowed to disclose the FBI's request to anyone. The final Patriot Act reauthorization approved earlier this year loosened those requirements somewhat, allowing recipients to appeal the requests to a court and to seek legal advice.
On Friday, the Justice Department reported to Congress that it had made 9,254 such requests pertaining to 3,501 "U.S. persons" in 2005, according to a copy of the agency's letter posted at the Federation of American Scientists Web site. A Washington Post report last fall, often cited by politicians dissatisfied with the Patriot Act, pegged the number of letters at 30,000 per year.
Sen. Russ Feingold, a Wisconsin Democrat who has been one of the most vocal critics of the Patriot Act, said Tuesday that the number was "far, far larger" than the number of requests made under Section 215 of the Patriot Act. Sometimes called the "library provision," Section 215 lets investigators obtain business and personal records but first requires a court order and prior approval from top FBI officials.
"I fear the reason might be that in Section 215 they have to go before a judge, and with National Security Letters, they don't," he said.
Mueller said he hadn't given much thought to the disparity. "I'd have to get back to you on that," he told Feingold.
Sen. Richard Durbin, an Illinois Democrat, said he wanted Mueller's assurance that the most recent incarnation of the Patriot Act makes it clear that libraries are generally not considered Internet service providers that would be subject to complying with national security letters.
Library advocacy groups have long voiced concerns over the Patriot Act's potential impact on citizens' privacy and the possibility of its allowing for investigative "fishing expeditions." Durbin and Sen. John Sununu, a New Hampshire Republican, have attempted to clarify that libraries performing their "traditional functions," including providing basic Internet access, would not have to comply with national security letter requests.
Mueller said he'd have to go back and look at the "specific language in the statute," adding, "it's somewhat of a complicated provision, and I want to be precise in my answer to you."
"There is a concern across America and this community...I thought we'd put it to rest," Durbin said. "Now I'm going to have restless nights until you get back to me."