National security letter

A National Security Letter (NSL) is a form of administrative subpoena used by the United States Federal Bureau of Investigation and reportedly by other U.S. Government Agencies including the Central Intelligence Agency and the Department of Defense. It is a demand letter issued to a particular entity or organization to turn over various record and data pertaining to individuals. They require no probable cause or judicial oversight. They also contain a gag order, preventing the recipient of the letter from disclosing that the letter was ever issued.

History

The oldest NSL provisions were created in 1978 as a little-used method of circumventing the Right to Financial Privacy Act. Used in terrorism and espionage investigations, it was limited to foreign powers or persons who the FBI had reasonable cause to believe were agents of a foreign power. Compliance was voluntary, and states' consumer privacy laws often allowed institutions to decline these requests.

In 1986, the Act was amended to compel disclosure, and the Electronic Communications Privacy Act was created with similar provisions in place. Still, neither act identified any penalties for failing to comply with the letter.

A 1993 amendment relaxed the restriction regarding "foreign powers" and allowed the use of an NSL to obtain information on persons not under direct investigation.

USA Patriot Act

Once passed in 2001, section 505 of the USA PATRIOT Act greatly expanded the use of the NSL, allowing their use in scrutiny of US residents or visitors who are not suspects in any criminal investigation. It also granted the privilege to other federal agencies, presumably to allow the department of Homeland Security the same ability to use NSLs. In January of 2007 the New York Times reported that both the Pentagon and the CIA have been issuing National Security Letters. The USA PATRIOT Act reauthorization statutes passed during the 109th Congress added specific penalties for non-compliance or disclosure.

Contentious aspects

Two of the more contentious aspects of the NSL are non-disclosure provisions and a lack of judicial oversight. As it has since its creation in 1978, the NSL contains a clause which forbids the recipient from revealing the contents of the NSL, or even its receipt. The non-disclosure rules have helped prevent the full extent of the NSL program from becoming known, as the FBI has systematically underreported to Congress the number of letters sent. An NSL recipient writing in The Washington Post says "living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case...from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been."

Unlike other subpoenas and warrants, no approval from the judicial branch is required to issue an NSL. An NSL may be issued by "the Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director" with no checks and balances in place until after the NSL has been delivered.

An internal FBI audit found that the bureau violated the rules more than 1000 times in an audit of 10% of its national investigations between 2002 and 2007. Over 20 of these involved requests by agents for information that US law did not permit them to have.

According to 2,500 pages of documents that the FBI turned over to the Electronic Frontier Foundation in response to a Freedom of Information Act lawsuit that the EFF had brought against the government, the FBI used national security letters to obtain data not only on individuals that it saw as targets of an investigation, but also to demand details from telecommunications companies on their “community of interest” — the network of people that the target in turn was in contact with. The bureau's NSL community of interest requests, which it recently discontinued, are part of an ongoing investigation by Justice Department inspector general Glenn A. Fine's office into the misuse of national security letters. Such "community of interest" record gathering is part of a data-mining technique intelligence officials call link analysis, belived to have been used by other intelligence agencies such as the National Security Agency. According to the September 9, 2007 New York Times report on the FBI's use of NSLs to obtain broader information for data mining purposes, "In many cases, the target of a national security letter whose records are being sought is not necessarily the actual subject of a terrorism investigation and may not be suspected at all. Under the Patriot Act, the F.B.I. must assert only that the records gathered through the letter are considered relevant to a terrorism investigation." .

Doe v. Ashcroft

This lack of judicial oversight was at the core of Doe v. Ashcroft, a high-profile test of the usage of NSLs. Brought forward by an unnamed Internet Service Provider who had been served with NSLs, it challenged the constitutionality of the letters, specifically the non-disclosure provisions. Judge Victor Marrero of the Southern District of New York found , on 28 September 2004, that NSLs violate the Fourth ("it has the effect of authorizing coercive searches effectively immune from any judicial process") and First Amendments. However, Judge Marrero issued a stay on his ruling pending the outcome of an appeal of his decision by the government.

In his ruling Judge Marrero wrote "All but the most mettlesome and undaunted NSL recipients would consider themselves effectively barred from consulting an attorney or anyone else who might advise them otherwise," and concluded, "as well as bound to absolute silence about the existence of the NSL...For the reasonable NSL recipient confronted with the NSL's mandatory language and the FBI's conduct related to the NSL, resistance is not a viable option."

Compelled by these findings, subsequent revisions to the USA PATRIOT Act have allowed for greater judicial review, as well as clarification and limitation to the non-disclosure clause. There remains no requirement to seek judicial review or approval prior to issuance of an NSL.

The government appealed Judge Marrero's decision in the 2nd circuit court of appeals which heard arguments from both sides and on 24 May, 2006 issued a ruling dismissing the case as moot - returning it to the lower court due to subsequent changes in the USA PATRIOT Act enacted by congress after the case was filed. In a concurring opinion, Judge Richard Cardamone of the 2nd U.S. Circuit Court of Appeals wrote that he suspected "a perpetual gag on citizen speech of the type advocated so strenuously by the government may likely be unconstitutional." and that a ban on speech and an unending shroud of secrecy concerning government actions "do not fit comfortably with the fundamental rights guaranteed American citizens" and could serve as a cover for official misconduct.

After having the case returned to his court for reconsideration in light of the revisions made to the USA Patriot Act, on September 6, 2007, Judge Victor Marrero struck down the parts of the law that allowed the FBI to compel companies to provide customer records without court authorization, and forbade the companies from telling the customers or anyone else what they had done. In his 103-page opinion, Judge Marerro wrote that the law permitting such NSLs was “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.” Marerro said the the indefinite gag order associated with NSLs violated the First Amendment, the lack of judicial oversight or review was contrary to the separation of powers guarantee, and that the secrecy requirement was so intertwined with the rest of the provision regarding NSLs that the entire provision was unconstitutional. Judge Marrero delayed enforcing his decision ordering the FBI to desist with further NSLs for 90 days pending an appeal by the government. A spokeswoman for the United States attorney’s office in Manhattan said that the Justice Department had not yet decided whether to file one, although it is widely expected.

Another effect of Doe v. Ashcroft has been greater congressional oversight. The above mentioned revisions to the PATRIOT Act also included requirements for semi-annual reporting to Congress. Although the details are classified, a non-classified count of NSLs issued is also required. On April 28 2006, the Department of Justice reported to the House and Senate that in calendar year 2005, "the Government made requests for certain information concerning 3,501 United States persons pursuant to National Security Letters (NSLs). During this time frame, the total number of NSL requests… for information concerning U.S. persons totalled 9,254." A 2007 DOJ audit of the FBI's use of the National Security Letter found that the FBI actually issued 39,346 requests on 10,232 non-U.S. plus 6,519 U.S. persons in 2003, 56,507 requests for 2004 (8,494 non-U.S., 8,943 U.S. persons), and 47,221 requests in 2005 (8,536 non-U.S., 9,475 U.S. persons). Moreover, review of a sample of NSLs in that DOJ report found that twenty-two percent of reviewed NSLs were not included in these higher estimates, suggesting that the true numbers are even higher.

See also

• Lettre de cachet
• Non-disclosure agreement

External links

• National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments (PDF)
• Doe v. Ashcroft decision (PDF)
• Decision of the United States Court of Appeals for the Second Circuit in re: John Doe I et al. v. Alberto Gonzales et al. (PDF)
• Do National Security Letters give excessive surveillance power to the government?