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Thursday, January 6, 2011

National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments

Charles Doyle
Senior Specialist in American Public Law

Five statutory provisions vest government agencies responsible for certain foreign intelligence investigations (principally the Federal Bureau of Investigation [FBI]) with authority to issue written commands comparable to administrative subpoenas. These National Security Letters (NSLs) seek customer and consumer transaction information in national security investigations from communications providers, financial institutions, and credit agencies.

The USA PATRIOT Act expanded the circumstances under which an NSL could be used. Subsequent press accounts suggested that their use had become widespread. Two lower federal courts found the uncertainties, practices, and policies associated with the use of NSL authority contrary to the First Amendment right of freedom of speech. The USA PATRIOT Improvement and Reauthorization Act, P.L. 109-177, and P.L. 109-178, amend the NSL statutes and related law to address some of the concerns raised by critics and the courts. Following amendment, an appellate court dismissed one of the earlier cases as moot and remanded the second for reconsideration in light of the amendments. On remand, the lower federal court again held the NSLs constitutionally suspect. The Court of Appeals, however, ruled that the amended statutes could withstand constitutional scrutiny, if the government confines itself to a procedure which requires (1) notice to the recipient of its option to object to a secrecy requirement; (2) upon recipient objection, prompt judicial review at the government’s petition and burden; and (3) meaningful judicial review without conclusive weight afforded a government certification of risk. Using this procedure, the district upheld continuation of the Doe nondisclosure requirement following an ex parte, in camera hearing and granted the plaintiff’s motion for an unclassified, redacted summary of the government declaration on which the court’s decision was based.

A report of the Department of Justice’s Inspector General found that in its early use of its expanded USA PATRIOT Act authority the FBI had “used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies,” but that no criminal laws had been broken. A year later, a second IG report confirmed the findings of the first, and noted the corrective measures taken in response. A third IG report, critical of the FBI’s use of exigent letters and other informal NL alternatives, noted that the practice had been stopped and related problems addressed.

This is an abridged version of CRS Report RL33320, National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments, without the footnotes, appendixes, and most of the citations to authority found in the longer report.

Date of Report: December 27, 2010
Number of Pages: 9
Order Number: RS22406
Price: $19.95

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