National Security Letters: Proposals in the 112th Congress

Charles Doyle
Senior Specialist in American Public Law

National Security Letters (NSLs) are roughly comparable to administrative subpoenas. Various intelligence agencies use them to demand certain customer information from communications providers, financial institutions, and consumer credit reporting agencies under the Right to Financial Privacy Act, the Fair Credit Reporting Act, the National Security Act, and the Electronic Communications Privacy Act.

The USA PATRIOT Act expanded NSL authority. Later reports of the Department of Justice’s Inspector General indicated that (1) the FBI considered the expanded authority very useful; (2) after expansion the number of NSL requests increased dramatically; (3) the number of requests relating to Americans increased substantially; and (4) FBI use of NSL authority had sometimes failed to comply with statutory, Attorney General, or FBI policies.

Originally, the NSL statutes authorized nondisclosure requirements prohibiting recipients from disclosing receipt or the content of an NSL to anyone, ever. They now permit judicial review of these secrecy provisions. As understood by the courts, recipients may request the issuing agency to seek and justify to the court the continued binding effect of any secrecy requirement.

In conjunction with congressional consideration of three expiring USA PATRIOT Act-related amendments to the Foreign Intelligence Surveillance Act (FISA), the Senate Judiciary Committee recommended that the NSL statutes be returned to their USA PATRIOT Act form and that judicial construction of the nondisclosure provisions be codified, S.Rept. 112-13 to accompany S. 193. Thereafter, Congress extended the FISA provisions in separate legislation, P.L. 112-14 (S. 990). Senator Leahy (S. 1125) and Representative Conyers (H.R. 1805) have reintroduced the NSL proposals found in S. 193. Senator Paul has offered several proposals to require FISA court approval before an NSL could be executed as well as to require NSL minimization standards (S. 1050, S. 1070, S. 1073, and S. 1075).

This report reprints the text of the five NSL statutes as they now appear and as they appeared prior to amendment by the USA PATRIOT Act (to which form they would be returned under S. 1125 and H.R. 1805). Related reports include CRS Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Extended Until June 1, 2015, by Edward C. Liu, and CRS Report RL33320, National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments, by Charles Doyle.


Date of Report: June 30, 2011
Number of Pages: 32
Order Number: R41619
Price: $29.95

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