Charles Doyle
Senior Specialist in American Public Law
Five federal statutes authorize various intelligence agencies to demand, through National Security Letters (NSLs), 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 Electronic Communications Privacy Act. The USA PATRIOT Act expanded NSL authority. Later reports of the Department of Justice Inspector General indicated that (1) the FBI considered the expanded authority very useful; (2) after expansion the number of NSLs 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 the 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.
Several USA PATRIOT Act provisions are scheduled to expire on February 28, 2011. The NSL statutory provisions are not among them. Nevertheless, several bills were introduced in the 111th Congress which would have amended and in some cases repealed NSL authority. The bills included: (1) the National Security Letter Reform Act of 2009 (H.R. 1800), introduced by Representative Nadler; (2) the USA PATRIOT Amendments Act of 2009 (H.R. 3845), introduced by Representative Conyers and reported out by the House Judiciary Committee ( H.Rept. 111- 382, Pt.1); (3) the Counterterrorism Authorities Improvements Act of 2009 (H.R. 3969), introduced by Representative Reyes; (4) the Judicious Use of Surveillance Tools in Counterterrorism Efforts Act of 2009 (JUSTICE Act) (S. 1686/H.R. 4005), introduced by Senator Feingold and Representative Holt; and (5) the USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692), introduced by Senator Leahy and reported out by the Senate Judiciary Committee (S.Rept. 111-92). A sixth bill, the USA PATRIOT Reauthorization Act of 2009 (S. 2336), introduced by Senator Sessions, which would have neither amended nor repealed NSL authority, would have amended the judicial review provisions governing NSL recipient secrecy requirements.
In addition to sunset and repeal, the bills raise issues involving amendment of nondisclosure requirements; the promulgation of standards to minimize capturing, using, and holding (long term) NSL generated information, continued periodic IG audits and reports, and limitations on statutory provisions thought by some to permit circumvention of NSL statutory requirements. The 111th Congress adjourned without further action on any of the proposals.
This report includes a chart comparing the provisions of the bills and current law. It also 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 have returned under some of the bills).
Date of Report: December 27, 2010
Number of Pages: 39
Order Number: R40887
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
Senior Specialist in American Public Law
Five federal statutes authorize various intelligence agencies to demand, through National Security Letters (NSLs), 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 Electronic Communications Privacy Act. The USA PATRIOT Act expanded NSL authority. Later reports of the Department of Justice Inspector General indicated that (1) the FBI considered the expanded authority very useful; (2) after expansion the number of NSLs 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 the 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.
Several USA PATRIOT Act provisions are scheduled to expire on February 28, 2011. The NSL statutory provisions are not among them. Nevertheless, several bills were introduced in the 111th Congress which would have amended and in some cases repealed NSL authority. The bills included: (1) the National Security Letter Reform Act of 2009 (H.R. 1800), introduced by Representative Nadler; (2) the USA PATRIOT Amendments Act of 2009 (H.R. 3845), introduced by Representative Conyers and reported out by the House Judiciary Committee ( H.Rept. 111- 382, Pt.1); (3) the Counterterrorism Authorities Improvements Act of 2009 (H.R. 3969), introduced by Representative Reyes; (4) the Judicious Use of Surveillance Tools in Counterterrorism Efforts Act of 2009 (JUSTICE Act) (S. 1686/H.R. 4005), introduced by Senator Feingold and Representative Holt; and (5) the USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692), introduced by Senator Leahy and reported out by the Senate Judiciary Committee (S.Rept. 111-92). A sixth bill, the USA PATRIOT Reauthorization Act of 2009 (S. 2336), introduced by Senator Sessions, which would have neither amended nor repealed NSL authority, would have amended the judicial review provisions governing NSL recipient secrecy requirements.
In addition to sunset and repeal, the bills raise issues involving amendment of nondisclosure requirements; the promulgation of standards to minimize capturing, using, and holding (long term) NSL generated information, continued periodic IG audits and reports, and limitations on statutory provisions thought by some to permit circumvention of NSL statutory requirements. The 111th Congress adjourned without further action on any of the proposals.
This report includes a chart comparing the provisions of the bills and current law. It also 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 have returned under some of the bills).
Date of Report: December 27, 2010
Number of Pages: 39
Order Number: R40887
Price: $29.95
Follow us on TWITTER at http://www.twitter.com/alertsPHP or #CRSreports
Document available via e-mail as a pdf file or in paper form.
To order, e-mail Penny Hill Press or call us at 301-253-0881. Provide a Visa, MasterCard, American Express, or Discover card number, expiration date, and name on the card. Indicate whether you want e-mail or postal delivery. Phone orders are preferred and receive priority processing.
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