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Tuesday, December 17, 2013

National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments - RL33320

Charles Doyle
Senior Specialist in American Public Law

Five federal statutes authorize intelligence officials to request certain business record information in connection with national security investigations. The authority to issue these national security letters (NSLs) is comparable to the authority to issue administrative subpoenas. The USA PATRIOT Act expanded the authority under four of the NSL statutes and created the fifth. Thereafter, the authority has been reported to have been widely used. Prospects of its continued use dimmed, however, after two lower federal courts held that the lack of judicial review and the absolute confidentiality requirements in one of the statutes rendered it constitutionally suspect.

A report by the Department of Justice’s Inspector General (IG) found that in its pre-amendment use of 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 informal NSL alternatives, noted that the practice had been stopped and related problems addressed.

The USA PATRIOT Improvement and Reauthorization Act (H.R. 3199), P.L. 109-177, and its companion, P.L. 109-178, amended the five NSL sections to expressly provide for judicial review of both the NSLs and the confidentiality requirements that attend them. The sections have also been made explicitly judicially enforceable and sanctions recognized for failure to comply with an NSL request or to breach NSL confidentiality requirements with the intent to obstruct justice. The use of the authority has been made subject to greater congressional oversight. Following amendment, a federal district court found the amended procedure contrary to the demands of the First Amendment. The U.S. Court of Appeals for the Second Circuit, however, ruled that the amended statutes could withstand constitutional scrutiny, if the government confined 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 court 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. More recently, a district court in the Ninth Circuit agreed the amended nondisclosure and judicial review provisions were constitutionally defective, but could not agree to the Second Circuit’s narrowing construction or that the NSL statute could be saved by severing the deficient disclosure provisions. The district court stayed its order enjoining issuance of further NSLs or enforcement of any accompanying nondisclosure provisions, however, pending appeal to the Ninth Circuit.

The text of the five provisions—Section 1114(a)(5) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)); Sections 626 and 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u, 1681v); Section 2709 of Title 18 of the United States Code; and Section 802 of the National Security Act (50 U.S.C. 3162)—in their amended form has been appended.

This report is available abridged—without footnotes, appendixes, and most of the citations to authority—as CRS Report RS22406, National SecurityLetters in Foreign Intelligence Investigations: A Glimpse of the LegalBackground and Recent Amendments, by Charles Doyle.

Date of Report: November 22, 2013
Number of Pages: 39
Order Number: RL33320
Price: $29.95

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