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Tuesday, December 24, 2013

National Security Letters: Proposal in the 113th Congress - R43322

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 bills in the 113
th Congress that would amend the NSL statutes fall into four categories: (1) the grounds for issuing an NSL; (2) confidentiality requirements and judicial review; (3) reports and audits; and (4) sunset and repeal. S. 1551 (Wyden) and H.R. 3361 (Sensenbrenner)/ S. 1599 (Leahy) would define more precisely the circumstances under which an NSL might be issued. Initially, the U.S. Court of Appeals for the Second Circuit and later the District Court for the Northern District of California concluded that the statutory secrecy and judicial review provisions relating to NSLs, read to their fullest, are inconsistent with the proscriptions of the First Amendment right to free speech and the principles of separation of powers. S. 1215 (Leahy) and H.R. 3361/S. 1599 would amend the provisions in question roughly along lines suggested by the Second Circuit.

In the past, Congress has counterbalanced expanded NSL authority with increased oversight mechanisms. For example, it directed the Department of Justice’s Inspector General to conduct an audit of NSL authority from 2001 to 2006, and instructed the Attorney General to report to Congress annually on the extent of NSL use. Several proposals would supplement the existing mechanisms. S. 1215, S. 1551, and H.R. 3361/S. 1599 would call for greater detail in the Attorney General’s annual reports. H.R. 3035 (Lofgren), S. 1551, and H.R. 3361/S. 1599 would authorize recipients to issue public reports on the NSLs they receive.

As an additional oversight tool, S. 1215 and H.R. 3361/S. 1599 would return all but two of the NSL statutes to the pre-USA PATRIOT Act form, effective June 1, 2015. The exceptions are the National Security Act NSL statute, which evokes few privacy concerns, and the sweeping, USA PATRIOT Act-born, Fair Credit Reporting Act NSL statute, which the bills would repeal.

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 IntelligenceSurveillance Act (FISA) Extended Until June 1, 2015, by Edward C. Liu, and CRS Report RL33320, National Security Letters in Foreign IntelligenceInvestigations: Legal Background, by Charles Doyle.

Date of Report: November 22, 2013
Number of Pages: 36
Order Number: R43322
Price: $29.95

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