National Security Letter

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National Security Letters (NSL) are a form of administrative subpoena used by the Federal Bureau of Investigation. The oldest NSL provisions were created in 1978 as a little-used method of circumventing the Right to Financial Privacy Act. Used in terrorism and espionage investigations, it was limited to foreign powers or persons who the FBI had reasonable cause to believe were agents of a foreign power. Compliance was voluntary, and states' consumer privacy laws often allowed institutions to decline these requests. In 1986, the Act was amended to compel disclosure, and the Electronic Communication Privacy Act was created with similar provisions in place. Still, neither act identified any penalties for failing to comply with the subpoena. A 1993 amendment relaxed the restriction regarding "foreign powers" and allowed the use of an NSL to obtain information on persons not under direct investigation. Once passed in 2001, section 505 of the USA PATRIOT Act greatly expanded the use of the NSL, allowing their use in scrutiny of US residents or visitors who are not suspects in any criminal investigation. It also granted the privilege to other federal agencies, presumably to allow the department of Homeland Security the same ability to use NSLs. The USA PATRIOT Act reauthorization statutes passed during the 109th Congress added specific penalties for non-compliance or disclosure.

Two of the more contentious aspects of the NSL are non-disclosure provisions and a lack of judicial oversight. As it has since its creation in 1978, the NSL contains a clause which forbids the recipient from revealing the contents of the NSL, or even its receipt. Unlike other subpoenas and warrants, no approval from the judicial branch is required to issue an NSL. An NSL may be issued by "the Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director"^[1] with no checks and balances in place until after the NSL has been delivered.

This lack of judicial oversight was at the core of Doe v. Ashcroft, a high-profile test of the usage of NSLs. Brought forward by four librarians who had been served with NSLs, it challenged the constitutionality of the letters, specifically the non-disclosure provisions. The court found, on 28 September 2004, that NSLs violate the Fourth ("it has the effect of authorizing coercive searches effectively immune from any judicial process") and First Amendments. Compelled by these findings, subsequent revisions to the USA PATRIOT Act have allowed for greater judicial review, as well as clarification and limitation to the non-disclosure clause.^[2] There remains no requirement to seek judicial review or approval prior to issuance of an NSL.

Another effect of Doe v. Ashcroft has been greater congressional oversight. The above mentioned revisions to the PATRIOT Act also included requirements for semi-annual reporting to Congress. Although the details are classified, a non-classified count of NSLs issued is also required. On April 28, 2006, the Department of Justice reported to the House and Senate that "the Government made requests for certain information concerning 3,501 United States persons pursuant to National Security Letters (NSLs). During this time frame, the total number of NSL requests… for information concerning U.S. persons totalled 9,254."^[3]