National security letter

A National security letter issued to the Internet Archive demanding information about a user

A national security letter (NSL) is an administrative subpoena issued by the Federal Bureau of Investigation (FBI) in authorized national security investigations "to protect against international terrorism or clandestine intelligence activities" (i.e., spying). 18 U.S.C. § 2709(b). Federal law (Electronic Communications Privacy Act (18 U.S.C. § 2709), Fair Credit Reporting Act (15 U.S.C. §§ 1681u and 1681v), and Right to Financial Privacy Act (12 U.S.C. § 3414), authorizes the FBI to seek such information that is "relevant" to an authorized national security investigation. By law, NSLs can request only non-content information, such as transactional records, phone numbers dialed, or sender or recipient email addresses.^[1] NSLs may contain a nondisclosure provision -- preventing the recipient of an NSL from disclosing that the FBI had requested the information -- only if the Director of the FBI (or his designee) authorizes the nondisclosure requirement. He can authorize the nondisclosure requirement only after certifying “that otherwise there may result a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person” 18 U.S.C. § 2709(c). Even then the recipient of the NSL can still challenge the nondisclosure requirement in federal court. 18 U.S.C. § 3511. The nondisclosure requirement was ruled unconstitutional as an infringement of free speech in the Doe v. Gonzales case, but that decision was later superseded in 2008 by the Second Circuit Court of Appeals after it held the USA PATRIOT Improvement and Reauthorization Act gave the recipient of an NSL that included a nondisclosure provision the right to challenge the nondisclosure requirement in federal court. Recently, on March 14, 2013, Federal Judge Susan Illston of Federal District Court in San Francisco struck down the law authorizing the FBI to issue NSLs, writing that the prohibition on disclosure of receipt of an NSL made the entire statute "impermissibly overbroad" under the First Amendment. Judge Illston's then stayed implementation of her ruling to allow the United States Department of Justice to appeal the decision to the United States Court of Appeals for Ninth Circuit.^[2][3]

History

The oldest NSL provisions were created in 1978 as a little-used investigative tool in terrorism and espionage investigations to obtain financial records. Under the Right to Financial Privacy Act (RFPA), the FBI could obtain the records only if the FBI could first demonstrate the person was a foreign power or an agent of a foreign power. Compliance by the recipient of the NSL was voluntary, and states' consumer privacy laws often allowed financial institutions to decline the requests.^[4] In 1986, Congress amended RFPA to allow the government to compel disclosure of the requested information. Also in 1986, Congress passed the Electronic Communications Privacy Act, which created provisions similar to the RFPA that allowed the FBI to issue NSLs. Still, neither act included penalties for failing to comply with the NSL.

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.

In 2001, section 505 of the USA PATRIOT Act greatly expanded the use of the NSL.

On March 9, 2006 the USA PATRIOT Improvement and Reauthorization Act was signed into law, which allowed for judicial review of an NSL after it was received. It could be repealed or modified if it was found that a request for information was "unreasonable, oppressive, or otherwise unlawful". The nondisclosure requirement was also weakened. The judiciary could repeal the gag order only if the court found that it was made in "bad faith". Otherwise the court had to take the government request for nondisclosure as conclusive. Other amendments included that the recipient of an NSL was allowed to explicitly inform their attorney about the request and the government had to specifically rely on the judiciary for enforcing noncompliance with an NSL. These amendments were done in light of the 2004 Doe v. Ashcroft ruling.^[5]

In 2008, Congress considered proposals to place new controls on the FBI's use of NSLs. A House bill would have tightened the language governing when national security letters could be used, by requiring that they clearly pertain to investigations of a foreign power or an agent instead of just being considered "relevant" to such investigations. It would also require that the FBI destroy information that had been illegally obtained, which existing rules do not require, and it would allow the recipient of a letter to file a civil lawsuit if the missive is found to be illegal or without sufficient factual justification. A Senate bill would require the FBI to track its use of the letters more carefully and would narrow the types of records that can be obtained with a letter to those that are least sensitive.^[6]

Patriot Act

Once passed in 2001, section 505 of the USA PATRIOT Act greatly expanded the use of the NSL, allowing their use in seeking any information relevant to an investigation of terrorism or clandestine intelligence activity.^[7] It also granted the privilege to other federal agencies, presumably to allow the department of Homeland Security the same ability to use NSLs. In January 2007 The New York Times reported that both the Pentagon and the CIA have been issuing national security letters.^[8] The Patriot Act reauthorization statutes passed during the 109th Congress added specific penalties for non-compliance or disclosure.

Contentious aspects

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 that forbids the recipient from revealing the contents of the NSL, or even its receipt. The non-disclosure rules have helped prevent the full extent of the NSL program from becoming known, as the FBI has systematically underreported to Congress the number of letters sent.^[9] An NSL recipient (later revealed to be Nicholas Merrill) writing in The Washington Post says "living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case...from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been."^[9]

Unlike other subpoenas and warrants, no approval from the judicial branch is required to issue an NSL, as NSLs request information which carries no constitutionally protected reasonable expectation of privacy as indicated by Smith v. Maryland.^[10] 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",^[11] but after it is received its recipient may challenge it in court.^[12]

An internal FBI audit found that the bureau violated the rules more than 1000 times in an audit of 10% of its national investigations between 2002 and 2007.^[13] Over 20 of these involved requests by agents for information that US law did not permit them to have.

According to 2,500 pages of documents that the FBI turned over to the Electronic Frontier Foundation in response to a Freedom of Information Act lawsuit that the EFF had brought against the government, the FBI used national security letters to obtain data not only on individuals that it saw as targets of an investigation, but also to demand details from telecommunications companies on their “community of interest” — the network of people that the target in turn was in contact with. The bureau's NSL community of interest requests, which it recently discontinued, are part of an ongoing investigation by Justice Department inspector general Glenn A. Fine's office into the misuse of national security letters. Such "community of interest" record gathering is part of a data-mining technique intelligence officials call link analysis, believed to have been used by other intelligence agencies such as the National Security Agency. According to the September 9, 2007 The New York Times report on the FBI's use of NSLs to obtain broader information for data mining purposes, "In many cases, the target of a national security letter whose records are being sought is not necessarily the actual subject of a terrorism investigation and may not be suspected at all. Under the USA PATRIOT Act, the F.B.I. must assert only that the records gathered through the letter are considered relevant to a terrorism investigation." ^[14]

In April, 2008, the American Civil Liberties Union alleged that the military was using the FBI to skirt legal restrictions on domestic surveillance to obtain private records of Americans' Internet service providers, financial institutions and telephone companies. The ACLU based its allegation on a review of more than 1,000 documents turned over to it by the Defense Department in response to a suit the rights group filed in 2007 for documents related to national security letters.^[15] The same month, the Electronic Frontier Foundation alleged that documents obtained from the FBI in response to its own Freedom of Information Act lawsuit showed that top FBI officials were aware of the bureau's misuse of national security letters for nearly two years before the misuse was reported.^[16]

In May, 2008, the FBI reached a legal settlement with the Internet Archive, which had challenged a national security letter served on it in November 2007. The FBI withdrew the NSL and agreed to lift a portion of the gag order that accompanied it.^[17]

Doe v. Ashcroft

Letter in Doe v. Ashcroft case

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 the ACLU on behalf of an unnamed^[18] Internet Service Provider ^[19] who had been served with NSLs, it challenged the constitutionality of the letters, specifically the non-disclosure provisions. Judge Victor Marrero of the Southern District of New York found on 28 September 2004, that NSLs violate the Fourth Amendment ("it has the effect of authorizing coercive searches effectively immune from any judicial process") and First Amendment. However, Judge Marrero issued a stay on his ruling pending the outcome of an appeal of his decision by the government.

In his ruling Judge Marrero wrote "All but the most mettlesome and undaunted NSL recipients would consider themselves effectively barred from consulting an attorney or anyone else who might advise them otherwise," and concluded, "as well as bound to absolute silence about the existence of the NSL...For the reasonable NSL recipient confronted with the NSL's mandatory language and the FBI's conduct related to the NSL, resistance is not a viable option."^[20]

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.^[21] There remains no requirement to seek judicial review or approval prior to issuance of an NSL.

The government appealed Judge Marrero's decision in the 2nd Circuit Court of Appeals which heard arguments from both sides and on 24 May 2006 issued a ruling dismissing the case as moot – returning it to the lower court due to subsequent changes in the USA PATRIOT Act enacted by Congress after the case was filed. In a concurring opinion, Judge Richard Cardamone of the 2nd U.S. Circuit Court of Appeals wrote that he suspected "a perpetual gag on citizen speech of the type advocated so strenuously by the government may likely be unconstitutional."^[22][23] and that a ban on speech and an unending shroud of secrecy concerning government actions "do not fit comfortably with the fundamental rights guaranteed American citizens"^[22] and could serve as a cover for official misconduct.

Letter in the Doe v. Gonzales case

After having the case returned to his court for reconsideration in light of the revisions made to the USA PATRIOT Act, on September 6, 2007, Judge Victor Marrero struck down the parts of the law that allowed the FBI to compel companies to provide customer records without court authorization and forbade the companies from telling the customers or anyone else what they had done. In his 103-page opinion, Judge Marrero wrote that the law permitting such NSLs was “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.” Marrero said the indefinite gag order associated with NSLs violated the First Amendment, the lack of judicial oversight or review was contrary to the separation of powers guarantee, and that the secrecy requirement was so intertwined with the rest of the provision regarding NSLs that the entire provision was unconstitutional. Judge Marrero delayed enforcing his decision ordering the FBI to desist with further NSLs for 90 days pending an appeal by the government.^[24][25] The government appealed the decision and oral argument was heard on August 27, 2008. The case, now known as Doe v. Holder (the current Attorney General). On Monday, December 15, 2008, the appeals court supported the lower court's ruling.^[26]

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 in calendar year 2005, "the Government made requests for certain information concerning 3,501 United States persons pursuant to NSLs. During this time frame, the total number of NSL requests… for information concerning U.S. persons totalled 9,254."^[27] A 2007 DOJ audit of the FBI's use of the National Security Letter found that the FBI actually issued 39,346 requests on 10,232 non-U.S. plus 6,519 U.S. persons in 2003, 56,507 requests for 2004 (8,494 non-U.S., 8,943 U.S. persons), and 47,221 requests in 2005 (8,536 non-U.S., 9,475 U.S. persons). Moreover, review of a sample of NSLs in that DOJ report found that twenty-two percent of reviewed NSLs were not included in these higher estimates, suggesting that the true numbers are even higher.^[28]

In 2010, a partial lift of the gag order was given, and John Doe was revealed as Nicholas Merrill, of Calyx Internet Access. He has since started a nonprofit for the purposes of educating and researching privacy issues.^[29][30]

See also

• Administrative subpoena
• Lettre de cachet
• Non-disclosure agreement
• Warrant canary
• Transparency Report

References

External links

• National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments (PDF)
• Doe v. Ashcroft decision (PDF)
• Decision of the United States Court of Appeals for the Second Circuit in re: John Doe I et al. v. Alberto Gonzales et al. (PDF)
• Documentary film : FBI Unbound: How National Security Letters Violate Our Privacy
• Thousands of Declassified National Security Letters from various government agencies
• Nick Merrill Speaks Out on Landmark Court Struggle Against FBI’s National Security Letters – video report by Democracy Now!