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A national security letter (NSL) is an
administrative subpoena An administrative subpoena under U.S. law is a subpoena issued by a federal agency without prior judicial oversight. Critics say that administrative subpoena authority is a violation of the Fourth Amendment to the United States Constitution, whi ...
issued by the
United States government The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a feder ...
to gather information for national security purposes. NSLs do not require prior approval from a judge. The Stored Communications Act,
Fair Credit Reporting Act The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 ''et seq'', is U.S. Federal Government legislation enacted to promote the accuracy, fairness, and privacy of consumer information contained in the files of consumer reporting agencies. It ...
, and
Right to Financial Privacy Act The Right to Financial Privacy Act of 1978 (RFPA; codified at , ''et seq.'') is a United States federal law, Title XI of the Financial Institutions Regulatory and Interest Rate Control Act of 1978, that gives the customers of financial institutio ...
authorize the
United States government The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a feder ...
to seek such information that is "relevant" to authorized national security investigations. By law, NSLs can request only non-content information, for example, transactional records and phone numbers dialed, but never the content of telephone calls or e-mails.USA PATRIOT Improvement and Reauthorization Act of 2005: A Legal Analysis
Congressional Research Service The Congressional Research Service (CRS) is a public policy research institute of the United States Congress. Operating within the Library of Congress, it works primarily and directly for members of Congress and their committees and staff on a ...
's report for Congress, Brian T. Yeh, Charles Doyle, December 21, 2006.
NSLs typically contain a nondisclosure requirement forbidding the recipient of an NSL from disclosing the FBI had requested the information. The nondisclosure provision must be authorized by the Director of the FBI, and only after he or she certifies "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." Moreover, a recipient of the NSL may still challenge the nondisclosure provision in federal court. The constitutionality of such nondisclosure provisions has been repeatedly challenged. The nondisclosure provision was initially ruled unconstitutional as an infringement of
free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...
in '' Doe v. Gonzales'', but that decision was
vacated A vacated judgment (also known as vacatur relief) makes a previous legal judgment legally void. A vacated judgment is usually the result of the judgment of an appellate court, which overturns, reverses, or sets aside the judgment of a lower court. ...
in 2008 by the
Second Circuit Court of Appeals The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
when 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 provision in federal court. In March 2013, a federal judge in the Northern District of California held an NSL nondisclosure provision was unconstitutional. On August 24, 2015, the
Ninth Circuit Court of Appeals The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
vacated the lower court's decision and remanded the case for further proceedings. On remand, the district court held the "NSLs were issued in full compliance with the procedural and substantive requirements suggested by the Second Circuit in ''John Doe, Inc. v. Mukasey'', 549 F.3d 861 (2d Cir. 2008), which had held that the 2006 NSL law could be constitutionally applied"... and "the NSL law, as amended y the USA FREEDOM ACT of 2015 was constitutional." The two petitioners appealed. On appeal, the Ninth Circuit Court of Appeals upheld the district court ruling, holding that NSLs are constitutional and stated, "the nondisclosure requirement does not run afoul of the First Amendment." ''Under Seal v. Jefferson B. Sessions, III, Attorney General'', Nos. 16-16067, 16-16081, and 16-16082, July 17, 2017.


History

The oldest NSL provisions were created in 1978 as a little-used investigative tool in terrorist and espionage investigations to obtain financial records. Under the
Right to Financial Privacy Act The Right to Financial Privacy Act of 1978 (RFPA; codified at , ''et seq.'') is a United States federal law, Title XI of the Financial Institutions Regulatory and Interest Rate Control Act of 1978, that gives the customers of financial institutio ...
(RFPA), part of the
Financial Institutions Regulatory and Interest Rate Control Act of 1978 The Financial Institutions Regulatory and Interest Rate Control Act of 1978 is a United States federal law. Among other measures, it established the Federal Financial Institutions Examination Council (FFIEC, under Title X of the act) and authorize ...
, the FBI could obtain the records only if the FBI first demonstrated the target was a foreign power or an agent of a foreign power. Compliance by the recipient of the NSL was voluntary and state laws for
consumer privacy Consumer privacy is information privacy as it relates to the consumers of products and services. A variety of social, legal and political issues arise from the interaction of the public's potential expectation of privacy and the collection and ...
often allowed financial institutions to reject the requests. In 1986, Congress amended RFPA to allow the government to request disclosure of the requested information. In 1986, Congress passed the
Electronic Communications Privacy Act Electronic Communications Privacy Act of 1986 (ECPA) was enacted by the United States Congress to extend restrictions on government wire taps of telephone calls to include transmissions of electronic data by computer ( ''et seq.''), added new pr ...
(ECPA), part of the Stored Communications Act, which created provisions similar to the RFPA that allowed the FBI to issue NSLs. Still, neither RFPA or ECPA included penalties for failure to comply with the NSL. A 1993 amendment removed the restriction regarding "foreign powers," thereby allowing NSLs to request information concerning persons who are not the direct subject of the investigation but who may have information relevant to it. In March 2006, the USA PATRIOT Improvement and Reauthorization Act specifically allowed for judicial review of NSLs. A federal judge could repeal or modify an NSL if the court found the request for information was "unreasonable, oppressive, or otherwise unlawful." The March 2006 changes also weakened the nondisclosure provision the government could include in an NSL. The court could repeal the nondisclosure provision if it found it had been made in bad faith. Other 2006 amendments to the law allowed the recipient of an NSL to inform their attorney about the NSL and the government had to rely on the courts to enforce compliance with an NSL.


PATRIOT Act

Section 505 of the USA PATRIOT Act (2001) allowed the use of the NSLs when seeking information "relevant" in authorized national security investigations to protect against international terrorism or clandestine intelligence activities. The act also provided the
Department of Defense Department of Defence or Department of Defense may refer to: Current departments of defence * Department of Defence (Australia) * Department of National Defence (Canada) * Department of Defence (Ireland) * Department of National Defense (Philipp ...
when conducting a law enforcement investigation,
counterintelligence Counterintelligence is an activity aimed at protecting an agency's intelligence program from an opposition's intelligence service. It includes gathering information and conducting activities to prevent espionage, sabotage, assassinations or ...
inquiry, or security determination. The
Central Intelligence Agency The Central Intelligence Agency (CIA ), known informally as the Agency and historically as the Company, is a civilian foreign intelligence service of the federal government of the United States, officially tasked with gathering, processing, ...
has also allegedly issued NSLs. The Patriot Act reauthorization statutes passed during the
109th Congress The 109th United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives, from January 3, 2005 to January 3, 2007, dur ...
added potential penalties for failure to comply with an NSL or disclosing an NSL if the NSL included a nondisclosure provision. The PATRIOT Act increased the number of persons who could approve the issuance of NSLs, from the FBI Director (or their designees) to include the FBI Special Agent in Charge of the 56 field offices.


Contentious aspects

Two contentious aspects of NSLs are the nondisclosure provision and
judicial oversight Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompa ...
when the FBI issues an NSL, both of which federal courts have held to be constitutional. When the Director of the FBI (or their designee) authorizes the inclusion of a nondisclosure provision in an NSL, the recipient may face criminal prosecution if it discloses the contents of the NSL or that it was received. The purpose of a nondisclosure provision is to prevent the recipient of an NSL from compromising the current FBI investigation involving for which the NSL was issued as well as future investigations (''see'' 18 U.S.C. 2709), either of which would fetter the Government's efforts to address threats to national security.My National Security Letter
''
The Washington Post ''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large nati ...
'', 2007 Mar 23
An NSL recipient (later revealed to be
Nicholas Merrill Nicholas Merrill is an American system administrator, computer programmer, and entrepreneur. He is the founder of Calyx Internet Access, an Internet and hosted service provider founded in 1995, and of the non-profit Calyx Institute. He was the f ...
John Doe’ Who Fought FBI Spying Freed From Gag Order After 6 Years
Kim Zetter, Wired.com, 2010 8 10
) writing in ''
The Washington Post ''The Washington Post'' (also known as the ''Post'' and, informally, ''WaPo'') is an American daily newspaper published in Washington, D.C. It is the most widely circulated newspaper within the Washington metropolitan area and has a large nati ...
'' said,
ving 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.
Like other administrative subpoenas, NSLs do not require judicial approval. For NSLs, that is because the
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
has held the type of information NSLs obtain do not have a constitutionally protected
reasonable expectation of privacy Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a ''right to privac ...
. The person has already provided the information to a third party, e.g., their telephone company, so they no longer have a reasonable expectation of privacy to the information and, therefore, there is no Fourth Amendment requirement to obtain court approval to obtain the information. Nonetheless, an NSL recipient may still challenge the nondisclosure provision in federal court. A media report from 2007 stated a government audit found the FBI had violated the rules more than 1,000 times in an audit of 10% of its national investigations between 2002 and 2007. Twenty such incidents involved requests by agents for information not permitted under the law. A subsequent report in 2014 by the Justice Department Office of Inspector General concluded the FBI had corrected its practices and that NSLs now complied with federal law. According to 2,500 pages of documents the FBI provided to the Electronic Frontier Foundation in response to a Freedom of Information Act lawsuit, the FBI had used NSLs to obtain information about individuals who were the subject of an FBI terrorism or counterintelligence investigation and information from telecommunications companies about individuals with whom the subject of the investigation had communicated. According to a September 9, 2007, ''New York Times'' report,
In many cases, the target of a FBInational security letter whose records are being sought is not necessarily the actual subject of a terrorism investigation. Under the USA PATRIOT Act, the FBI must assert only ICthat the records gathered through the letter are considered relevant to a terrorism r counterintelligenceinvestigation.
In April 2008, the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
alleged that the military was using the FBI to skirt legal restrictions on domestic surveillance to obtain private records of Americans'
Internet service provider An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, non-profit, or otherwise privat ...
s, financial institutions, and telephone companies. The ACLU based its allegation on a review of more than 1,000 documents provided by the Defense Department. The Department of Justice Office of Inspector General later determined it was the Department of Defense (not the FBI) that had ''lawfully'' obtained the information under the National Security Act of 1947, not by an NSL.


''Doe v. Ashcroft''

The lack of judicial oversight and the Supreme Court ruling in '' Smith v. Maryland'' was the core of ''Doe v. Ashcroft'', a test case brought by the ACLU concerning the use of NSLs. The lawsuit was filed on behalf of "
John Doe John Doe (male) and Jane Doe (female) are multiple-use placeholder names that are used when the true name of a person is unknown or is being intentionally concealed. In the context of law enforcement in the United States, such names are often ...
" plaintiff
Nicholas Merrill Nicholas Merrill is an American system administrator, computer programmer, and entrepreneur. He is the founder of Calyx Internet Access, an Internet and hosted service provider founded in 1995, and of the non-profit Calyx Institute. He was the f ...
, founder of Calyx Internet Access, who had received an NSL. The action challenged the constitutionality of NSLs, specifically the nondisclosure provision. At the district court, Judge of the
Southern District of New York The United States District Court for the Southern District of New York (in case citations, S.D.N.Y.) is a federal trial court whose geographic jurisdiction encompasses eight counties of New York State. Two of these are in New York City: New ...
held in September 2004 that NSLs violated the Fourth Amendment ("it has the effect of authorizing coercive searches effectively immune from any judicial process") and
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...
. However, Judge Marrero stayed his ruling while the case proceeded to the court of appeals. Because of the New York district court ruling, while the case was still on appeal, Congress amended the USA PATRIOT Act to provide for more judicial review of NSLs and clarified the NSL nondisclosure provision. Based on the U.S. Supreme Court rulings, the FBI does not need judicial approval to issue an NSL. The government appealed Judge Marrero's decision to the
Second Circuit Court of Appeals The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
, which heard arguments in May 2006. In March 2008, the Second Circuit ruled that nondisclosure provisions were permissible only when the FBI certified that disclosure may result in certain statutorily enumerated harms (see, e.g., 18 U.S.C. 2709), and held the nondisclosure provision to a strict scrutiny standard. The Second Circuit then returned the case to the district court based on amendments to the USA PATRIOT Act that Congress had enacted while the case had been on appeal. Another effect of ''Doe v. Ashcroft'' was increased
congressional oversight Congressional oversight is oversight by the United States Congress over the Executive Branch, including the numerous U.S. federal agencies. Congressional oversight includes the review, monitoring, and supervision of federal agencies, programs, a ...
. The amendments to the USA PATRIOT Act mentioned above included requirements for semiannual reporting to Congress. Although the reports are classified, a nonclassified accounting of how many NSLs are issued is also required. On April 28, 2006, the
Department of Justice A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
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 period, the total number of NSL requests ... for information concerning U.S. persons totaled 9,254." In 2010, the FBI agreed to lift partially the nondisclosure provision to allow Merrill to reveal his identity. On August 28, 2015, Judge Marrero rescinded the nondisclosure provision associated with the NSL Merrill had received, thereby allowing him to speak about the contents of the NSL. On November 30, 2015, the unredacted court ruling was published in full.


See also

*
Lettre de cachet ''Lettres de cachet'' (; ) were letters signed by the king of France, countersigned by one of his ministers, and closed with the royal seal. They contained orders directly from the king, often to enforce arbitrary actions and judgments that ...
* Non-disclosure agreement *
Warrant canary A warrant canary is a method by which a communications service provider aims to inform its users that the provider has been served with a government subpoena despite legal prohibitions on revealing the existence of the subpoena. The warrant canar ...
* Transparency Report *
DSMA-notice In the United Kingdom, a DSMA-Notice (Defence and Security Media Advisory Notice) is an official request to news editors not to publish or broadcast items on specified subjects for reasons of national security. DSMA-Notices were formerly called a ...


References

{{reflist, 2


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
Censorship in the United States Federal Bureau of Investigation Legal documents Mass intelligence-gathering systems Surveillance scandals Patriot Act