National Security Letters in Foreign Intelligence Investigations: Legal Background [November 22, 2013]   [open pdf - 480KB]

"Five statutory provisions vest government agencies responsible for certain foreign intelligence investigations (principally the Federal Bureau of Investigation (FBI)) with authority to issue written commands comparable to administrative subpoenas. A National Security Letter (NSL) seeks customer and consumer transaction information in national security investigations from communications providers, financial institutions and credit agencies. Section 505 of the USA PATRIOT Act expanded the circumstances under which an NSL could be used. Subsequent press accounts suggested that their use had become widespread. Two lower federal courts, however, found the uncertainties, practices, and policies associated with the use of NSL authority contrary to the First Amendment right of freedom of speech, and thus brought into question the extent to which NSL authority could be used in the future. The USA PATRIOT Improvement and Reauthorization Act and P.L. 109-178 (S. 2271) amended the NSL statutes and related law to address some of the concerns raised by critics and the courts. As a consequence, the Second Circuit dismissed one of the lower court cases as moot and remanded the other for reconsideration in light of the amendments. On reconsideration, the district court opinion continued to be troubled by the First Amendment implications of the nondisclosure features of 18 U.S.C. 2709, even as amended. The appellate court was comparably concerned, but concluded that the government might invoke the authority of 18 U.S.C. 2709 and 18 U.S.C. 3511 in a limited but constitutionally acceptable manner. On remand under the procedure envisioned by the Second Circuit panel, the district court found a continuing need to maintain the original secrecy order, but ordered the government to provide the plaintiffs with an unclassified, redacted summary of the declaration upon which the court's decision was based. The result was somewhat different in the Ninth Circuit. There, too, a district court found that Section 2709(c)'s nondisclosure requirements violated the First Amendment and that Section 3511(b)(2)'s and (3)'s judicial review provisions violated the First Amendment and separation of powers principles. It could not agree to the narrow construction favored by the Second Circuit, however, given the clear statutory language and equally clear congressional intent to afford the government broad, review-proof authority to issue NSL secrecy orders. Nevertheless, pending appeal to the Ninth Circuit Court of Appeals, the district court stayed its order barring issuance of further NSLs and enforcement of any related nondisclosure requirements."

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