National Security Letter - AbsoluteAstronomy.com

A National Security Letter (NSL) is a form of administrative subpoena

Subpoena

A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...

used by the United States

United States

The United States of America is a federal constitutional republic comprising fifty states and a federal district...

Federal Bureau of Investigation

The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...

and reportedly by other U.S. Government Agencies including the Central Intelligence Agency

Central Intelligence Agency

The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...

and the Department of Defense

United States Department of Defense

The United States Department of Defense is the U.S...

. They require no probable cause or judicial oversight. An NSL is a demand letter

Demand letter

A demand letter, or LOD, ie. a Letter Of Demand , is letter stating a legal claim which makes a demand for restitution or performance of some obligation, owing to the recipients' alleged breach of contract, or for a legal wrong.In the United States, demand letters from a debt collector relating to...

issued to a particular entity or organization to turn over various record and data pertaining to individuals. NSLs can only request non-content information, such as transactional records, phone numbers dialed or email addresses mailed to and from. They also contain a gag order

Gag order

A gag order is an order, sometimes a legal order by a court or government, other times a private order by an employer or other institution, restricting information or comment from being made public.Gag orders are often used against participants involved in a lawsuit or criminal trial...

, preventing the recipient of the letter from disclosing that the letter was ever issued. The gag order

Gag order

was ruled unconstitutional as an infringement of free speech, in the Doe v. Gonzales
Doe v. Gonzales
John Doe v. Alberto R. Gonzales, was a case in which the American Civil Liberties Union along with the Library Connection and some librarians challenged Section 2709 of the Patriot Act. John Doe was the recipient of a National Security Letter that requested all information associated with one of...

case. From 2003 to 2006 the bureau issued 192,499 national security letter requests.

History

The oldest NSL provisions were created in 1978 as a little-used method of circumventing the Right to Financial Privacy Act

Right to Financial Privacy Act

The Right to Financial Privacy Act is a United States federal law that gives the customers of financial institutions the right to some level of privacy from government searches. Before the Act was passed, the United States government did not have to tell customers that it was accessing their...

. Used in terrorism

Terrorism

Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...

and espionage

Espionage

Espionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, lest the legitimate holder of the information change plans or take other countermeasures once it...

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 Communications Privacy Act

Electronic Communications Privacy Act

The Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or...

was created with similar provisions in place. Still, neither act identified any penalties for failing to comply with the letter.

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

USA PATRIOT Act

The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...

greatly expanded the use of the NSL. See below.

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 not weakened as much. The judiciary could only repeal the gag order if the court found that it was made in "bad faith

Bad faith

Bad faith is double mindedness or double heartedness in duplicity, fraud, or deception. It may involve intentional deceit of others, or self deception....

". 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.

In 2008, Congress considered proposals to place new controls on the FBI's use of NSLs.
A House bill would tighten 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.

USA PATRIOT Act

Once passed in 2001, section 505 of the USA PATRIOT Act

USA PATRIOT Act

The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...

greatly expanded the use of the NSL, allowing their use in scrutiny of US residents, visitors, or US citizens 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

Homeland security

Homeland security is an umbrella term for security efforts to protect states against terrorist activity. Specifically, is a concerted national effort to prevent terrorist attacks within the U.S., reduce America’s vulnerability to terrorism, and minimize the damage and recover from attacks that do...

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. The USA 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

Judicial oversight

Judicial oversight describes an aspect of the separation of powers prescribed by the Constitution of the United States, specifically the process whereby independent courts may review and restrain actions of the administrative and legislative branches...

. 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. 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. An NSL recipient (later revealed to be Nicholas Merrill

Nicholas Merrill

Nicholas Merrill is the founder of Calyx Internet Access and the Calyx Institute. He was the first person to file a constitutional challenge against the National Security Letters statute in the USA PATRIOT Act. After receiving a National Security Letter from the FBI, he sued the FBI and Department...

) writing in The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...

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."

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" with no checks and balances

Separation of powers

The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...

in place until after the NSL has been delivered.

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. 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

Electronic Frontier Foundation

The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...

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

Glenn A. Fine

Glenn Alan Fine served as Inspector General of the United States Department of Justice from 2000 until January 2011. He was confirmed by the United States Senate on December 15, 2000...

'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

National Security Agency

The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...

. According to the September 9, 2007 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."
In April, 2008, the American Civil Liberties Union

American Civil Liberties Union

The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "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." It works through litigation, legislation, and...

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. The same month, the Electronic Frontier Foundation

Electronic Frontier Foundation

The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...

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.

In May, 2008, the FBI reached a legal settlement with the Internet Archive

Internet Archive

The Internet Archive is a non-profit digital library with the stated mission of "universal access to all knowledge". It offers permanent storage and access to collections of digitized materials, including websites, music, moving images, and nearly 3 million public domain books. 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.

Doe v. Ashcroft

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 an unnamed Internet Service Provider who had been served with NSLs, it challenged the constitutionality of the letters, specifically the non-disclosure provisions. Judge Victor Marrero

Victor Marrero

Victor Marrero is a United States federal judge appointed to the United States District Court for the Southern District of New York by President Bill Clinton in 1999...

of the Southern District of New York found on 28 September 2004, that NSLs violate the Fourth

Fourth Amendment to the United States Constitution

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...

("it has the effect of authorizing coercive searches effectively immune from any judicial process") and First

First Amendment to the United States Constitution

The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

Amendments. 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."

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. 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." 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" and could serve as a cover for official misconduct.
After having the case returned to his court for reconsideration in light of the revisions made to the USA PATRIOT Act

USA PATRIOT Act

The USA PATRIOT Act is an Act of the U.S. Congress that was signed into law by President George W. Bush on October 26, 2001...

, on September 6, 2007, Judge Victor Marrero

Victor Marrero

Victor Marrero is a United States federal judge appointed to the United States District Court for the Southern District of New York by President Bill Clinton in 1999...

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

First Amendment to the United States Constitution

, 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.
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.

Another effect of Doe v. Ashcroft has been greater congressional oversight

Congressional oversight

Congressional oversight refers to oversight by the United States Congress of the Executive Branch, including the numerous U.S. federal agencies. Congressional oversight refers to the review, monitoring, and supervision of federal agencies, programs, activities, and policy implementation. Congress...

. 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

United States Department of Justice

The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...

reported to the House

United States House of Representatives

The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

and Senate

United States Senate

The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

that in calendar year 2005, "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." 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.

In 2010 a partial-lift of the gag order was given, and John Doe was revealed as Nicholas Merrill

Nicholas Merrill

, of Calyx Internet Access. He has since started a nonprofit for the purposes of educating and researching privacy issues.

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!
Democracy Now!
Democracy Now! and its staff have received several journalism awards, including the Gracie Award from American Women in Radio & Television; the George Polk Award for its 1998 radio documentary Drilling and Killing: Chevron and Nigeria's Oil Dictatorship, on the Chevron Corporation and the deaths of...

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