Administrative Subpoenas and National Security Letters in Criminal and Foreign Intelligence Investigations: Background and Proposed Adjustments

Publication Date: April 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Media, telecommunications, and information

Type:

Abstract:

Administrative subpoena authority, including closely related national security letter authority, is the power vested in various administrative agencies to compel testimony or the production of documents or both in aid of the agencies' performance of their duties. Administrative subpoenas are not a traditional tool of criminal law investigation, but neither are they unknown. Several statutes at least arguably authorize the use of administrative subpoenas primarily or exclusively for use in a criminal investigation in cases involving health care fraud, child abuse, Secret Service protection, controlled substance cases, and Inspector General investigations. In addition, five statutory provisions vest government officials responsible for certain foreign intelligence investigations with authority comparable to administrative subpoena access to various types of records.

As a constitutional matter, the Fourth Amendment only demands that administrative subpoenas be reasonable, a standard that requires that 1) they satisfy the terms of the authorizing statute, 2) the documents requested are relevant to the investigation, 3) the information sought is not already in the government's possession, and 4) enforcing the subpoena will not constitute an abuse of the court's process. One lower federal court has recently held, however, that practices under one of the national security letter statutes violate the Fourth and First Amendment.

Several bills address the dual issues raised in the case: (a) judicial review and enforcement, and (b) nondisclosure. S. 693 amends 18 U.S.C. 2709 to (1) permit a recipient to disclose the matter to his attorney or those whose assistance is necessary in order to comply with the request, (2) authorize federal courts to enforce a national security letter, or to modify or set aside such a request or a related nondisclosure order; and (3) allow disclosure in such judicial proceedings consistent with the requirements of the Classified Information Procedures Act (CIPA). S. 737 features similar amendments but applies them to several of the national security letter statutes and imposes a 90 day limit on the nondisclosure requirements, subject to court authorized 180 day extensions based on exigent circumstances. The companion proposals contained in S. 317 and H.R. 1526 are at once more restricted and more sweeping than those in either S. 693 or S. 737. S. 317 amends 18 U.S.C. 2709 to create a "specific and articulable facts" standard when the request relates to library or bookseller records; H.R. 1526 amends 18 U.S.C. 2709 to exempt library records from the reach of the section altogether. Both bills add section 505 of the USA PATRIOT Act to the list of sections that sunset on December 31, 2005. Section 505 amended the national security letter provisions of 18 U.S.C. 2709 and 15 U.S.C. 1681u to permit issuance by the heads of FBI field offices and to replace the "specific and articulable facts" standard. It also amended the Right to Financial Privacy Act to permit the heads of FBI field offices to issue national security letters under the provisions of that act. Those amendments would expire under H.R. 1526 (Otter) and S. 317 (Feingold). Although more extensive proposals were offered in the 108th Congress, the only law enforcement related administrative subpoena proposal in the 109th Congress appears in S. 600 relating to the Secretary of State's responsibilities to protect U.S. foreign missions and foreign dignitaries visiting this country.