National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments

Publication Date: March 2008

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Media, telecommunications, and information

Type:

Abstract:

Five federal statutes authorize intelligence officials to request certain business record information in connection with national security investigations. The authority to issue these national security letters (NSLs) is comparable to the authority to issue administrative subpoenas. The USA PATRIOT Act expanded the authority under four of the NSL statutes and created the fifth. Thereafter, the authority has been reported to have been widely used. Prospects of its continued use dimmed, however, after two lower federal courts held the lack of judicial review and the absolute confidentiality requirements in one of the statutes rendered it constitutionally suspect.

The USA PATRIOT Improvement and Reauthorization Act (H.R. 3199), P.L. 109-177, and its companion P.L. 109-178, amended the five NSL sections to expressly provide for judicial review of both the NSLs and the confidentiality requirements that attend them. The sections have also been made explicitly judicially enforceable and sanctions recognized for failure to comply with an NSL request or to breach NSL confidentiality requirements with the intent to obstruct justice. The use of the authority has been made subject to greater Congressional oversight.

The text of the five provisions ­ section 1114(a)(5) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)); sections 626 and 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u, 1681v); section 2709 of title 18 of the United States Code; and section 802 of the National Security Act (50 U.S.C. 436) ­ in their amended form have been appended.

A report by the Department of Justice's Inspector General found that in its early use of its expanded USA PATRIOT Act authority the FBI had "used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies," but that no criminal laws had been broken.

This report is available abridged ­ without footnotes, appendices, and most of the citations to authority ­ as CRS Report RS22406, National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments, by Charles Doyle.