Order Code RS22406
March 21, 2006
CRS Report for Congress
Received through the CRS Web
National Security Letters in Foreign
Intelligence Investigations: A Glimpse of the
Legal Background and Recent Amendments
Charles Doyle
Senior Specialist
American Law Division
Summary
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. These
National Security Letters (NSLs) seek 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, P.L. 109-177, 120 Stat. 192 (2006) (H.R. 3199), and P.L. 109-
178, 120 Stat. 278 (2006) (S. 2271), amend the NSL statutes and related law to address
some of the concerns raised by critics and the courts.
This is an abridged version of CRS Report RL33320, National Security Letters in
Foreign Intelligence Investigations: Legal Background and Recent Amendments,
without the footnotes, appendices, and most of the citations to authority found in the
longer report.
Background
The ancestor of the first NSL letter provision is an exception to privacy protections
afforded by the Right to Financial Privacy Act (RFPA). Its history is not particularly
instructive and consists primarily of a determination that the exception in its original form
should not be too broadly construed. But the exception was just that, an exception. It was
neither an affirmative grant of authority to request information nor a command to
financial institutions to provide information when asked. It removed the restrictions on
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the release of customer information imposed on financial institutions by the RFPA, but
it left them free to decline to comply when asked to do so.
[I]n certain significant instances, financial institutions [had] declined to grant the FBI
access to financial records in response to requests under Section 1114(a). The FBI
informed the Committee that the problem occurs particularly in States which have
State constitutional privacy protection provisions or State banking privacy laws. In
those States, financial institutions decline to grant the FBI access because State law
prohibits them from granting such access and the RFPA, since it permits but does not
mandate such access, does not override State law. In such a situation, the concerned
financial institutions which might otherwise desire to grant the FBI access to a
customer’s record will not do so, because State law does not allow such cooperation,
and cooperation might expose them to liability to the customer whose records the FBI
sought access. (H.Rept. 99-690, at 15-6 [1986].)
Congress responded with passage of the first NSL statute as an amendment to the
RFPA, affirmatively giving the FBI access to financial institution records in certain
foreign intelligence cases. At the same time, in the Electronic Communications Privacy
Act, it afforded the FBI comparable access to telephone company and other
communications service provider customer information. Together, the two NSL
provisions afforded the FBI access to communications and financial business records
under limited circumstances — customer and customer transaction information held by
telephone carriers and banks pertaining to a foreign power or its agents relevant to a
foreign counterintelligence investigation.
Both the communications provider section and the RFPA section contained
nondisclosure provisions and limitations on further dissemination, except pursuant to
guidelines promulgated by the Attorney General. Neither had an express enforcement
mechanism nor identified penalties for failure to comply with either the NSL or the
nondisclosure instruction.
In the mid-1990s, Congress added two more NSL provisions — one permits NSL
use in connection with the investigation of government employee leaks of classified
information under the National Security Act; the other grants the FBI access to credit
agency records pursuant to the Fair Credit Reporting Act, under much the same conditions
as apply to the records of financial institutions. The FBI asked for the Fair Credit
Reporting Act amendment as a threshold mechanism to enable it to make more effective
use of its bank record access authority:
FBI’s right of access under the Right of Financial Privacy Act cannot be effectively
used, however, until the FBI discovers which financial institutions are being utilized
by the subject of a counterintelligence investigation. Consumer reports maintained
by credit bureaus are a ready source of such information, but, although such report[s]
are readily available to the private sector, they are not available to FBI
counterintelligence investigators....
FBI has made a specific showing ... that the effort to identify financial institutions in
order to make use of FBI authority under the Right to Financial Privacy Act can not
only be time-consuming and resource-intensive, but can also require the use of
investigative techniques — such as physical and electronic surveillance, review of
mail covers, and canvassing of all banks in an area — that would appear to be more
intrusive than the review of credit reports. (H.Rept. 104-427, at 36 [1996].)

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The National Security Act NSL provision authorizes access to credit and financial
institution records of federal employees with security clearances who were required to
give their consent as a condition for clearance. Passed in the wake of the Ames espionage
case, it is limited to investigations of classified information leaks.
Both the Fair Credit Reporting Act section and the National Security Act section
contain dissemination restrictions, as well as safe harbor (immunity) and nondisclosure
provisions. Neither has an explicit penalty for improper disclosure of the request, but the
Fair Credit Reporting Act section expressly authorizes judicial enforcement.
The USA PATRIOT Act amended three of the four existing NSL statutes and added
a fifth. In each of the three NSL statutes available exclusively to the FBI — the
Electronic Communications Privacy Act section, the Right to Financial Privacy Act
section, and the Fair Credit Reporting Act section — section 505 of the USA PATRIOT
Act:
! expanded FBI issuing authority beyond FBI headquarter officials to
include the heads of the FBI field offices (i.e., Special Agents in Charge
[SACs]);
! eliminated the requirement that the record information sought pertain to
a foreign power or the agent of a foreign power;
! required instead that the NSL request be relevant to an investigation to
protect against international terrorism or foreign spying; and
! added the caveat that no such investigation of an American can be
predicated exclusively on First Amendment-protected activities.
The amendments allowed NSL authority to be employed more quickly (without the
delays associated with prior approval from FBI headquarters) and more widely (without
requiring that the information pertain to a foreign power or its agents).
Subsection 358(g) of the USA PATRIOT Act amended the Fair Credit Reporting Act
to add a fifth and final NSL section, and the provision had one particularly noteworthy
feature: it was available not merely to the FBI but to any government agency investigating
or analyzing international terrorism:
Notwithstanding section 1681b of this title or any other provision of this subchapter,
a consumer reporting agency shall furnish a consumer report of a consumer and all
other information in a consumer’s file to a government agency authorized to conduct
investigations of, or intelligence or counterintelligence activities or analysis related
to, international terrorism when presented with a written certification by such
government agency that such information is necessary for the agency’s conduct or
such investigation, activity or analysis.
Although the subsection’s legislative history treats it as a matter of first impression,
Congress’s obvious intent was to provide other agencies with the national security letter
authority comparable to that enjoyed by the FBI under the Fair Credit Reporting Act. The

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new section had a nondisclosure and a safe harbor subsection, but no express means of
judicial enforcement or penalties for improper disclosure of a request under the section.
NSLs in Court
NSLs have rarely been the subject of litigation, but in Doe v. Ashcroft and Doe v.
Gonzales, two lower federal courts suggested that the NSL statutes could not withstand
constitutional scrutiny unless more explicit provisions were made for judicial review and
permissible disclosure by recipients. In essence, Doe v. Ashcroft found that the language
of the communications NSL and the practices surrounding its use offended (1) the Fourth
Amendment because in all but the exceptional case it has the effect of authorizing
coercive searches effectively immune from any judicial process, and (2) the First
Amendment because its sweeping, permanent gag order provision applies in every case,
to every person, in perpetuity, with no vehicle for the ban to ever be lifted from the
recipient or other persons affected under any circumstances, either by the FBI itself, or
pursuant to judicial process. Although it did not address the Fourth Amendment issue,
Doe v. Gonzales reached much the same conclusion on the First Amendment issue:
narrowly defined, the government’s interest was not compelling; broadly defined, the
restraints and restrictions of section 2709(c) that served that interest lacked the narrow
tailoring necessary to survive constitutional strict scrutiny. The Doe cases addressed only
communications NSLs, but the characteristics that tripped the court’s suspicions were
common to all.
NSL Amendments in the 109th Congress
Both USA PATRIOT Act reauthorization statutes — P.L. 109-177(H.R. 3199) and P.L.
109-178 (S. 2271) — amend the NSL statutes. They provide for judicial enforcement of
the letter requests and for judicial review of both the requests and accompanying
nondisclosure requirements. They establish specific penalties for failure to comply or to
observe the nondisclosure requirements. They make it clear that the nondisclosure
requirements do not preclude a recipient from consulting an attorney. They provide a
mechanism to lift the nondisclosure requirement. Finally, they expand congressional
oversight and call for an Inspector General’s audit of use of the authority.
Comparison of NSL Attributes
The following table summarizes the differences among the five NSL sections:
! Section 1114(a)(5) of Right to Financial Privacy Act (12 U.S.C. 3414);
! Sections 626 and 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u,
1691v);
! Section 2709 of the title 18 of the United States Code (18 U.S.C. 2709);
and
! Section 802 of the National Security Act (50 U.S.C. 436).

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NSL Statute
18 U.S.C. 2709
12 U.S.C. 3414
15 U.S.C. 1681u
15 U.S.C. 1681v
50 U.S.C. 436
Addressee
communications
financial
consumer credit
consumer credit
financial
providers
institutions
agencies
agencies
institutions,
consumer credit
agencies, travel
agencies
Certifying
senior FBI
senior FBI
senior FBI
supervisory
senior officials
officials
officials and
officials and
officials and
official of an
no lower than
SACs
SACs
SACs
agency
Ass’t Secretary
investigating,
or Ass’t Director
conducting
of agency w/
intelligence
employees w/
activities relating
access to
to or analyzing
classified
int’l terrorism
material
Information
identified
identified
identified
all information
all financial
covered
customer’s
customer
consumer’s
relating to an
information
name, address,
financial records
name, address,
identified
relating to
length of service,
former address,
consumer
consenting,
and billing info
place and former
identified
place of
employee
employment;
name and
address of
consumer’s
banks
Standard/
relevant to an
sought for
sought for an
necessary for the
necessary to
purpose
investigation to
foreign counter-
investigation to
agency’s
conduct a law
protect against
intelligence
protect against
investigation,
enforcement
int’l terrorism or
purposes to
int’l terrorism or
activities, or
investigation,
espionage
protect against
espionage
analysis
counter-
int’l terrorism or
intelligence
espionage
inquiry or
security
determination
Dissemination
only per Att’y
only per Att’y
w/i FBI, to
no provision
only to agency
Gen. guidelines
Gen. guidelines
secure approval
of employee
for intell.
under
investigation, to
investigation,
military
DOJ for law
investigators
enforcement or
when inform.
intell. purposes,
relates to
or fed. agency
military member
when clearly
relevant to
mission
Immunity/fees
no provisions
no provisions
fees; immunity
immunity for
reimbursement;
for good faith
good faith
immunity for
compliance with
compliance with
good faith
a NSL
a NSL
compliance with
a NSL