Order Code RL33320
National Security Letters in Foreign Intelligence
Investigations: Legal Background and
Recent Amendments
Updated March 20, 2007
Charles Doyle
Senior Specialist
American Law Division

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

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
NSLs in Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
NSL Amendments in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . 9
Comparison of NSL Attributes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Addressees and Certifying Officials . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Purpose, Standards, Information Covered . . . . . . . . . . . . . . . . . . . . . . 11
Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Judicial Review and Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Dissemination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Liability, Fees and Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Inspector General’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Exigent Letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12 U.S.C. 3414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18 U.S.C. 2709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
15 U.S.C. 1681v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
15 U.S.C. 1681u. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
50 U.S.C. 436. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
18 U.S.C. 1510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
P.L. 109-177, Sec. 118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
P.L. 109- 177, Sec. 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
28 U.S.C. 3511 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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National Security Letters in Foreign
Intelligence Investigations: Background and
Recent Amendments
Introduction
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.1 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.2
Subsequent press accounts suggested that their use had become wide-spread.3 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.4 The USA PATRIOT Improvement and Reauthorization
1 18 U.S.C. 2709; 12 U.S.C. 3414; 15 U.S.C. 1681v; 15 U.S.C. 1681u; 50 U.S.C. 436; the
text of each is appended.
Federal administrative subpoena authority is discussed in U.S. Department of Justice,
Office of Legal Policy, Report to Congress on the Use of Administrative Subpoena
Authorities by Executive Branch Agencies and Entities [2002], available on March 6, 2006
at [http://www.usdoj.gov/olp/intro.pdf]; see also CRS Report RL33321, Administrative
Subpoenas in Criminal Investigations: A Brief Legal Analysis, abridged as CRS Report
RS22407, Administrative Subpoenas in Criminal Investigations: A Sketch, both by Charles
Doyle.
2 P.L. 109-56, 115 Stat. 365 (2001).
3 From calendar year 2003 through 2005, the FBI issued approximately 44,000 NSLs
containing 143,074 requests. In one investigation, it issued 9 NSLs requesting information
relating to 11,000 telephone numbers. U.S. Department of Justice, Office of the Inspector
General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters
(IG Report) at xviii-xix (March 2007), available on March 12, 2007 at
[www.usdoj.gov/oig/special/s0703b/final.pdf].
4 Doe v. Ashcroft, 334 F.Supp.2d 471, 526-27 (S.D.N.Y. 2004)(“the Court concludes that
the compulsory, secret, and unreviewable production of information required by the FBI’s
application of 18 U.S.C. 2709 violates the Fourth Amendment and that the non-disclosure
provision of 18 U.S.C. 2709(c) violates the First Amendment”); Doe v. Gonzales, 386
F.Supp.2d 66, 78-82 (D.Conn. 2005)(the court did not reach the Fourth Amendment issue).
Justice Ginsburg declined to lift the stay of Connecticut court’s injunction pending appeal
in the Second Circuit, 126 S.Ct. 1 (2005).

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CRS-2
Act,5 and Public Law 109-178 (S. 2271) amend the NSL statutes and related law to
address some of the concerns raised by critics and the courts.6
Background
The ancestor of the first NSL letter provision is an exception to privacy
protections afforded by the Right to Financial Privacy Act (RFPA).7 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.8 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 provided information when
asked. It removed the restrictions on the release of customer information imposed
on financial institutions by the Right to Financial Privacy Act, 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 Right to Financial Privacy Act, affirmatively giving the FBI access to financial
5 P.L. 109-177 (H.R. 3199), 120 Stat. 192 (2006).
6 The appended statutes note the amendments and additions.
7 Section 1114, P.L.95-630, 92 Stat. 3706 (1978); now codified at 12 U.S.C. 3414(a)(1)
(A), (B): “Nothing in this chapter (except sections 3415, 3417, 3418, and 3421 of this title)
shall apply to the production and disclosure of financial records pursuant to requests from
– (A) a Government authority authorized to conduct foreign counter- or foreign positive-
intelligence activities for purposes of conducting such activities; [or] (B) the Secret Service
for the purpose of conducting its protective functions (18 U.S.C. 3056; 3 U.S.C. 202, P. L.
90-331, as amended).”
8 “Section 1114 provides for special procedures in the case of foreign intelligence . . . .
though the committee believes that some privacy protections may well be necessary for
financial records sought during a foreign intelligence investigation, there are special
problems in this area which make consideration of such protections in other congressional
forums more appropriate. Nevertheless, the committee intends that this exemption be used
only for legitimate foreign intelligence investigations: investigations proceeding only under
the rubric of “national security” do not qualify. Rather this exception is available only to
those U.S. Government officials specifically authorized to investigate the intelligence
operations of foreign governments,” H.Rept. 95-1383, at 55 (1978).

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CRS-3
institution records in certain foreign intelligence cases.9 At the same time in the
Electronic Communications Privacy Act, it afforded the FBI comparable access to
the telephone company and other communications service provider customer
information.10 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 counter-intelligence
investigation.11
Both the communications provider section and the Right to Financial Privacy
Act section contained nondisclosure provisions12 and limitations on further
dissemination except pursuant of guidelines promulgated by the Attorney General.13
Neither had an express enforcement mechanism nor identified penalties for failure
to comply with either the NSL or the nondisclosure instruction.
In the mid-90’s, 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;14 and 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.15 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
9 P.L.99-569, §404, 100 Stat. 3197 (1986); 12 U.S.C. 3414(a)(5)(A)(1988 ed.).
10 18 U.S.C. 2709 (1988 ed.); see also, S.Rept. 99-541, at 43 (1986)(“This provision is
substantially the same as language recently reported by the Intelligence Committee as
section 503 of the Intelligence Authorization Act for Fiscal Year 1987, [P.L. 99-569]”).
11 18 U.S.C. 2709 (1988 ed.); 12 U.S.C. 3414(a)(5)(A).
12 18 U.S.C. 2709(c)(“No wire or electronic communication service provider, or officer,
employee, or agent thereof, shall disclose to any person that the Federal Bureau of
Investigation has sought or obtained access to information or records under this section”);
see also, 12 U.S.C. 3414(a)(5)(D). Note that unlike section 3486, the prohibition is neither
temporary nor judicially supervised.
13 18 U.S.C. 2709(d)(1988 ed.); 12 U.S.C. 3414(a)(5)(B)(1988 ed.).
14 50 U.S.C. 436.
15 15 U.S.C. 1681u.

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CRS-4
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.Rep.No.. 104-427, at 36 (1996).16
The National Security Act NSL provision authorized 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.17 Passed in the wake of
the Ames espionage case, it is limited to investigations of classified information
leaks. As noted at the time, “The Committee believes section 801 will serve as a
deterrent to espionage for financial gain without burdening investigative agencies
with unproductive recordkeeping or subjecting employees to new reporting
requirements. . . . The Committee recognizes that consumer credit records have been
notoriously inaccurate, and expects that information obtained pursuant to this section
alone will not be the basis of an action or decision adverse to the interest of the
employee involved.”18
Both the Fair Credit Reporting Act section and the National Security Act section
contain dissemination restrictions;19 as well as safe harbor (immunity),20 and
nondisclosure provisions.21 Neither has an explicit penalty for improper disclosure
of the request, but the Fair Credit Reporting Act section expressly authorizes judicial
enforcement.22
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 (18 U.S.C. 2709), the Right to
Financial Privacy Act section (12 U.S.C. 3414(a)(5)), and the Fair Credit Reporting
Act section (15 U.S.C. 1681u) – 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 (SAC));
! 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;
16 The Senate Intelligence Committee had made similar observations in a prior Congress
when considering legislation that ultimately became the National Security Amendment,
S.Rep.No. 103-256, at 17-22 (1994).
17 50 U.S.C. 456 (1994 ed.).
18 H.Rep.No. 103-541 at 53-4 (1994).
19 15 U.S.C. 1681u(f), 50 U.S.C. 436(e).
20 15 U.S.C. 1681u(k), 50 U.S.C. 436(c).
21 15 U.S.C. 1681u(d); 50 U.S.C. 436(b).
22 15 U.S.C. 1681u(c).

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CRS-5
! added the caveat that no such investigation of an American can be
predicated exclusively of First Amendment protected activities.23
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).24
Subsection 358(g) of the USA PATRIOT Act amended the Fair Credit
Reporting Act to add a fifth and final NSL section; 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.25

23 P.L. 107-56, §505, 115 Stat. 365-66 (2001).
24 “The information acquired through NSLs is extremely valuable to national security
investigations. . . . Unfortunately, however, NSLs were of limited utility prior to the
PATRIOT Act. While records held by third parties may generally be subpoenaed by a grand
jury in a criminal investigation so long as those records are relevant, the standard for
obtaining such records through an NSL was much higher before October of 2001.
“The FBI had to have specific and articulable facts that the information requested
pertained to a foreign power or an agent of a foreign power. This requirement often
prohibited the FBI from using NSLs to develop evidence at the early stage of an
investigation, which is precisely when they are the most useful.
“The prior standard, Mr. Chairman, put the cart before the horse. Agents trying to
determine whether or not there were specific and articulable facts that a certain individual
was a terrorist or spy were precluded from using an NSL in this inquiry because, in order
to use an NSL, they first had to be in possession of such facts.
“Suppose, for example, investigators were tracking a known al-Qaeda operative and
saw him having lunch with three individuals. A responsible agent would want to conduct
a preliminary investigation of those individuals and find out, among other things, with whom
they had recently been in communication.
“Before the passage of the PATRIOT Act, however, the FBI could not have issued an
NSL to obtain such information. While investigators could have demonstrated that this
information was relevant to an ongoing terrorism investigation, they could not have
demonstrated sufficient specific, and articulable facts that the individuals in question were
agents of a foreign power,” Material Witness Provisions of the Criminal Code, and the
Implementation of the USA PATRIOT Act: Section 505 That Addresses National Security
Letters, and Section 804 That Addresses Jurisdiction Over Crimes Committed at U.S.
Facilities Abroad: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland
Security of the House Comm. on the Judiciary, 109th Cong., 1st Sess. at 9-10 (testimony of
Counselor Matthew Berry, Office of Legal Policy, U.S. Department of Justice).
25 P.L. 107-56, §358(g), 115 Stat. 327 (2001).

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Although the subsection’s legislative history treats it as a matter of first
impression,26 Congress’ 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 new section had a nondisclosure and a safe harbor
subsection, 15 U.S.C. 1681v(c), (e), but no express means of judicial enforcement
or penalties for improper disclosure of a request under the section.
In the 108th Congress, the scope of the Right to Financial Privacy Act NSL was
enlarged by defining the financial institutions subject to the authority to include not
only banks and credit unions but also car dealers, jewelers, and real estate agents,
among others.27 The same Congress saw a number of proposals introduced to exempt
26 E.g., H.Rept. 107-250, at 60-1 (“this section facilitates government access to information
contained in suspected terrorists’ credit reports when the government inquiry relates to an
investigation, of or intelligence activity or analysis relating to, domestic or international
terrorism. Even though private entities such as lender and insurers can access an
individual’s credit history, the government is strictly limited in its ability under current law
to obtain the information. This section would permit those investigating suspected terrorists
prompt access to credit histories that may reveal key information about the terrorist’s plan
or source of refunding — without notifying the target”).
27 P.L. 108-177, §374, 117 Stat. 2628 (2004), 12 U.S.C. 3414(d), adopts the definition of
financial institution found in 31 U.S.C. 5312(a)(2) and (c)(1), i.e.: (A) an insured bank (as
defined in 12 U.S.C. 1813(h)); (B) a commercial bank or trust company; (C) a private
banker; (D) an agency or branch of a foreign bank in the United States; (E) any credit union;
(F) a thrift institution; (G) a broker or dealer registered with the Securities and Exchange
Commission; (H) a broker or dealer in securities or commodities; (I) an investment banker
or investment company; (J) a currency exchange; (K) an issuer, redeemer, or cashier of
travelers’ checks, checks, money orders, or similar instruments; (L) an operator of a credit
card system; (M) an insurance company; (N) a dealer in precious metals, stones, or jewels;
(O) a pawnbroker; (P) a loan or finance company; (Q) a travel agency; (R) a licensed sender
of money or any other person who engages as a business in the transmission of funds,
including any person who engages as a business in an informal money transfer system or any
network of people who engage as a business in facilitating the transfer of money
domestically or internationally outside of the conventional financial institutions system; (S)
a telegraph company; (T) a business engaged in vehicle sales, including automobile,
airplane, and boat sales; (U) persons involved in real estate closings and settlements; (V) the
United States Postal Service; (W) an agency of the United States Government or of a State
or local government carrying out a duty or power of a business described in this paragraph;
(X) a casino, gambling casino, or gaming establishment with an annual gaming revenue of
more than $1,000,000 which – (i) is licensed as a casino, gambling casino, or gaming
establishment under the laws of any State or any political subdivision of any State; or (ii)
is an Indian gaming operation conducted under or pursuant to the Indian Gaming Regulatory
Act other than an operation which is limited to class I gaming (as defined in section 4(6) of
such Act); (Y) any business or agency which engages in any activity which the Secretary of
the Treasury determines, by regulation, to be an activity which is similar to, related to, or
a substitute for any activity in which any business described in this paragraph is authorized
to engage; (Z) any other business designated by the Secretary whose cash transactions have
a high degree of usefulness in criminal, tax, or regulatory matters; or (A) any futures
commission merchant, commodity trading advisor, or commodity pool operator registered,
or required to register, under the Commodity Exchange Act.

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libraries from the reach of the communications NSL,28 to increase Congressional
oversight over the use of NSL authority,29 and to add the USA PATRIOT Act section
505 NSL amendments to the list of those temporary sections scheduled to expire on
December 31, 2005.30 The 108th also witnessed the introduction of proposals that
ultimately evolved into the NSL amendments in the USA PATRIOT Improvement
and Reauthorization Act. H.R. 3179, introduced by Representative Sensenbrenner,
would have reenforced the five national security letter provisions with explicit
authority for judicial enforcement31 and with criminal penalties for improper
disclosure of the issuance of such letters. The penalties were to be the same as those
proposed under the general administrative subpoena bills offered in the 108th –
imprisonment for not more than five years when committed with the intent to
obstruct and for not more than one year otherwise, proposed 18 U.S.C. 1510(e). A
Justice Department witness explained that, “Oftentimes, the premature disclosure of
an ongoing terrorism investigation can lead to a host of negative repercussions,
including the destruction of evidence, the flight of suspected terrorists, and the
frustration of efforts to identify additional terrorist conspirators. For these reasons,
the FBI has forgone using NSLs in some investigations for fear that the recipients of
those NSLs would compromise an investigation by disclosing the fact that they had
been sent an NSL.”32 The enforcement provision would have been backed by the
court’s contempt power, proposed 18 U.S.C. 2332h.33 It had no explicit provisions,
however, to permit the recipient to file a motion to quash or modify the NSL request.
28 H.R. 3352, §5 (Rep. Otter); S. 1158, §3 (Sen. Boxer); S. 1507, §2 (Sen. Feingold); S.
1552, §4(b) (Sen. Murkowski); and S. 1709, §5 (Sen. Craig).
29 S. 436, §3 (Sen. Leahy).
30 H.R. 3171, §4 (Rep. Kucinich); H.R. 3352, §7 (Rep. Otter); S. 1695, §2 (Sen. Leahy);
and S. 1709, §6 (Sen. Craig).
31 In Doe v. Ashcroft, 334 F.Supp.2d 471, 496-501 (S.D.N.Y. 2004), the Government
argued unsuccessfully that the NSL statutes should be understood to include an implicit
judicial enforcement component.
32 Anti-Terrorism Intelligence Tools Improvement Act of 2003: Hearing Before the
Subcomm. on Crime, Terrorism, and Homeland Security (House Hearing), 108th Cong. 2d
Sess. 7-8 (2004)(prepared statement of United States Assistant Attorney General Daniel J.
Bryant).
33 Proposed 18 U.S.C. 2332h (“In the case of a refusal to comply with a request for records,
a report, or other information made to any person under section 2709(b) of this title, section
625 (a) or (b) or 626 of the Fair Credit Reporting Act [15 U.S.C. 1681u, 1681v], section
1114(a)(5)A) of the right to Financial Privacy Act [12 U.S.C. 3414, or section 802(a) of the
National Security Act of 1947 [50 U.S.C. 436(a)], the Attorney General may invoke the aid
of any court of the United States within the jurisdiction of which the investigation is carried
on or the person resides, carries on business, or may be found, to compel compliance with
the request. The court may issue an order requiring the person to comply with the request.
Any failure to obey the order of the court may be punished by the court as contempt thereof.
Any process under this section may be served in any judicial district in which the person
may be found”).

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NSLs in Court.
Legislation in the 108th Congress did not enjoy the benefit of two court decisions
that colored the debate over NSL authority during the 109th Congress. Doe v.
Ashcroft34 and Doe v. Gonzales35 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 18 U.S.C. 2709 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,” 334
F.Supp.2d at 506, 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,” id. at 476.
The court concluded that the national security letters before it differed from
administrative subpoenas by want of judicial review either before or after “the
seizure”:
While the Fourth Amendment reasonableness standard is permissive in the
context of the administrative subpoenas, the constitutionality of the
administrative subpoena is predicated on the availability of a neutral tribunal to
determine, after a subpoena issued, whether the subpoena actually complies with
the Fourth Amendment’s demands. In contrast to an actual physical search,
which must be justified by the warrant and probable cause requirements
occurring before the search, an administrative subpoena “is regulated by and its
justification derives from, [judicial] process” available after the subpoena is
issued.
Accordingly, the Supreme Court has held that an administrative subpoena
“may not be made and enforced” by the administrative agency; rather, the
subpoenaed party must be able to “obtain judicial review of the reasonableness
of the demand prior to suffering penalties for refusing to comply.” In sum,
longstanding Supreme Court doctrine makes clear that an administrative
subpoena statute is consistent with the Fourth Amendment when it is subject to
“judicial supervision” and “surrounded by every safeguard of judicial restraint.”
334 F.Supp.2d at 495, quoting inter alia, Oklahoma Press Pub. Co. v.
Walling, 327 U.S. at 217; See v. City of Seattle, 387 U.S. 541, 544-45
(1967).
With regard to the First Amendment question, the court concluded section
2709(c) constituted both a prior restraint and a content-based limit on speech. As
such, it could only survive if it were “narrowly tailored to promote a compelling
governmental interest,” 334 F.Supp.2d at 511, quoting inter alia, United States v.
Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). Compelling
governmental interest there was, the court conceded, but narrowly tailored did not
describe the facially all-encompassing, permanent nondisclosure requirement, 334
F.Supp.2d at 514. By way of emphasizing the troubling sweep of the nondisclosure
34 334 FSupp.2d 471 (S.D.N.Y. 2004).
35 386 F.Supp.2d 66 (D.Conn. 2005).

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CRS-9
ban found in 18 U.S.C. 2709(c), the court pointed to legislative proposals in the 108th
Congress that might serve as one of several possible models for a more narrowly
tailored means of protecting the legitimate governmental interests upon which section
2709 rested:
Bills pending in the House and Senate would require the Attorney General
to certify, before ordering secrecy, that disclosure would present a “danger to the
national security,” and the non-disclosure order could later be terminated by the
Attorney General or a court, if the danger expires. 334 F.Supp.2d at 521, citing,
H.R. 3037 (108th Cong.) and S. 2555 (108th Cong.).
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) which served that interest lacked the narrow tailoring
necessary to survive constitutional strict scrutiny, 386 F.Supp.2d at 82.
The Doe cases addressed only section 2709 NSLs, but the characteristics which
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)36 – amend the NSL statutes.37 They provide for judicial
enforcement of the letter requests and for judicial review of both the requests and
accompanying nondisclosure requirements.38 They establish specific penalties for
failure to comply or to observe the nondisclosure requirements.39 They make it clear
that the nondisclosure requirements do not preclude a recipient from consulting an
attorney.40 They provide a mechanism to lift the nondisclosure requirement.41 They
expand Congressional oversight and call for an Inspector General’s audit of use of
the authority.42
36 120 Stat. 192 (2006) and 120 Stat. 278 (2006), respectively.
37 Other proposals in the 109th Congress include H.R. 1526 (Rep. Otter) (sunset for section
505, excluding libraries from NSLs); H.R. 2715 (Rep. Nadler) (limits availability of NSLs
and related gag orders); S. 3 (Sen. Gregg)(vests the Attorney General with authority to set
NSL information sharing guidelines); S. 317 (Sen. Feingold) (exempts libraries and
booksellers from communications NSLs); S. 737 (Sen. Craig) (SAFE Act); S. 693/S. 1680
(Sen. Cornyn) (judicial review and enforcement); S. 1266 (Sen. Roberts) (S.Rept. 109-
85)(replaces NSLs with administrative subpoena powers); (S. 2369)(Sen. Specter)(sunsets
the P.L. 109-177, P.L. 109-178 NSL provisions after December 31, 2009).
38 28 U.S.C. 3511.
39 28 U.S.C. 3511(c), 18 U.S.C. 1510(e).
40 12 U.S.C. 3414((a)(3)(A); 15 U.S.C. 1681v(c)(1), 1681u(d)(1); 18 U.S.C. 2709(c)(1);
50 U.S.C. 436(B)(1).
41 28 U.S.C. 3511(b).
42 P.L. 109-177, §§118, 119.

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CRS-10
Comparison of NSL Attributes
Addressees and Certifying Officials.
The five NSL statutes share a number of common attributes but each has its own
individual features as well. They are most distinctive with respect to the nature of
the businesses to whom they may be addressed. Electronic Communication Privacy
Act NSLs are addressed to communications providers.43 Those issued under the
authority of the Right to Financial Privacy Act may be directed to any financial
institution, which as noted earlier, includes not only banks and credit unions, but
credit card companies, car dealers, jewelers and a number of entities that are likely
the scene of large cash transactions.44 The Fair Credit Reporting Act NSLs may be
addressed to consumer credit reporting agencies.45 Recipients of the National
Security Act NSLs may include either financial institutions or consumer credit
reporting agencies as well as any commercial entity with information concerning an
agency employee’s travel.46
FBI officials are authorized to provide the initial certification required for
issuance of an NSL under any of the five statutes. In three instances, the authority
is exclusive; in the other two it is enjoyed by other federal officials as well. In the
case of the Electronic Communications Privacy Act NSL section, the Right to
Financial Privacy Act section and one of the Fair Credit Report Act NSL sections,
issuance requires the certification of either the Director of the FBI, a senior FBI
official (no lower than the Deputy Assistant Director), or the Special Agent in Charge
of an FBI field office.47
Certifying officials under the other statutes are described more broadly. The
National Security Act NSL section contemplates certification by officials from a
wider range of agencies; the second Fair Credit Reporting Act NSL section allows
certification by both a wider range of agencies and a wider range of officials. Senior
officials no lower than Assistant Secretary or Assistant Director of an agency whose
employee with access to classified material is under investigation may certify a
National Security Act NSL request.48 A designated supervisory official of any
agency “authorized to conduct investigations of, or intelligence or counterintelligence
activities and analysis related to, international terrorism” may certify a NSL request
under the second, more recent Fair Credit Reporting Act section.49
43 18 U.S.C. 2709.
44 12 U.S.C. 3414(a),(d).
45 15 U.S.C. 1681u(a), 1681v(a).
46 50 U.S.C. 436(a).
47 18 U.S.C. 2709 (b); 12 U.S.C. 3414(a)(5)(A); 15 U.S.C. 1681u(b).
48 50 U.S.C. 436 (a)(3).
49 15 U.S.C. 1681v(a).

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CRS-11
Purpose, Standards, Information Covered.
Although variously phrased, the purpose for each of the NSLs is to acquire
information related to the requesting agency’s national security concerns. The most
common statement of purpose is “to protect against international terrorism or
clandestine intelligence activities.”50 The more recent of the Fair Credit Reporting
Act NSL sections simply indicates that the information must be sought for the
requesting intelligence agency’s investigation, activity or analysis.51 The National
Security Act NSL authority is available to conduct law enforcement investigations,
counterintelligence inquiries, and security determinations.52 As to standards, the
Electronic Communications Privacy Act authorizes NSLs for relevant information.53
The same standard may apply to the others which are a little more cryptic,
authorizing NSLs when the information is “sought for”54 or “is necessary”55 for the
statutory purpose.
The communications NSL provision and the earlier of the two credit agency
NSL statutes are fairly specific in their descriptions of the information that may be
requested through an NSL. An Electronic Communications Privacy Act NSL may
request a customer’s name, address, length of service and billing records.56 The older
of the two Fair Credit Report Act sections authorizes a NSL to acquire name, address
or former address, place or former place of employment, and the name and address
of any financial institution with which the consumer has or once had an account.57
The Right to Financial Privacy Act NSL provision covers the financial records of a
financial institution’s customers;58 the second and more recent Fair Credit Reporting
Act NSL provision covers a consumer reporting agency’s consumer reports and “all
other” consumer information in its files.59 The National Security Act provision is at
once the most inclusive and the most restricted. It authorizes NSLs for financial
information and records and consumer reports held by any financial agency,
institution, holding company or consumer reporting agency, and for travel
information held by any commercial entity.60 On the other hand, it is the only
provision that limits the information provided to that pertaining to the target of the
50 18 U.S.C. 2709(b); 12 U.S.C. 3414(a)(5)(A); 15 U.S.C. 1681u(b).
51 15 U.S.C. 1681v(a).
52 50 U.S.C. 436(a)(1).
53 18 U.S.C. 2709(b).
54 15 U.S.C. 1681u(a); 12 U.S.C. 3414(a)(5)(A).
55 15 U.S.C. 1681v; 50 U.S.C. 436(a).
56 18 U.S.C. 2709(b).
57 15 U.S.C. 1681u(a),(b).
58 12 U.S.C. 3414(a)(5)(A).
59 15 U.S.C. 1681v(a)
60 50 U.S.C. 436(a)(1).

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CRS-12
agency’s investigation and to information of a kind whose disclosure the target has
previously approved.61
Confidentiality.
Prior to their amendment in the 109th Congress, the NSL statutes generally
featured an open ended confidentiality clause. The communications NSL provision
for example declared, “No wire or electronic communication service provider, or
officer, or employee, or agent thereof, shall disclose to any person that the Federal
Bureau of Investigation has sought or obtained access to information or records under
this section.”62 The statutes did not indicate whether a recipient might consult an
attorney in order to ascertain his rights and obligations nor whether it might ever be
lifted. It was this silence in the face of a seemingly absolute, permanent
nondisclosure command that the Doe courts found constitutionally unacceptable63
and that perhaps led to the reconstruction of the NSL confidentiality requirements in
their current form.

As NSL statutes now read, secrecy is not absolutely required. Instead NSL
recipients are bound to secrecy only upon the certification of the requesting agency
that disclosure of the request or response may result in a danger to national security;
may interfere with diplomatic relations or with a criminal, counterterrorism, or
counterintelligence investigation; or may endanger the physical safety of an
individual. A recipient may disclose the request to those necessary to comply with
the request and to an attorney the recipient consults for related legal advice or
assistance. In doing so, the recipient must advise them of the secrecy requirements.
Aside from its attorney and at the agency’s election, the recipient must also identify
those to whom it has disclosed the request. A recipient may petition the court to
modify or extinguish any NSL secrecy requirement within a year of issuance.64
Thereafter, it may petition to have the veil of secrecy lifted, although it may resubmit
a rejected request only once a year.65 In all instances, the standards used for the
original secrecy certification govern – danger to national security, interference with
diplomatic relations or ongoing investigations, and personal safety – and a good faith
agency certification that disclosure would create such a risk is conclusive.66 A breach
of a confidentiality requirement committed knowingly and with the intent to obstruct
an investigation or related judicial proceedings is punishable by imprisonment for not
more than five years and/or a fine of not more than $250,000 (not more than
$500,000 for an organization).67
61 50 U.S.C. 436(a)(2),(3).
62 18 U.S.C. 2709(c) (2000 ed.); see also, 12 U.S.C. 3414(a)(5)(D) (2000 ed.); 15 U.S.C.
1681u(d) (2000 ed.); 15 U.S.C. 1681v(c) (2002 Supp.); 50 U.S.C. 436(b) (2000 ed.).
63 Doe v. Ashcroft, 334 F.Supp.2d 471, 522 (S.D.N.Y. 2004). and Doe v. Gonzales, 386
F.Supp.2d 66, 78-81 (D.Conn. 2005).
64 28 U.S.C. 3511(b)(2).
65 28 U.S.C. 3511(b)(3).
66 28 U.S.C. 3511(b)(2), (30.
67 18 U.S.C. 1510(e), 3571, 3559.

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CRS-13
Judicial Review and Enforceability.
In addition to authority to review and set aside NSL nondisclosure requirements,
the federal courts also enjoy jurisdiction to review and enforce the underlying NSL
requests. Recipients may petition and be granted an order modifying or setting aside
an NSL, if the court finds that compliance would be unreasonable, oppressive, or
otherwise unlawful.68 Subpoenas issued under the Federal Rules of Criminal
Procedure may be modified or quashed if compliance would be unreasonable or
oppressive.69 The Rule affords protection against undue burdens and protects
privileged communications.70 Compliance with a particular NSL might be unduly
burdensome in some situations, but the circumstances under which NSLs are used
suggest few federally recognized privileges. The Rule also imposes a relevancy
requirement, but in the context of an investigation a motion to quash will be denied
unless it can be shown that “there is no reasonable possibility that the category of
materials the Government seeks will produce information relevant” to the
investigation.71 The authority to modify or set aside a NSL that is unlawful affords
the court an opportunity to determine whether the NSL in question complies with the
statutory provisions under which it was issued. On the other hand, the court’s
authority may be invoked to enforce the NSL against a recalcitrant recipient and
failure to comply thereafter is punishable as contempt of court.72
Dissemination.
Attorney General guidelines govern the sharing of information acquired in
response to NSLs under two statutes.73 A third, the older of the two Fair Credit
Report Act sections limits dissemination to sharing within the FBI, with other
agencies to the extent necessary to secure approval of a foreign counterintelligence
investigation, or with military investigators when the information concerns a member
of the Armed Forces.74 The National Security Act authorizes dissemination of NSL
information to the agency of the employee under investigation, to the Justice
Department for law enforcement or counterintelligence purposes, or to another
federal agency if the information is clearly relevant to its mission.75 The more recent
68 28 U.S.C. 3511.
69 F.R.Crim.P. 17(c)(2).
70 2 WRIGHT, FEDERAL PRACTICE AND PROCEDURE §275 (Crim. 3d ed. 2000).
71 United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991).
72 28 U.S.C. 3511(c).
73 12 U.S.C. 3414(a)(5)(B)(“The Federal Bureau of Investigation may disseminate
information obtained pursuant to this paragraph only as provided in guidelines approved by
the Attorney General for foreign intelligence collection and foreign counterintelligence
investigations conducted by the Federal Bureau of Investigation, and, with respect to
dissemination to an agency of the United States, only if such information is clearly relevant
to the authorized responsibilities of such agency”); see also, 18 U.S.C. 2709(d).
74 15 U.S.C. 1681u(f).
75 50 U.S.C. 436(e).

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CRS-14
Fair Credit Reporting Act NSL section has no explicit provision on restricting
dissemination.76
Liability, Fees and Oversight.
Since judicial enforcement is a feature new to all but one of the NSL statutes,77
they might be expected to include other incentives to overcome recipient resistance.
Three do offer immunity from civil liability for recipients who comply in good
faith,78 and two offer fees or reimbursement to defer the costs of compliance.79
The confidentiality that necessarily surrounds NSL requests could give rise to
concerns of governmental overreaching. Consequently, regular reports on the use of
NSL authority must be made to the Congressional intelligence and judiciary
committees and in some instances to the banking committees.80 Moreover, section
119 of the USA PATRIOT Improvement and Reauthorization Act instructs the
Inspector General of the Department of Justice to audit and to report to the judiciary
and intelligence committees as to the Department’s use of the authority in the years
following expansion of the authority in the USA PATRIOT Act. The section also
directs the Attorney General and the Director of National Intelligence to report to
Congress on the feasibility of establishing minimization requirements for the NSLs.
The chart that follows summarizes the differences among the five NSL sections:
76 15 U.S.C. 1681v.
77 In addition to the newly added judicial enforcement mechanism in 28 U.S.C. 3511, the
earlier Fair Credit Report Act NSL sections had a limited judicial enforcement subsection,
as it had for some time, 15 U.S.C. 1681u(c).
78 15 U.S.C. 1681u(k), 1681v(e); 50 U.S.C. 436(c)(2).
79 15 U.S.C. 1681u(e); 50 U.S.C. 4356(d).
80 P.L. 109-177, §118(a)(adding the judiciary committees as recipients of all NSL required
reports); 12 U.S.C. 3414(a)(5)(C)(intelligence committees); 18 U.S.C. 2709 (intelligence
and judiciary committees); 15 U.S.C. 1681u(h)(intelligence and banking committees),
1681v(judiciary, intelligence, and banking committees).

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CRS-15
NSL statute
18 U.S.C. 2709
12 U.S.C. 3414
15 U.S.C.
15 U.S.C.
50 U.S.C. 436
1681u
1681v
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
conducting
Director of
intelligence
agency w/
activities
employees w/
relating to or
access to
analyzing int’l
classified
terrorism
material
Information
identified
identified
identified
all information
all financial
covered
customer’s
customer
consumer’s
relating to an
information
name, address,
financial
name, address,
identified
relating to
length of
records
former address,
consumer
consenting,
service, and
place and
identified
billing info
former place of
employee
employment
Standard/
relevant to an
sought for
sought for an
necessary for
necessary to
Purpose
investigation to
foreign counter-
investigation to
the agency’s
conduct a law
protect against
intelligence
protect against
investigation,
enforcement
int’l terrorism
purposes to
int’l terrorism
activities, or
investigation,
or clandestine
protect against
or clandestine
analysis relating
counter-
intelligence
int’l terrorism
intelligence
to int’l terrorism
intelligence
activities
or clandestine
activities
inquiry or
intelligence
security
activities
determination
Dissemination
only per Att’y
only per Att’y
w/i FBI, to
no statutory
only to agency
Gen. guidelines
Gen. guidelines
secure approval
provision
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
when clearly
member
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

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CRS-16
Inspector General’s Report
Section 119 of the USA PATRIOT Improvement and Reauthorization Act, P.L.
109-177, 120 Stat. 219 (2006), instructed the Department of Justice’s Inspector
General to review and report on the FBI’s use of NSLs. In early March 2007, the
Inspector General released the first of two required reports that covered calendar
years 2003 through 2005. The second, covering the time period through the end of
calendar year 2006 is due before the end of this year (P.L. 109-177, §119(c)(2), 120
Stat. 220 (2006)).
The report notes that FBI use of NSLs has increased dramatically, expanding
from 8,500 requests in 2000 to 47,000 in 2005, IG Report at 120. Seventy-four
percent were issued in conjunction with counterterrorism investigations, most of the
rest in connection with counterintelligence investigations, and less than 1 percent as
part of a foreign computer intrusion investigation, Id. During the 3 years under
review, the percentage of NSLs used to investigate Americans (“U.S. persons”)
increased from 39% in 2003 to 53% in 2005.81 A substantial majority of the requests
involve records relating to telephone or e-mail communications, IG Report at 120.
The report is somewhat critical of the FBI’s initial performance:
[W]e found that the FBI used NSLs in violation of applicable NSL statutes,
Attorney General Guidelines, and internal FBI policies. In addition, we found
that the FBI circumvented the requirements of the ECPA NSL statute when it
issued at least 739 “exigent letters” to obtain telephone toll billing records and
subscriber information from three telephone companies without first issuing
NSLs. Moreover, in a few other instances, the FBI sought or obtained telephone
toll billing records in the absence of a national security investigation, when it
sought and obtained consumer full credit reports in a counterintelligence
investigation, and when it sought and obtained financial records and telephone
toll billing records without first issuing NSLs. Id. at 124.
More specifically, the Report found that:
the only FBI data collection system produced “inaccurate” results
! a “significant number of NSL-related possible violations are not
being identified or reported” as required
! the FBI issued over 700 exigent letters acquiring information in a
manner that “circumvented the ECPA NSL statute and violated the
Attorney General’s Guidelines. . . and internal FBI policy”
81 Id. A “U.S. person” is generally understood to mean “a citizen of the United States, an
alien lawfully admitted for permanent residence (as defined in section 1101(a)(2) of title 8),
an unincorporated association a substantial number of members of which are citizens of the
United States or aliens lawfully admitted for permanent residence, or a corporation which
is incorporated in the United States, but does not include a corporation or an association
which is a foreign power, as defined in subsection(a)(1), (2), or (3) of this section,” 50
U.S.C. 1801.

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CRS-17
! the FBI’s Counterrorism Division initiated over 300 NSLs in a
manner that precluded effective review prior to approval
! 60% of the individual files examined showed violations of FBI
internal control policies
! the FBI does not retain signed copies of the NSLs it issues
! the FBI has not provided clear guidance on the application of the
Attorney General’s least-intrusive-feasible-investigative-technique
standard in the case of NSLs
! the precise interpretation of toll billing information as it appears in
the ECPA NSL statute is unclear
! SAC supervision of the attorneys responsible for review of the legal
adequacy of proposed NSLs made some of the attorneys reluctant to
question the adequacy of the underlying investigation previously
approved by the SAC
! there was no indication that the FBI’s misuse of NSL authority
constituted criminal conduct
! personnel both at FBI headquarters and in the field consider NSL use
indispensable
! information generated by NSLs is fed into a number of FBI systems.
IG Report at 121-24
Exigent Letters.
Prior to enactment of the ECPA, the Supreme Court held that customers had no
Fourth Amendment protected privacy rights in the records the telephone company
maintained relating to their telephone use.82 Where a recognized expectation of
privacy exists for Fourth Amendment purposes, the Amendment’s usual demands
such as those of probable cause, particularity, and a warrant may be eased in the face
of exigent circumstances. For example, the Fourth Amendment requirement that
officers must knock and announce their purpose before forcibly entering a building
to execute a warrant can be eased in the presence of certain exigent circumstances
such as the threat of the destruction of evidence or danger to the officers.83 Satisfying
Fourth Amendment requirements, however, does not necessary satisfy statutory
demands.
82 Smith v. Maryland, 442 U.S. 735, 745 (1979)
83 Richards v. Wisconsin, 520 U.S. 385, 391 (1997); Wilson v. Arkansas, 514 U.S. 927, 936
(1995).

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CRS-18
The ECPA prohibits communications service providers from supplying
information concerning customer records unless one of the statutory exceptions
applies.84 There are specific exceptions for disclosure upon receipt of a grand jury
subpoena85 or an NSL.86 A service provider who knowingly or intentionally violates
the prohibition is subject to civil liability,87 but there are no criminal penalties for the
breach.
The Inspector General found that contrary to assertions that “the FBI would
obtain telephone records only after it served NSLs or grand jury subpoenas, the FBI
obtained telephone bill records and subscriber information prior to serving NSLs or
grand jury subpoenas.”88 The FBI responded that it had barred the use of exigent
letters, but emphasized that the term “exigent letter” does not include emergency
disclosures under the exception now found in 18 U.S.C. 2702(c) (4). Thus, the FBI
might request that a service provider invoke that exception to the record disclosure
bar “if the provider reasonably believes that an emergency involving immediate
danger of death or serious physical injury to any person justifies disclosure of the
information,” 18 U.S.C. 2702(c)(4).
84 18 U.S.C. 2702(c).
85 18 U.S.C. 2703(c)(2).
86 18 U.S.C. 2709(a).
87 18 U.S.C. 2707(a).
88 IG Report at 90.

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CRS-19
Appendix
(Language added by P.L. 109-177(H.R. 3199): in italics)
(Language repealed: struck out)
(Language added by P.L. 109-178 (S. 2271): underlined)
12 U.S.C. 3414
(a)(1) Nothing in this chapter (except sections 3415, 3417, 3418, and 3421 of this title) shall
apply to the production and disclosure of financial records pursuant to requests from:
(A) a Government authority authorized to conduct foreign counter- or foreign
positive-intelligence activities for purposes of conducting such activities;
(B) the Secret Service for the purpose of conducting its protective functions (18 U.S.C.
3056; 3 U.S.C. 202, Public Law 90-331, as amended); or
(C) a Government authority authorized to conduct investigations of, or intelligence or
counterintelligence analyses related to, international terrorism for the purpose of conducting
such investigations or analyses.
(2) In the instances specified in paragraph (1), the Government authority shall submit to the
financial institution the certificate required in section 3403(b) of this title signed by a supervisory
official of a rank designated by the head of the Government authority.
(3) No financial institution, or officer, employee, or agent of such institution, shall disclose to
any person that a Government authority described in paragraph (1) has sought or obtained access to
a customer’s financial records.
(3)(A) If the Government authority described in paragraph (1) or the Secret Service, as the case
may be, certifies that otherwise there may result a danger to the national security of the United States,
interference with a criminal, counterterrorism, or counterintelligence investigation, interference with
diplomatic relations, or danger to the life or physical safety of any person, no financial institution,
or officer, employee, or agent of such institution, shall disclose to any person (other than those to
whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice
or legal assistance with respect to the request) that the Government authority or the Secret Service
has sought or obtained access to a customer's financial records.
(B) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under subparagraph (A).
(C) Any recipient disclosing to those persons necessary to comply with the request or to an
attorney to obtain legal advice or legal assistance with respect to the request shall inform such
persons of any applicable nondisclosure requirement. Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on disclosure under subparagraph (A).
(D) At the request of the authorized Government agency or the Secret Service, any person
making or intending to make a disclosure under this section shall identify to the requesting official
of the authorized Government agency or the Secret Service the person to whom such disclosure will
be made or to whom such disclosure was made prior to the request, [but in no circumstance shall a
person be required to inform such requesting official that the person intends to consult an attorney
to obtain legal advice or legal assistance] except that nothing in this section shall require a person
to inform the requesting official of the authorized Government authority or the Secret Service of the
identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal
assistance with respect to the request for financial records under this subsection.
(4) The Government authority specified in paragraph (1) shall compile an annual tabulation of
the occasions in which this section was used.
(5)(A) Financial institutions, and officers, employees, and agents thereof, shall comply with a
request for a customer’s or entity’s financial records made pursuant to this subsection by the Federal
Bureau of Investigation when the Director of the Federal Bureau of Investigation (or the Director’s
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) certifies in writing to the financial
institution that such records are sought for foreign counter intelligence purposes to protect against
international terrorism or clandestine intelligence activities, provided that such an investigation of a
United States person is not conducted solely upon the basis of activities protected by the first
amendment to the Constitution of the United States.
(B) The Federal Bureau of Investigation may disseminate information obtained pursuant to this
paragraph only as provided in guidelines approved by the Attorney General for foreign intelligence
collection and foreign counterintelligence investigations conducted by the Federal Bureau of

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CRS-20
Investigation, and, with respect to dissemination to an agency of the United States, only if such
information is clearly relevant to the authorized responsibilities of such agency.
(C) On the dates provided in section 415b of Title 50, the Attorney General shall fully inform
the congressional intelligence committees (as defined in section 401a of Title 50) concerning all
requests made pursuant to this paragraph.
(D) No financial institution, or officer, employee, or agent of such institution, shall disclose to
any person that the Federal Bureau of Investigation has sought or obtained access to a customer’s or
entity’s financial records under this paragraph.
(i) If 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, certifies that otherwise there may result a danger to the
national security of the United States, interference with a criminal, counterterrorism, or
counterintelligence investigation, interference with diplomatic relations, or danger to the life or
physical safety of any person, no financial institution, or officer, employee, or agent of such
institution, shall disclose to any person (other than those to whom such disclosure is necessary to
comply with the request or an attorney to obtain legal advice or legal assistance with respect to the
request) that the Federal Bureau of Investigation has sought or obtained access to a customer's or
entity's financial records under subparagraph (A).
(ii) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under clause (i).
(iii) Any recipient disclosing to those persons necessary to comply with the request or to an
attorney to obtain legal advice or legal assistance with respect to the request shall inform such
persons of any applicable nondisclosure requirement. Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on disclosure under clause (i).
(iv) At the request of the Director of the Federal Bureau of Investigation or the designee of the
Director, any person making or intending to make a disclosure under this section shall identify to the
Director or such designee the person to whom such disclosure will be made or to whom such
disclosure was made prior to the request, [but in no circumstance shall a person be required to
inform the Director or such designee that the person intends to consult an attorney to obtain legal
advice or legal assistance] except that nothing in this section shall require a person to inform the
Director or such designee of the identity of an attorney to whom disclosure was made or will be made
to obtain legal advice or legal assistance with respect to the request for financial records under
subparagraph (A).
(b)(1) Nothing in this chapter shall prohibit a Government authority from obtaining financial
records from a financial institution if the Government authority determines that delay in obtaining
access to such records would create imminent danger of —
(A) physical injury to any person;
(B) serious property damage; or
(C) flight to avoid prosecution.
(2) In the instances specified in paragraph (1), the Government shall submit to the financial
institution the certificate required in section 3403(b) of this title signed by a supervisory official of a
rank designated by the head of the Government authority.
(3) Within five days of obtaining access to financial records under this subsection, the
Government authority shall file with the appropriate court a signed, sworn statement of a supervisory
official of a rank designated by the head of the Government authority setting forth the grounds for the
emergency access. The Government authority shall thereafter comply with the notice provisions of
section 3409(c) of this title.
(4) The Government authority specified in paragraph (1) shall compile an annual tabulation of
the occasions in which this section was used.
[there is no subsection (c)]
(d) For purposes of this section, and sections 1115 and 1117 [12 U.S.C. 3415, 3417 relating to
cost reimbursement and civil penalties respectively] insofar as they relate to the operation of this
section, the term “financial institution” has the same meaning as in subsections (a)(2) and (c)(1) of
section 5312 of title 31, United States Code, except that, for purposes of this section, such term shall
include only such a financial institution any part of which is located inside any State or territory of the
United States, the District of Columbia, Puerto Rico, Guam, American Samoa, the Commonwealth of
the Northern Mariana Islands, or the United States Virgin Islands. [Subsection (d) was added by
subsection 374(a) of the Intelligence Authorization Act for Fiscal Year 2004, P.L. 108-177, 117 Stat.
2628 (2003). ]

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18 U.S.C. 2709
(a) Duty to provide. — A wire or electronic communication service provider shall comply with
a request for subscriber information and toll billing records information, or electronic communication
transactional records in its custody or possession made by the Director of the Federal Bureau of
Investigation under subsection (b) of this section.
(b) Required certification. — 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, may —
(1) request the name, address, length of service, and local and long distance toll billing records
of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic
communication service provider to which the request is made that the name, address, length of service,
and toll billing records sought are relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence activities, provided that such an investigation of a
United States person is not conducted solely on the basis of activities protected by the first amendment
to the Constitution of the United States; and
(2) request the name, address, and length of service of a person or entity if the Director (or his
designee) certifies in writing to the wire or electronic communication service provider to which the
request is made that the information sought is relevant to an authorized investigation to protect against
international terrorism or clandestine intelligence activities, provided that such an investigation of a
United States person is not conducted solely upon the basis of activities protected by the first
amendment to the Constitution of the United States.
(c) Prohibition of certain disclosure. — No wire or electronic communication service provider,
or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of
Investigation has sought or obtained access to information or records under this section.
(1) If 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, certifies that otherwise there may result a danger to the
national security of the United States, interference with a criminal, counterterrorism, or
counterintelligence investigation, interference with diplomatic relations, or danger to the life or
physical safety of any person, no wire or electronic communications service provider, or officer,
employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure
is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with
respect to the request) that the Federal Bureau of Investigation has sought or obtained access to
information or records under this section.
(2) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under paragraph (1).
(3) Any recipient disclosing to those persons necessary to comply with the request or to an
attorney to obtain legal advice or legal assistance with respect to the request shall inform such person
of any applicable nondisclosure requirement. Any person who receives a disclosure under this
subsection shall be subject to the same prohibitions on disclosure under paragraph (1).
(4) At the request of the Director of the Federal Bureau of Investigation or the designee of the
Director, any person making or intending to make a disclosure under this section shall identify to the
Director or such designee the person to whom such disclosure will be made or to whom such
disclosure was made prior to the request, [but in no circumstance shall a person be required to
inform the Director or such designee that the person intends to consult an attorney to obtain legal
advice or legal assistance] except that nothing in this section shall require a person to inform the
Director or such designee of the identity of an attorney to whom disclosure was made or will be made
to obtain legal advice or legal assistance with respect to the request under subsection (a).
(d) Dissemination by bureau. — The Federal Bureau of Investigation may disseminate
information and records obtained under this section only as provided in guidelines approved by the
Attorney General for foreign intelligence collection and foreign counterintelligence investigations
conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of
the United States, only if such information is clearly relevant to the authorized responsibilities of such
agency.
(e) Requirement that certain congressional bodies be informed. — On a semiannual basis the
Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on
Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate,
and the Committee on the Judiciary of the House of Representatives and the Committee on the
Judiciary of the Senate, concerning all requests made under subsection (b) of this section.

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(f) Libraries- A library (as that term is defined in section 213(1) of the Library Services and
Technology Act (20 U.S.C. 9122(1)), the services of which include access to the Internet, books,
journals, magazines, newspapers, or other similar forms of communication in print or digitally by
patrons for their use, review, examination, or circulation, is not a wire or electronic communication
service provider for purposes of this section, unless the library is providing the services defined in
section 2510(15) (`electronic communication service') of this title.
15 U.S.C. 1681v.
(a) Disclosure
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.
(b) Form of certification
The certification described in subsection (a) shall be signed by a supervisory official designated
by the head of a Federal agency or an officer of a Federal agency whose appointment to office is
required to be made by the President, by and with the advice and consent of the Senate.
(c) Confidentiality
No consumer reporting agency, or officer, employee, or agent of such consumer reporting
agency, shall disclose to any person, or specify in any consumer report, that a government agency has
sought or obtained access to information under subsection (a).
(1) If the head of a government agency authorized to conduct investigations of intelligence or
counterintelligence activities or analysis related to international terrorism, or his designee, certifies
that otherwise there may result a danger to the national security of the United States, interference
with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic
relations, or danger to the life or physical safety of any person, no consumer reporting agency or
officer, employee, or agent of such consumer reporting agency, shall disclose to any person (other
than those to whom such disclosure is necessary to comply with the request or an attorney to obtain
legal advice or legal assistance with respect to the request), or specify in any consumer report, that
a government agency has sought or obtained access to information under subsection (a).
(2) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under paragraph (1).
(3) Any recipient disclosing to those persons necessary to comply with the request or to any
attorney to obtain legal advice or legal assistance with respect to the request shall inform such
persons of any applicable nondisclosure requirement. Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).
(4) At the request of the authorized Government agency, any person making or intending to
make a disclosure under this section shall identify to the requesting official of the authorized
Government agency the person to whom such disclosure will be made or to whom such disclosure was
made prior to the request, [but in no circumstance shall a person be required to inform such
requesting official that the person intends to consult an attorney to obtain legal advice or legal
assistance] except that nothing in this section shall require a person to inform the requesting official
of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or
legal assistance with respect to the request for information under subsection (a).
(d) Rule of construction
Nothing in section 1681u of this title shall be construed to limit the authority of the Director of
the Federal Bureau of Investigation under this section.
(e) Safe harbor
Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent
or employee thereof making disclosure of consumer reports or other information pursuant to this
section in good-faith reliance upon a certification of a governmental agency pursuant to the provisions
of this section shall not be liable to any person for such disclosure under this subchapter, the
constitution of any State, or any law or regulation of any State or any political subdivision of any State.
(f) Reports to Congress- (1) On a semi-annual basis, the Attorney General shall fully inform the
Committee on the Judiciary, the Committee on Financial Services, and the Permanent Select
Committee on Intelligence of the House of Representatives and the Committee on the Judiciary, the

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Committee on Banking, Housing, and Urban Affairs, and the Select Committee on Intelligence of the
Senate concerning all requests made pursuant to subsection (a).
(2) In the case of the semiannual reports required to be submitted under paragraph (1) to the
Permanent Select Committee on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate, the submittal dates for such reports shall be as provided in
section 507 of the National Security Act of 1947 (50 U.S.C. 415b).
15 U.S.C. 1681u.
(a) Identity of financial institutions
Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer
reporting agency shall furnish to the Federal Bureau of Investigation the names and addresses of all
financial institutions (as that term is defined in section 3401 of Title 12) at which a consumer
maintains or has maintained an account, to the extent that information is in the files of the agency,
when presented with a written request for that information, signed by the Director of the Federal
Bureau of Investigation, or the Director’s designee in a position not lower than Deputy Assistant
Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by
the Director, which certifies compliance with this section. The Director or the Director’s designee
may make such a certification only if the Director or the Director’s designee has determined in writing,
that such information is sought for the conduct of an authorized investigation to protect against
international terrorism or clandestine intelligence activities, provided that such an investigation of a
United States person is not conducted solely upon the basis of activities protected by the first
amendment to the Constitution of the United States.
(b) Identifying information
Notwithstanding the provisions of section 1681b of this title or any other provision of this
subchapter, a consumer reporting agency shall furnish identifying information respecting a consumer,
limited to name, address, former addresses, places of employment, or former places of employment,
to the Federal Bureau of Investigation when presented with a written request, signed by the Director
or the Director’s designee in a position not lower than Deputy Assistant Director at Bureau
headquarters or a Special Agent in Charge of a Bureau field office designated by the Director, which
certifies compliance with this subsection. The Director or the Director’s designee may make such a
certification only if the Director or the Director’s designee has determined in writing that such
information is sought for the conduct of an authorized investigation to protect against international
terrorism or clandestine intelligence activities, provided that such an investigation of a United States
person is not conducted solely upon the basis of activities protected by the first amendment to the
Constitution of the United States.
(c) Court order for disclosure of consumer reports
Notwithstanding section 1681b of this title or any other provision of this subchapter, if requested
in writing by the Director of the Federal Bureau of Investigation, or a designee of the Director 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, a court may issue an order ex parte directing a
consumer reporting agency to furnish a consumer report to the Federal Bureau of Investigation, upon
a showing in camera that the consumer report is sought for the conduct of an authorized investigation
to protect against international terrorism or clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely upon the basis of activities protected
by the first amendment to the Constitution of the United States.
The terms of an order issued under this subsection shall not disclose that the order is issued for
purposes of a counterintelligence investigation.
(d) Confidentiality
No consumer reporting agency or officer, employee, or agent of a consumer reporting agency
shall disclose to any person, other than those officers, employees, or agents of a consumer reporting
agency necessary to fulfill the requirement to disclose information to the Federal Bureau of
Investigation under this section, that the Federal Bureau of Investigation has sought or obtained the
identity of financial institutions or a consumer report respecting any consumer under subsection (a),
(b), or (c) of this section, and no consumer reporting agency or officer, employee, or agent of a
consumer reporting agency shall include in any consumer report any information that would indicate
that the Federal Bureau of Investigation has sought or obtained such information or a consumer report.
(1) If 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, certifies that otherwise there may result a danger to the
national security of the United States, interference with a criminal, counterterrorism, or

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counterintelligence investigation, interference with diplomatic relations, or danger to the life or
physical safety of any person, no consumer reporting agency or officer, employee, or agent of a
consumer reporting agency shall disclose to any person (other than those to whom such disclosure
is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with
respect to the request) that the Federal Bureau of Investigation has sought or obtained the identity
of financial institutions or a consumer report respecting any consumer under subsection (a), (b), or
(c), and no consumer reporting agency or officer, employee, or agent of a consumer reporting agency
shall include in any consumer report any information that would indicate that the Federal Bureau
of Investigation has sought or obtained such information on a consumer report.
(2) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under paragraph (1).
(3) Any recipient disclosing to those persons necessary to comply with the request or to an
attorney to obtain legal advice or legal assistance with respect to the request shall inform such
persons of any applicable nondisclosure requirement. Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).
(4) At the request of the Director of the Federal Bureau of Investigation or the designee of the
Director, any person making or intending to make a disclosure under this section shall identify to the
Director or such designee the person to whom such disclosure will be made or to whom such
disclosure was made prior to the request,[ but in no circumstance shall a person be required to
inform the Director or such designee that the person intends to consult an attorney to obtain legal
advice or legal assistance] except that nothing in this section shall require a person to inform the
Director or such designee of the identity of an attorney to whom disclosure was made or will be made
to obtain legal advice or legal assistance with respect to the request for the identity of financial
institutions or a consumer report respecting any consumer under this section.
(e) Payment of fees
The Federal Bureau of Investigation shall, subject to the availability of appropriations, pay to
the consumer reporting agency assembling or providing report or information in accordance with
procedures established under this section a fee for reimbursement for such costs as are reasonably
necessary and which have been directly incurred in searching, reproducing, or transporting books,
papers, records, or other data required or requested to be produced under this section.
(f) Limit on dissemination
The Federal Bureau of Investigation may not disseminate information obtained pursuant to this
section outside of the Federal Bureau of Investigation, except to other Federal agencies as may be
necessary for the approval or conduct of a foreign counterintelligence investigation, or, where the
information concerns a person subject to the Uniform Code of Military Justice, to appropriate
investigative authorities within the military department concerned as may be necessary for the conduct
of a joint foreign counterintelligence investigation.
(g) Rules of construction
Nothing in this section shall be construed to prohibit information from being furnished by the
Federal Bureau of Investigation pursuant to a subpoena or court order, in connection with a judicial
or administrative proceeding to enforce the provisions of this subchapter. Nothing in this section shall
be construed to authorize or permit the withholding of information from the Congress.
(h) Reports to Congress
(1) On a semiannual basis, the Attorney General shall fully inform the Permanent Select
Committee on Intelligence and the Committee on Banking, Finance and Urban Affairs of the House
of Representatives, and the Select Committee on Intelligence and the Committee on Banking, Housing,
and Urban Affairs of the Senate concerning all requests made pursuant to subsections (a), (b), and (c)
of this section.
(2) In the case of the semiannual reports required to be submitted under paragraph (1) to the
Permanent Select Committee on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate, the submittal dates for such reports shall be as provided in
section 415b of Title 50.
(i) Damages
Any agency or department of the United States obtaining or disclosing any consumer reports,
records, or information contained therein in violation of this section is liable to the consumer to whom
such consumer reports, records, or information relate in an amount equal to the sum of —
(1) $100, without regard to the volume of consumer reports, records, or information involved;
(2) any actual damages sustained by the consumer as a result of the disclosure;
if the violation is found to have been willful or intentional, such punitive damages as a court may
allow; and

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(4) in the case of any successful action to enforce liability under this subsection, the costs of the
action, together with reasonable attorney fees, as determined by the court.
(j) Disciplinary actions for violations
If a court determines that any agency or department of the United States has violated any
provision of this section and the court finds that the circumstances surrounding the violation raise
questions of whether or not an officer or employee of the agency or department acted willfully or
intentionally with respect to the violation, the agency or department shall promptly initiate a
proceeding to determine whether or not disciplinary action is warranted against the officer or employee
who was responsible for the violation.
(k) Good-faith exception
Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent
or employee thereof making disclosure of consumer reports or identifying information pursuant to this
subsection in good-faith reliance upon a certification of the Federal Bureau of Investigation pursuant
to provisions of this section shall not be liable to any person for such disclosure under this subchapter,
the constitution of any State, or any law or regulation of any State or any political subdivision of any
State.
(l) Limitation of remedies
Notwithstanding any other provision of this subchapter, the remedies and sanctions set forth in
this section shall be the only judicial remedies and sanctions for violation of this section.
(m) Injunctive relief
In addition to any other remedy contained in this section, injunctive relief shall be available to
require compliance with the procedures of this section. In the event of any successful action under this
subsection, costs together with reasonable attorney fees, as determined by the court, may be recovered.
50 U.S.C. 436.
(a) Generally
(1) Any authorized investigative agency may request from any financial agency, financial
institution, or holding company, or from any consumer reporting agency, such financial records, other
financial information, and consumer reports as may be necessary in order to conduct any authorized
law enforcement investigation, counterintelligence inquiry, or security determination. Any authorized
investigative agency may also request records maintained by any commercial entity within the United
States pertaining to travel by an employee in the executive branch of Government outside the United
States.
(2) Requests may be made under this section where —
(A) the records sought pertain to a person who is or was an employee in the executive branch
of Government required by the President in an Executive order or regulation, as a condition of access
to classified information, to provide consent, during a background investigation and for such time as
access to the information is maintained, and for a period of not more than three years thereafter,
permitting access to financial records, other financial information, consumer reports, and travel
records; and
(B)(i) there are reasonable grounds to believe, based on credible information, that the person
is, or may be, disclosing classified information in an unauthorized manner to a foreign power or agent
of a foreign power;
(ii) information the employing agency deems credible indicates the person has incurred
excessive indebtedness or has acquired a level of affluence which cannot be explained by other
information known to the agency; or
(iii) circumstances indicate the person had the capability and opportunity to disclose classified
information which is known to have been lost or compromised to a foreign power or an agent of a
foreign power.
(3) Each such request —
(A) shall be accompanied by a written certification signed by the department or agency head or
deputy department or agency head concerned, or by a senior official designated for this purpose by
the department or agency head concerned (whose rank shall be no lower than Assistant Secretary or
Assistant Director), and shall certify that —
(i) the person concerned is or was an employee within the meaning of paragraph (2)(A);
(ii) the request is being made pursuant to an authorized inquiry or investigation and is authorized
under this section; and
(iii) the records or information to be reviewed are records or information which the employee
has previously agreed to make available to the authorized investigative agency for review;
(B) shall contain a copy of the agreement referred to in subparagraph (A)(iii);

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(C) shall identify specifically or by category the records or information to be reviewed; and
(D) shall inform the recipient of the request of the prohibition described in subsection (b) of this
section.
(b) Disclosure of requests
Notwithstanding any other provision of law, no governmental or private entity, or officer,
employee, or agent of such entity, may disclose to any person, other than those officers, employees,
or agents of such entity necessary to satisfy a request made under this section, that such entity has
received or satisfied a request made by an authorized investigative agency under this section.
(1) If an authorized investigative agency described in subsection (a) certifies that otherwise
there may result a danger to the national security of the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or
danger to the life or physical safety of any person, no governmental or private entity, or officer,
employee, or agent of such entity, may disclose to any person (other than those to whom such
disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal
assistance with respect to the request) that such entity has received or satisfied a request made by an
authorized investigative agency under this section.
(2) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under paragraph (1).
(3) Any recipient disclosing to those persons necessary to comply with the request or to an
attorney to obtain legal advice or legal assistance with respect to the request shall inform such
persons of any applicable nondisclosure requirement. Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).
(4) At the request of the authorized investigative agency, any person making or intending to
make a disclosure under this section shall identify to the requesting official of the authorized
investigative agency the person to whom such disclosure will be made or to whom such disclosure was
made prior to the request, [but in no circumstance shall a person be required to inform such official
that the person intends to consult an attorney to obtain legal advice or legal assistance] except that
nothing in this section shall require a person to inform the requesting official of the identity of an
attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with
respect to the request under subsection (a).
(c) Records or information; inspection or copying
(1) Notwithstanding any other provision of law (other than section 6103 of Title 26), an entity
receiving a request for records or information under subsection (a) of this section shall, if the request
satisfies the requirements of this section, make available such records or information within 30 days
for inspection or copying, as may be appropriate, by the agency requesting such records or
information.
(2) Any entity (including any officer, employee, or agent thereof) that discloses records or
information for inspection or copying pursuant to this section in good faith reliance upon the
certifications made by an agency pursuant to this section shall not be liable for any such disclosure to
any person under this subchapter, the constitution of any State, or any law or regulation of any State
or any political subdivision of any State.
(d) Reimbursement of costs
Any agency requesting records or information under this section may, subject to the availability
of appropriations, reimburse a private entity for any cost reasonably incurred by such entity in
responding to such request, including the cost of identifying, reproducing, or transporting records or
other data.
(e) Dissemination of records or information received
An agency receiving records or information pursuant to a request under this section may
disseminate the records or information obtained pursuant to such request outside the agency only —
(1) to the agency employing the employee who is the subject of the records or information;
(2) to the Department of Justice for law enforcement or counterintelligence purposes; or
(3) with respect to dissemination to an agency of the United States, if such information is clearly
relevant to the authorized responsibilities of such agency.
(f) Construction of section
Nothing in this section may be construed to affect the authority of an investigative agency to
obtain information pursuant to the Right to Financial Privacy Act (12 U.S.C. 3401 et seq.) or the Fair
Credit Reporting Act (15 U.S.C. 1681 et seq.).

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18 U.S.C. 1510
* * *
(e) Whoever, having been notified of the applicable disclosure prohibitions or confidentiality
requirements of section 2709(c)(1) of this title, section 626(d)(1) or 627(c)(1) of the Fair Credit
Reporting Act (15 U.S.C. 1681u(d)(1) or 1681v(c)(1)), section 1114(a)(3)(A) or 1114(a)(5)(D)(i) of
the Right to Financial Privacy Act (12 U.S.C. 3414(a)(3)(A) or 3414(a)(5)(D)(i)), or section 802(b)(1)
of the National Security Act of 1947 (50 U.S.C. 436(b)(1)), knowingly and with the intent to obstruct
an investigation or judicial proceeding violates such prohibitions or requirements applicable by law
to such person shall be imprisoned for not more than five years, fined under this title, or both.
P.L. 109-177, Sec. 118
Reports on National Security Letters.
(a) Existing Reports- Any report made to a committee of Congress regarding national security
letters under section 2709(c)(1) of title 18, United States Code, sections 626(d) or 627(c) of the Fair
Credit Reporting Act (15 U.S.C. 1681u(d) or 1681v(c)), section 1114(a)(3) or 1114(a)(5)(D) of the
Right to Financial Privacy Act (12 U.S.C. 3414(a)(3) or 3414(a)(5)(D)), or section 802(b) of the
National Security Act of 1947 (50 U.S.C. 436(b)) shall also be made to the Committees on the
Judiciary of the House of Representatives and the Senate.
* * *
(c) Report on Requests for National Security Letters-
(1) IN GENERAL- In April of each year, the Attorney General shall submit to Congress an
aggregate report setting forth with respect to the preceding year the total number of requests made
by the Department of Justice for information concerning different United States persons under–
(A) section 2709 of title 18, United States Code (to access certain communication service
provider records), excluding the number of requests for subscriber information;
(B) section 1114 of the Right to Financial Privacy Act (12 U.S.C. 3414) (to obtain financial
institution customer records);
(C) section 802 of the National Security Act of 1947 (50 U.S.C. 436) (to obtain financial
information, records, and consumer reports);
(D) section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) (to obtain certain financial
information and consumer reports); and
(E) section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) (to obtain credit agency
consumer records for counterterrorism investigations).
(2) UNCLASSIFIED FORM- The report under this section shall be submitted in unclassified
form.
(d) National Security Letter Defined- In this section, the term `national security letter' means
a request for information under one of the following provisions of law:
(1) Section 2709(a) of title 18, United States Code (to access certain communication service
provider records).
(2) Section 1114(a)(5)(A) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)(A)) (to
obtain financial institution customer records).
(3) Section 802 of the National Security Act of 1947 (50 U.S.C. 436) (to obtain financial
information, records, and consumer reports).
(4) Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) (to obtain certain financial
information and consumer reports).
(5) Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) (to obtain credit agency
consumer records for counterterrorism investigations).

P.L. 109- 177, Sec. 119
Audit of Use of National Security Letters.
(a) Audit- The Inspector General of the Department of Justice shall perform an audit of the
effectiveness and use, including any improper or illegal use, of national security letters issued by the
Department of Justice.
(b) Requirements- The audit required under subsection (a) shall include–
(1) an examination of the use of national security letters by the Department of Justice during
calendar years 2003 through 2006;

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(2) a description of any noteworthy facts or circumstances relating to such use, including any
improper or illegal use of such authority; and
(3) an examination of the effectiveness of national security letters as an investigative tool,
including –
(A) the importance of the information acquired by the Department of Justice to the intelligence
activities of the Department of Justice or to any other department or agency of the Federal
Government;
(B) the manner in which such information is collected, retained, analyzed, and disseminated
by the Department of Justice, including any direct access to such information (such as access to `raw
data') provided to any other department, agency, or instrumentality of Federal, State, local, or tribal
governments or any private sector entity;
(C) whether, and how often, the Department of Justice utilized such information to produce an
analytical intelligence product for distribution within the Department of Justice, to the intelligence
community (as such term is defined in section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4))), or to other Federal, State, local, or tribal government departments, agencies, or
instrumentalities;
(D) whether, and how often, the Department of Justice provided such information to law
enforcement authorities for use in criminal proceedings;
(E) with respect to national security letters issued following the date of the enactment of this
Act, an examination of the number of occasions in which the Department of Justice, or an officer or
employee of the Department of Justice, issued a national security letter without the certification
necessary to require the recipient of such letter to comply with the nondisclosure and confidentiality
requirements potentially applicable under law; and
(F) the types of electronic communications and transactional information obtained through
requests for information under section 2709 of title 18, United States Code, including the types of
dialing, routing, addressing, or signaling information obtained, and the procedures the Department
of Justice uses if content information is obtained through the use of such authority.
(c) Submission Dates-
(1) PRIOR YEARS- Not later than one year after the date of the enactment of this Act, or upon
completion of the audit under this section for calendar years 2003 and 2004, whichever is earlier, the
Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and
the Permanent Select Committee on Intelligence of the House of Representatives and the Committee
on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results
of the audit conducted under this subsection for calendar years 2003 and 2004.
(2) CALENDAR YEARS 2005 AND 2006- Not later than December 31, 2007, or upon
completion of the audit under this subsection for calendar years 2005 and 2006, whichever is earlier,
the Inspector General of the Department of Justice shall submit to the Committee on the Judiciary and
the Permanent Select Committee on Intelligence of the House of Representatives and the Committee
on the Judiciary and the Select Committee on Intelligence of the Senate a report containing the results
of the audit conducted under this subsection for calendar years 2005 and 2006.
(d) Prior Notice to Attorney General and Director of National Intelligence; Comments-
(1) NOTICE- Not less than 30 days before the submission of a report under subsections (c)(1)
or (c)(2), the Inspector General of the Department of Justice shall provide such report to the Attorney
General and the Director of National Intelligence.
(2) COMMENTS- The Attorney General or the Director of National Intelligence may provide
comments to be included in the reports submitted under subsections (c)(1) or (c)(2) as the Attorney
General or the Director of National Intelligence may consider necessary.
(e) Unclassified Form- The reports submitted under subsections (c)(1) or (c)(2) and any
comments included under subsection (d)(2) shall be in unclassified form, but may include a classified
annex.
(f) Minimization Procedures Feasibility- Not later than February 1, 2007, or upon completion
of review of the report submitted under subsection (c)(1), whichever is earlier, the Attorney General
and the Director of National Intelligence shall jointly submit to the Committee on the Judiciary and
the Permanent Select Committee on Intelligence of the House of Representatives and the Committee
on the Judiciary and the Select Committee on Intelligence of the Senate a report on the feasibility of
applying minimization procedures in the context of national security letters to ensure the protection
of the constitutional rights of United States persons.
(g) National Security Letter Defined- In this section, the term `national security letter' means
a request for information under one of the following provisions of law:
(1) Section 2709(a) of title 18, United States Code (to access certain communication service
provider records).

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(2) Section 1114(a)(5)(A) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)(A)) (to
obtain financial institution customer records).
(3) Section 802 of the National Security Act of 1947 (50 U.S.C. 436) (to obtain financial
information, records, and consumer reports).
(4) Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) (to obtain certain financial
information and consumer reports).
(5) Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) (to obtain credit agency
consumer records for counterterrorism investigations).
28 U.S.C. 3511
(a) The recipient of a request for records, a report, or other information under section 2709(b)
of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A)
of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947 may, in
the United States district court for the district in which that person or entity does business or resides,
petition for an order modifying or setting aside the request. The court may modify or set aside the
request if compliance would be unreasonable, oppressive, or otherwise unlawful.
(b)(1) The recipient of a request for records, a report, or other information under section
2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act
of 1947, may petition any court described in subsection (a) for an order modifying or setting aside
a nondisclosure requirement imposed in connection with such a request.
(2) If the petition is filed within one year of the request for records, a report, or other
information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit
Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the
National Security Act of 1947, the court may modify or set aside such a nondisclosure requirement
if it finds that there is no reason to believe that disclosure may endanger the national security of the
United States, interfere with a criminal, counterterrorism, or counterintelligence investigation,
interfere with diplomatic relations, or endanger the life or physical safety of any person. If, at the time
of the petition, the Attorney General, Deputy Attorney General, an Assistant Attorney General, or the
Director of the Federal Bureau of Investigation, or in the case of a request by a department, agency,
or instrumentality of the Federal Government other than the Department of Justice, the head or
deputy head of such department, agency, or instrumentality, certifies that disclosure may endanger
the national security of the United States or interfere with diplomatic relations, such certification
shall be treated as conclusive unless the court finds that the certification was made in bad faith.
(3) If the petition is filed one year or more after the request for records, a report, or other
information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit
Reporting Act, section 1114 (a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the
National Security Act of 1947, the Attorney General, Deputy Attorney General, an Assistant Attorney
General, or 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, or in the case of a request by a department, agency,
or instrumentality of the Federal Government other than the Federal Bureau of Investigation, the
head or deputy head of such department, agency, or instrumentality, within ninety days of the filing
of the petition, shall either terminate the nondisclosure requirement or re-certify that disclosure may
result in a danger to the national security of the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or
danger to the life or physical safety of any person. In the event of re-certification, the court may
modify or set aside such a nondisclosure requirement if it finds that there is no reason to believe that
disclosure may endanger the national security of the United States, interfere with a criminal,
counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or
endanger the life or physical safety of any person. If the recertification that disclosure may endanger
the national security of the United States or interfere with diplomatic relations is made by the
Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the
Federal Bureau of Investigation, such certification shall be treated as conclusive unless the court
finds that the recertification was made in bad faith. If the court denies a petition for an order
modifying or setting aside a nondisclosure requirement under this paragraph, the recipient shall be
precluded for a period of one year from filing another petition to modify or set aside such
nondisclosure requirement.

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(c) In the case of a failure to comply with a request for records, a report, or other information
made to any person or entity under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the
Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section
802(a) of the National Security Act of 1947, the Attorney General may invoke the aid of any district
court of the United States within the jurisdiction in which the investigation is carried on or the person
or entity resides, carries on business, or may be found, to compel compliance with the request. The
court may issue an order requiring the person or entity to comply with the request. Any failure to obey
the order of the court may be punished by the court as contempt thereof. Any process under this
section may be served in any judicial district in which the person or entity may be found.
(d) In all proceedings under this section, subject to any right to an open hearing in a contempt
proceeding, the court must close any hearing to the extent necessary to prevent an unauthorized
disclosure of a request for records, a report, or other information made to any person or entity under
section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act
of 1947. Petitions, filings, records, orders, and subpoenas must also be kept under seal to the extent
and as long as necessary to prevent the unauthorized disclosure of a request for records, a report,
or other information made to any person or entity under section 2709(b) of this title, section 626(a)
or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial
Privacy Act, or section 802(a) of the National Security Act of 1947.
(e) In all proceedings under this section, the court shall, upon request of the government, review
ex parte and in camera any government submission or portions thereof, which may include classified
information.

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