National Security Letters in Foreign
Intelligence Investigations: A Glimpse of the
Legal Background and Recent Amendments

Charles Doyle
Senior Specialist in American Public Law
September 8, 2009
Congressional Research Service
7-5700
www.crs.gov
RS22406
CRS Report for Congress
P
repared for Members and Committees of Congress

National Security Letters in Foreign Intelligence Investigations

Summary
Five statutory provisions vest government agencies responsible for certain foreign intelligence
investigations (principally the Federal Bureau of Investigation [FBI]) with authority to issue
written commands comparable to administrative subpoenas. These National Security Letters
(NSLs) seek customer and consumer transaction information in national security investigations
from communications providers, financial institutions, and credit agencies.
The USA PATRIOT Act expanded the circumstances under which an NSL could be used.
Subsequent press accounts suggested that their use had become widespread. Two lower federal
courts found the uncertainties, practices, and policies associated with the use of NSL authority
contrary to the First Amendment right of freedom of speech. The USA PATRIOT Improvement
and Reauthorization Act, P.L. 109-177, and P.L. 109-178, amend the NSL statutes and related law
to address some of the concerns raised by critics and the courts. Following amendment, an
appellate court dismissed one of the earlier cases as moot and remanded the second for
reconsideration in light of the amendments. On remand, the lower federal court again held the
NSLs constitutionally suspect. The Court of Appeals, however, ruled that the amended statutes
could withstand constitutional scrutiny, if the government confines itself to a procedure which
requires (1) notice to the recipient of its option to object to a secrecy requirement; (2) upon
recipient objection, prompt judicial review at the government’s petition and burden; and (3)
meaningful judicial review without conclusive weight afforded a government certification of risk.
Using this procedure, the district upheld continuation of the Doe nondisclosure requirement
following an ex parte, in camera hearing and granted the plaintiff’s motion for an unclassified,
redacted summary of the government declaration on which the court’s decision was based.
A report of 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. A year later, a second IG report confirmed the findings of the first, and noted the
corrective measures taken in response.
This is an abridged version of CRS Report RL33320, National Security Letters in Foreign
Intelligence Investigations: Legal Background and Recent Amendments
, without the footnotes,
appendices, and most of the citations to authority found in the longer report.
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National Security Letters in Foreign Intelligence Investigations

Contents
Background .......................................................................................................................... 1
NSL Amendments in the 109th Congress................................................................................ 3
Inspector General’s Reports .................................................................................................. 3
NSLs in Court....................................................................................................................... 3
Comparison of NSL Attributes .............................................................................................. 4

Tables
Table 1. Comparison of NSL Attributes ....................................................................................... 5

Contacts
Author Contact Information ........................................................................................................ 6

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National Security Letters in Foreign Intelligence Investigations

Background
The ancestor of the first NSL letter provision is an exception to privacy protections afforded by
the Right to Financial Privacy Act (RFPA). Its history is not particularly instructive and consists
primarily of a determination that the exception in its original form should not be too broadly
construed. But the exception was just that, an exception. It was neither an affirmative grant of
authority to request information nor a command to financial institutions to provide information
when asked. It removed the restrictions on the release of customer information imposed on
financial institutions by the RFPA, but it left them free to decline to comply when asked to do so.
[I]n certain significant instances, financial institutions [had] declined to grant the FBI access
to financial records in response to requests under Section 1114(a). The FBI informed the
Committee that the problem occurs particularly in States which have State constitutional
privacy protection provisions or State banking privacy laws. In those States, financial
institutions decline to grant the FBI access because State law prohibits them from granting
such access and the RFPA, since it permits but does not mandate such access, does not
override State law. In such a situation, the concerned financial institutions which might
otherwise desire to grant the FBI access to a customer’s record will not do so, because State
law does not allow such cooperation, and cooperation might expose them to liability to the
customer whose records the FBI sought access. (H.Rept. 99-690, at 15-6 [1986].)
Congress responded with passage of the first NSL statute as an amendment to the RFPA,
affirmatively giving the FBI access to financial institution records in certain foreign intelligence
cases. At the same time, in the Electronic Communications Privacy Act, it afforded the FBI
comparable access to telephone company and other communications service provider customer
information. Together, the two NSL provisions afforded the FBI access to communications and
financial business records under limited circumstances—customer and customer transaction
information held by telephone carriers and banks pertaining to a foreign power or its agents
relevant to a foreign counterintelligence investigation. Both the communications provider section
and the RFPA section contained nondisclosure provisions and limitations on further
dissemination, except pursuant to guidelines promulgated by the Attorney General. Neither had
an express enforcement mechanism nor identified penalties for failure to comply with either the
NSL or the nondisclosure instruction.
In the mid-1990s, Congress added two more NSL provisions—one permits NSL use in
connection with the investigation of government employee leaks of classified information under
the National Security Act; the other grants the FBI access to credit agency records pursuant to the
Fair Credit Reporting Act, under much the same conditions as apply to the records of financial
institutions. The FBI asked for the Fair Credit Reporting Act amendment as a threshold
mechanism to enable it to make more effective use of its bank record access authority:
FBI’s right of access under the Right of Financial Privacy Act cannot be effectively used,
however, until the FBI discovers which financial institutions are being utilized by the subject
of a counterintelligence investigation. Consumer reports maintained by credit bureaus are a
ready source of such information, but, although such report[s] are readily available to the
private sector, they are not available to FBI counterintelligence investigators....
FBI has made a specific showing ... that the effort to identify financial institutions in order to
make use of FBI authority under the Right to Financial Privacy Act can not only be time-
consuming and resource-intensive, but can also require the use of investigative techniques—
such as physical and electronic surveillance, review of mail covers, and canvassing of all
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banks in an area—that would appear to be more intrusive than the review of credit reports.
(H.Rept. 104-427, at 36 [1996].)
The National Security Act NSL provision authorizes access to credit and financial institution
records of federal employees with security clearances who were required to give their consent as
a condition for clearance. Passed in the wake of the Ames espionage case, it is limited to
investigations of classified information leaks.
Both the Fair Credit Reporting Act section and the National Security Act section contain
dissemination restrictions, as well as safe harbor (immunity) and nondisclosure provisions.
Neither has an explicit penalty for improper disclosure of the request, but the Fair Credit
Reporting Act section expressly authorizes judicial enforcement.
The USA PATRIOT Act amended three of the four existing NSL statutes and added a fifth. In
each of the three NSL statutes available exclusively to the FBI—the Electronic Communications
Privacy Act section, the Right to Financial Privacy Act section, and the Fair Credit Reporting Act
section—section 505 of the USA PATRIOT Act:
• expanded FBI issuing authority beyond FBI headquarter officials to include the
heads of the FBI field offices (i.e., Special Agents in Charge [SACs]);
• eliminated the requirement that the record information sought pertain to a foreign
power or the agent of a foreign power;
• required instead that the NSL request be relevant to an investigation to protect
against international terrorism or foreign spying; and
• added the caveat that no such investigation of an American can be predicated
exclusively on First Amendment-protected activities.
The amendments allowed NSL authority to be employed more quickly (without the delays
associated with prior approval from FBI headquarters) and more widely (without requiring that
the information pertain to a foreign power or its agents).
Subsection 358(g) of the USA PATRIOT Act amended the Fair Credit Reporting Act to add a fifth
and final NSL section, and the provision had one particularly noteworthy feature: it was available
not merely to the FBI but to any government agency investigating or analyzing international
terrorism:
Notwithstanding section 1681b of this title or any other provision of this subchapter, a
consumer reporting agency shall furnish a consumer report of a consumer and all other
information in a consumer’s file to a government agency authorized to conduct
investigations of, or intelligence or counterintelligence activities or analysis related to,
international terrorism when presented with a written certification by such government
agency that such information is necessary for the agency’s conduct or such investigation,
activity or analysis.
Although the subsection’s legislative history treats it as a matter of first impression, Congress’s
obvious intent was to provide other agencies with the national security letter authority
comparable to that enjoyed by the FBI under the Fair Credit Reporting Act. The new section had
a nondisclosure and a safe harbor subsection, but no express means of judicial enforcement or
penalties for improper disclosure of a request under the section.
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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)—amended the NSL statutes. They provided for judicial enforcement of the letter requests
and for judicial review of both the requests and accompanying nondisclosure requirements. They
established specific penalties for failure to comply or to observe the nondisclosure requirements.
They made it clear that the nondisclosure requirements do not preclude a recipient from
consulting an attorney. They provided a mechanism to lift the nondisclosure requirement. Finally,
they expanded congressional oversight and called for an Inspector General’s audit of use of the
authority.
Inspector General’s Reports
The USA PATRIOT Improvement and Reauthorization Act 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, was
released in March 2008.
The initial report noted that FBI use of NSLs had increased dramatically, expanding from 8,500
requests in 2000 to 47,000 in 2005. 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.
During the three years under review, the percentage of NSLs used to investigate Americans
(“U.S. persons”) increased from 39% in 2003 to 53% in 2005. A substantial majority of the
requests involve records relating to telephone or e-mail communications. 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.
The second IG Report reviewed the FBI’s use of national security letter authority during calendar
year 2006 and the corrective measures taken following the issuance of the IG’s first report. The
second Report concluded that the FBI’s use of national security letters in 2006 continued the
upward trend previously identified; the percentage of NSL requests generated from investigations
of U.S. persons increased from 39% of all NSL requests in 2003 to 57% in 2006; the FBI and DoJ
are committed to correcting the problems identified in IG Report I and have made significant
progress; and it is too early to say whether the corrective measures will resolve the problems
previously identified.
NSLs in Court
Prior to amendment, two lower federal court cases had indicated that the NSLs and practices
surrounding their use were contrary to the requirements of the First Amendment. On appeal, one
was dismissed as moot and the other sent back for reconsideration in light of the amendments.
Following remand and amendment of the NSL statutes, the District Court for the Southern
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District of New York again concluded that the amended NSL secrecy requirements violated both
First Amendment free speech.
The Court of Appeals was similarly disposed, but concluded that the government could invoke
the secrecy and judicial review authority of the 18 U.S.C. 2709 and 18 U.S.C. 3511 in a limited,
but constitutionally permissible manner. It stated that:
If the Government uses the suggested reciprocal notice procedure as a means of initiating
judicial review, there appears to be no impediment to the Government’s including notice of a
recipient’s opportunity to contest the nondisclosure requirement in an NSL. If such notice is
given, time limits on the nondisclosure requirement pending judicial review, as reflected in
Freedman, would have to be applied to make the review procedure constitutional. We would
deem it to be within our judicial authority to conform subsection 2709(c) to First
Amendment requirements, by limiting the duration of the nondisclosure requirement, absent
a ruling favorable to the Government upon judicial review, to the 10-day period in which the
NSL recipient decides whether to contest the nondisclosure requirement, the 30-day period
in which the Government considers whether to seek judicial review, and a further period of
60 days in which a court must adjudicate the merits, unless special circumstances warrant
additional time. If the NSL recipient declines timely to precipitate Government-initiated
judicial review, the nondisclosure requirement would continue, subject to the recipient’s
existing opportunities for annual challenges to the nondisclosure requirement provided by
subsection 3511(b). If such an annual challenge is made, the standards and burden of proof
that we have specified for an initial challenge would apply, although the Government would
not be obliged to initiate judicial review.
Given the possibility of constitutional application, the court saw no reason to invalidate sections
2709(c) and 3511(b) in toto. The exclusive presumptions of section 3511 cannot survive, the
court declared, but the First Amendment finds no offense in the remainder of the two sections
except, the court observed, “to the extent that they fail to provide for Government-initiated
judicial review. The Government can respond to this partial invalidation ruling by using the
suggested reciprocal notice procedure.”
On remand under the procedure suggested by the Court of Appeals, the government submitted the
declaration of the senior FBI official concerning the continued need for secrecy concerning the
NSL. Following an ex parte, in camera hearing, the district court concluded the government had
met its burden, but granted the plaintiff’s motion for a unclassified, redacted summary of the FBI
declaration.
Comparison of NSL Attributes
The following table summarizes the differences among the five NSL sections: Section 1114(a)(5)
of Right to Financial Privacy Act (12 U.S.C. 3414); sections 626 and 627 of the Fair Credit
Reporting Act (15 U.S.C. 1681u, 1691v); section 2709 of the title 18 of the United States Code
(18 U.S.C. 2709); and section 802 of the National Security Act (50 U.S.C. 436).

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Table 1. Comparison of NSL Attributes
NSL Statute
18 U.S.C.
12 U.S.C.
15 U.S.C.
15 U.S.C.
50 U.S.C.
2709
3414
1681u
1681v
436
Addressee communications
financial
consumer credit
consumer credit
financial
providers
institutions
agencies
agencies
institutions,
consumer credit
agencies, travel
agencies
Certifying
senior FBI
senior FBI
senior FBI
supervisory
senior officials
officials
officials and
officials and
officials and
official of an
no lower than
SACs
SACs
SACs
agency
Ass’t Secretary
investigating,
or Ass’t
conducting
Director of
intelligence
agency w/
activities relating employees w/
to or analyzing
access to
int’l terrorism
classified
material
Information
identified
identified
identified
all information
all financial
covered
customer’s
customer
consumer’s
relating to an
information
name, address,
financial records
name, address,
identified
relating to
length of service,
former address,
consumer
consenting,
and billing info
place and former
identified
place of
employee
employment
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 or purposes to
int’l terrorism or activities, or
investigation,
clandestine
protect against
clandestine
analysis of int’l
counter-
intelligence
int’l terrorism or intelligence
terrorism
intelligence
activities
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 of
Gen. guidelines
Gen. guidelines
secure approval
provision
employee under
for intell.
investigation,
investigation, to
DOJ for law
military
enforcement or
investigators
intell. purposes,
when inform.
or fed. agency
relates to
when clearly
military 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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Author Contact Information

Charles Doyle

Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968




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