National Security Letters: Proposals in the
112th Congress
Charles Doyle
Senior Specialist in American Public Law
February 1, 2011
Congressional Research Service
7-5700
www.crs.gov
R41619
CRS Report for Congress
P
repared for Members and Committees of Congress
National Security Letters: Proposals in the 112th Congress
Summary
Three USA PATRIOT Act-related amendments to the Foreign Intelligence Surveillance Act
(FISA) expire on February 28, 2011. None of the expiring provisions deal with National Security
Letters (NSLs). The USA PATRIOT Act Sunset Extension Act of 2011 (S. 193), however, would
both extend the expiration of those provisions and amend existing NSL authority. S. 193
corresponds in large measure to legislation reported out of the Senate Judiciary Committee during
the last Congress (S. 1692 (111th Cong.)).
NSLs are roughly comparable to administrative subpoenas. Various intelligence agencies use
them to demand certain customer information from communications providers, financial
institutions, and consumer credit reporting agencies under the Right to Financial Privacy Act, the
Fair Credit Reporting Act, the National Security Act, and the Electronic Communications Privacy
Act.
The USA PATRIOT Act expanded NSL authority. Later reports of the Department of Justice’s
Inspector General indicated that (1) the FBI considered the expanded authority very useful; (2)
after expansion the number of NSL requests increased dramatically; (3) the number of requests
relating to Americans increased substantially; and (4) FBI use of NSL authority had sometimes
failed to comply with statutory, Attorney General, or FBI policies.
Originally, the NSL statutes authorized nondisclosure requirements prohibiting recipients from
disclosing receipt or the content of an NSL to anyone, ever. They now permit judicial review of
these secrecy provisions. As understood by the courts, recipients may request the issuing agency
to seek and justify to the court the continued binding effect of any secrecy requirement.
S. 193 would return NSL statutes, as of December 31, 2013, to their pre-USA PATRIOT Act
status. It would also codify existing law with respect to judicial review of NSL nondisclosure
orders and expand existing audit and reporting requirements.
This report reprints the text of the five NSL statutes as they now appear and as they appeared
prior to amendment by the USA PATRIOT Act (to which form they would be returned under S.
193).
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National Security Letters: Proposals in the 112th Congress
Contents
Introduction ................................................................................................................................ 1
Background ................................................................................................................................ 1
USA PATRIOT Act ............................................................................................................... 2
2006 Amendments ................................................................................................................ 3
IG Reports ............................................................................................................................ 4
The First IG Report ......................................................................................................... 4
Exigent Letters................................................................................................................ 7
The Second IG Report..................................................................................................... 8
The Third IG Report ....................................................................................................... 8
Secrecy, Judicial Review, and the Second Circuit .......................................................... 10
Judicial Review of NSLs............................................................................................... 10
Proposed Amendments........................................................................................................ 11
Sunset and Repeal ......................................................................................................... 11
Nondisclosure ............................................................................................................... 14
Minimization Requirements .......................................................................................... 15
Reports and Audits........................................................................................................ 17
Text of NSL Statutes on October 25, 2001 and Now (emphasis added) ................................ 18
12 U.S.C. 3414(a)(5) (on October 25, 2001).................................................................. 18
12 U.S.C. 3414(a)(5) (now)........................................................................................... 18
15 U.S.C. 1681u(a), (b)(on October 25, 2001) ............................................................... 19
15 U.S.C. 1681u(a), (b)(now) ........................................................................................ 20
18 U.S.C. 2709 (as of October 25, 2001) ....................................................................... 21
18 U.S.C. 2709 (now) ................................................................................................... 22
15 U.S.C. 1681v (as of October 25, 2001) ..................................................................... 23
15 U.S.C. 1681v (now) ................................................................................................. 23
50 U.S.C. 436 (as of October 25, 2001) ......................................................................... 24
50 U.S.C. 436 (now) ..................................................................................................... 25
Tables
Table 1. Profile of the Current NSL Statutes ................................................................................ 9
Contacts
Author Contact Information ...................................................................................................... 27
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National Security Letters: Proposals in the 112th Congress
Introduction
On February 28, 2011, three USA PATRIOT Act-related amendments to the Foreign Intelligence
Surveillance Act will expire.1 Bills to extend the amendments have been offered in both the
House and Senate. One of these, the USA PATRIOT Act Sunset Extension Act of 2011 (S. 193),
would also substantially change the law governing National Security Letters (NSLs). NSLs are
roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence
gathering purposes to telephone companies, Internet service providers, consumer credit reporting
agencies, banks, and other financial institutions, directing the recipients to turn over certain
customer records and similar information. The 111th Congress saw a number of proposals to
amend NSL authority.2 None were enacted, but S. 193, introduced early in the 112th Congress by
Senator Leahy, carries forward in large measure the provisions approved by the Senate Judiciary
Committee in the 111th.3
S. 193 would repeal one of NSL authorizing statutes, section 627 of the Fair Credit Reporting Act
(15 U.S.C. 1681v); return the others, as of December 31, 2013, to their pre-USA PATRIOT Act
form; and amend nondisclosure provisions as well as audit and reporting requirements.
Background
Prior to the USA PATRIOT Act, the NSL statutes were four. One, 18 U.S.C. 2709, obligated
communications providers to supply certain customer information upon the written request of the
Director of the Federal Bureau of Investigation (FBI) or a senior FBI headquarters official.4 When
customer identity, length of service, and toll records were sought, the letters had to certify (1) that
the information was relevant to a foreign counterintelligence investigation and (2) that specific
and articulable facts gave reason to believe the information pertained to a foreign power or its
agents.5 When only customer identity and length of service records (but not toll records) were
sought, the letters had to certify (1) again that the information was relevant to a foreign
counterintelligence investigation, but (2) that specific and articulable facts gave reason to believe
that the customer information pertained to use of the provider’s facilities to communicate with
foreign powers, their agents or those engaged in international terrorism or criminal clandestine
intelligence activities.6
In like manner a second statute, section 1114(a)(5) of the Right to Financial Privacy Act,
obligated financial institutions to provide the FBI with customers’ financial records upon written
certification of the FBI Director or his designee (1) that the records were sought for foreign
1 See generally CRS Report R40138, Amendments to the Foreign Intelligence Surveillance Act (FISA) Set to Expire
February 28, 2011, by Edward C. Liu.
2 See generally CRS Report R40887, National Security Letters: Proposed Amendments in the 111th Congress, by
Charles Doyle, from which this report borrows heavily.
3 See S. 1692 (111th Cong); S.Rept. 111-92 (2009). The text of S. 193 is available beginning at 157 Cong. Rec. S275
(daily ed. Jan. 26,2011).
4 18 U.S.C. 2709(a), (b) (2000 ed.).
5 18 U.S.C. 2709(b)(1) (2000 ed.).
6 18 U.S.C. 2709(b)(2) (2000 ed.).
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counterintelligence purposes and (2) that specific and articulable facts gave reason to believe that
the records were those of a foreign power or its agents.7
And so it was with a third, section 626 of the Fair Credit Report Act, which obligated consumer
credit reporting agencies to provide customer identification, and the names and addresses of
financial institutions at which a designated consumer maintained accounts.8 Here too, the
obligation was triggered by written certification of the FBI Director or his designee (1) that the
information was necessary for a foreign counterintelligence investigation, and (2) that specific
and articulable facts gave reason to believe that the consumer was either a foreign power, a
foreign official, or the agent of a foreign power and was engaged in international terrorism or
criminal clandestine intelligence activities.9
The fourth, section 802 of the National Security Act, was a bit different.10 It reached a wider
range of potential recipients at the demand of large group of federal officials, but for a more
limited purpose. It rested the obligation to provide consumer reports, together with financial
information and records, upon consumer reporting agencies, financial agencies, and financial
institutions, or holding companies.11 The requirement was triggered by the certification of senior
officials of law enforcement and intelligence agencies, but confined to information pertaining to
federal employees with access to classified information and being sought for clearance purposes
and inquiries into past or potential security leaks.12
USA PATRIOT Act
Section 505 of the USA PATRIOT Act altered the FBI’s NSL authority under section 2709, the
Right to Financial Privacy Act, and the Fair Credit Reporting Act in several ways:
• it expanded issuing authority to include the heads of FBI field offices (special
agents in charge (SACs));
• it eliminated the requirement of specific and articulable facts demonstrating a
nexus to a foreign power or its agents;
• it required instead that the information was sought for or relevant to various
national security investigations; and
• it directed that no NSL related investigation of a “U.S. person” (American citizen
or foreign resident alien) be predicated exclusively on First Amendment
protected activities.13
7 12 U.S.C. 3414(a)(5) (2000 ed,).
8 15 U.S.C. 1681u(a), (b) (2000 ed.).
9 Id.
10 50 U.S.C. 436 (2000 ed.).
11 Id.
12 Id.
13 Thus for example, section 626 of the Fair Credit Report Act, once stated in part that:
The Director or the Director’s designee may make such a certification only if [he or she] has
determined in writing that—(1) such information is necessary for the conduct of an authorized
foreign counterintelligence investigation; and (2) there are specific and articulable facts giving
reason to believe that the consumer—(A) is a foreign power ... or a person who is not United States
(continued...)
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• The National Security Act NSL section remained unchanged, but section 358(g)
of the USA PATRIOT Act added a new Fair Credit Reporting Act NSL section
627, 15 U.S.C. 1681v. The new section obligated consumer reporting agencies to
provide consumer information and reports to a federal agency “authorized to
conduct investigations of, or intelligence or counterintelligence activities or
analysis related to, international terrorism.”14 Senior federal agency officials were
empowered to issue the NSL with a certification that the information was
“necessary for the agency’s conduct or such investigation, activity, or analysis.”15
2006 Amendments
Several of the USA PATRIOT Act’s intelligence gathering provisions were temporary and
originally set to expire after five years.16 The NSL statutes were not among them, but Congress
amended the statutes in the USA PATRIOT Improvement and Reauthorization Act of 2005 and
the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 nonetheless.17 The
NSL statute amendments were driven both by sensitivity to an Administration desire for more
explicit enforcement authority18 and by judicial developments which had raised questions as to
the statutes’ constitutional vitality as then written.19 The statutes then came with open-ended
nondisclosure provisions which barred recipients from disclosing the fact or content of the
NSL—ever or to anyone. Yet, they featured neither a penalty provision should the confidential
requirement be breached nor in most cases an enforcement mechanism should an NSL obligation
be ignored (the original Fair Credit Report Act statute alone had an explicit judicial enforcement
component).
(...continued)
person . . and is an official of a foreign power; or (b) is an agent of a foreign power and is engaging
or has engaged in an act of international terrorism ... or clandestine intelligence activities that
involve or may involve a violation of criminal statutes of the United States, 15 U.S.C. 1681u(a)
(2000 ed.).
The USA PATRIOT Act redesignated section 626 as section 625 and the amended provision stated that
The Director or the Director’s designee in a position not lower that Deputy Assistant Director at
Bureau headquarters or Special Agent in Charge of a Bureau field office designated by the Director
may make such a certification only if [he or she] 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 as investigation of a United Stats person is not
conducted solely upon the basis of activities protected by the first amendment to the Constitution of
the Untied States, U.S.C. 1681u(a)(2000 ed. Supp.I).
14 15 U.S.C. 1681v(a)(2000 ed. Supp. I).
15 Id.
16 Sec. 224, P.L. 107-56, 115 Stat. 295 (2001).
17 P.L. 109-177, 120 Stat. 192 (2006); P.L. 109-178, 120 Stat. 278 (2006), respectively.
18 E.g., Anti-Terrorism Intelligence Tools Improvement Act of 2003: Hearing Before the Subcomm. on Crime,
Terrorism, and Homeland Security, 108th Cong., 2d Sess. 7-8 (2004)(prepared statement of U.S. Ass’t Att’y Gen.
Daniel J. Bryant).
19 Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 2004)(First and Fourth Amendment concerns); Doe v. Gonzales, 386
F.Supp.2d 66 (D. Conn. 2005)(First Amendment concerns).
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The amendments:
• created a judicial enforcement mechanism and a judicial review procedure for
both the requests and accompanying nondisclosure requirements;20
• established specific penalties for failure to comply with the nondisclosure
requirements;21
• made it clear that the nondisclosure requirements did not preclude a recipient
from consulting an attorney;22
• provided a process to ease the nondisclosure requirement;23
• expanded Congressional oversight;24 and
• called for Inspector General’s audits of use of NSL authority.25
IG Reports
The First IG Report
The Department of Justice Inspector General reports, one released in March of 2007, the second
in March of 2008, and the third in January of 2010, were less than totally favorable.26 The first
report noted that FBI use of NSLs had increased dramatically, expanding from 8,500 requests in
2000 to 47,000 in 2005, IG Report I at 120. 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
2005.27 A substantial majority of the requests involved records relating to telephone or e-mail
communications, Id.
The report and the subsequent report a year later provided a glimpse at how the individual NSL
statutes were used and why they were considered available. In case of the 18 U.S.C. 2709, the
Electronic Communications Privacy Act (ECPA) NSL statute, the reports explained that:
Through national security letters, an FBI field office obtained telephone toll billing records
and subscriber information about an investigative subject in a counterterrorism case. The
20 28 U.S.C. 3511.
21 28 U.S.C. 3511(c), 18 U.S.C. 1510(e).
22 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).
23 28 U.S.C. 3511(b).
24 P.L. 109-177, §118.
25 P.L. 109-177, §119.
26 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 I) (March 2007); A Review of the FBI’s Use of National Security Letters:
Assessment of Corrective Actions and Examination of NSL Usage in 2006 (IG Report II) (March 2008); A Review of
the Federal Bureau of Investigation’s Use of Exigent Letters and Other Informal Requests for Telephone Records (IG
Report III), all three available at http://www.usdoj.gov/oig/special/index.htm.
27 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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information obtained identified the various telephone numbers with which the subject had
frequent contact. Analysis of the telephone records enabled the FBI to identify a group of
individuals residing in the same vicinity as the subject. The FBI initiated investigations on
these individuals to determine if there was a terrorist cell operating in the city.28
Headquarters and field personnel told us that the principal objective of the most frequently
used type of NSL—ECPA NSLs seeking telephone toll billing records, electronic
communication transactional records, or subscriber information (telephone and e-mail)—is
to develop evidence to support applications for FISA orders.29
The Right to Financial Privacy Act (RFPA) NSL statute, 12 U.S.C. 3414(a)(5), also affords
authorities access a wide range of information (bank transaction records v. telephone transaction
records) as demonstrated by the instances where it proved useful:
The FBI conducted a multi-jurisdictional counterterrorism investigation of convenience store
owners in the United States who allegedly sent funds to known Hawaladars (persons who use
the Hawala money transfer system in lieu of or parallel to traditional banks) in the Middle
East. The funds were transferred to suspected Al Qaeda affiliates. The possible violations
committed by the subjects of these cases included money laundering, sale of untaxed
cigarettes, check cashing fraud, illegal sale of pseudoephedrine (the precursor ingredient
used to manufacture methamphetamine), unemployment insurance fraud, welfare fraud,
immigration fraud, income tax violations, and sale of counterfeit merchandise. 30
The FBI issued national security letters for the convenience store owners’ bank account
records. The records showed that two persons received millions of dollars from the subjects
and that another subject had forwarded large sums of money to one of these individuals. The
bank analysis identified sources and recipients of the money transfers and assisted in the
collection of information on targets of the investigation overseas.31
The Fair Credit Reporting Act NSL statutes, 15 U.S.C. 1681u (FCRAu) and 1681v (FCRAv) can
be even more illuminating, “The supervisor of a counterterrorism squad told us that the FCRA
NSLs enable the FBI to see ‘how their investigative subjects conduct their day-to-day activities,
how they get their money, and whether they are engaged in white collar crime that could be
relevant to their investigations.’”32
Overall, the report notes that the FBI used the information gleaned from NSLs for a variety of
purposes, “to determine if further investigation is warranted; to generate leads for other field
offices, Joint Terrorism Task Forces, or other federal agencies; and to corroborate information
developed from other investigative techniques.”33 Moreover, information supplied in response to
NSLs provides the grist of FBI analytical intelligence reports and various FBI databases.34
28 IG Report I at 49.
29 IG Report II at 65. The Foreign Intelligence Surveillance Act (FISA) authorizes the FBI to apply for court orders in
national security cases authorizing electronic surveillance, physical searches, the installation and use of pen registers
and trap and trace devices, and access to business records and other tangible property, 50 U.S.C. 1801-1862.
30 Critics might suggest that these offenses are “possible” in the operation of any convenience store.
31 IG Report I at 50.
32 Id. at 51.
33 Id. at 65.
34 Id.
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The report was somewhat critical, however, 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:
• a “significant number of NSL-related possible violations were not being
identified or reported” as required;
• the only FBI data collection system produced “inaccurate” results;
• 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;”
• the FBI’s Counterterrorism 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 did not retain signed copies of the NSLs it issued;
• the FBI had 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 considered NSL use
indispensable; and
• information generated by NSLs was fed into a number of FBI systems. IG Report
I at 121-24.
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Exigent Letters
Prior to enactment of the Electronic Communications Privacy Act (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.35 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.36 Satisfying Fourth Amendment requirements, however, does not necessarily satisfy
statutory prohibitions.
The ECPA prohibits communications service providers from supplying information concerning
customer records unless one of the statutory exceptions applies.37 There are specific exceptions
for disclosure upon receipt of a grand jury subpoena38 or an NSL.39 A service provider who
knowingly or intentionally violates the prohibition is subject to civil liability,40 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” by using “exigent
letters.”41 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). Moreover, the Justice Department’s Office of Legal Counsel
subsequently advised the FBI in a classified memorandum that “under certain circumstances the
ECPA does not prohibit electronic communications service providers from disclosing certain call
detail records to the FBI on a voluntary basis without legal process or a qualifying emergency
under Section 2702.”42
35 Smith v. Maryland, 442 U.S. 735, 745 (1979)
36 Richards v. Wisconsin, 520 U.S. 385, 391 (1997); Wilson v. Arkansas, 514 U.S. 927, 936 (1995).
37 18 U.S.C. 2702(c).
38 18 U.S.C. 2703(c)(2).
39 18 U.S.C. 2709(a).
40 18 U.S.C. 2707(a).
41 IG Report I at 90.
42 Report by the Office of the Inspector General of the Department of Justice on the Federal Bureau of Investigation’s
Use of Exigent Letters and Other Informal Requests for Telephone Records: Hearing Before the Subcomm. on the
Constitution, Civil Rights, and Civil Liberties of the House Comm. on the Judiciary, 111th Cong. 2d sess. 22 (2010)
(2010 Hearings) (statement of Department of Justice Inspector General Glenn Fine)(referring to a January, 2010 OLC
memorandum).
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The Second IG Report
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 ...
identified ... for the period covering 2003 through 2006;
• “the percentage of NSL requests generated from investigations of U.S. persons
continued to increase significantly, from approximately 39% of all NSL requests
issued in 2003 to approximately 57% of all NSL requests issued in 2006;”
• the FBI and DoJ are committed to correcting the problems identified in IG
Report I and “have made significant progress in addressing the need to improve
compliance in the FBI’s use of NSLs;” [and]
• “it [was] too early to definitively state whether the new systems and controls
developed by the FBI and the Department will eliminate fully the problems with
NSLs that we identified,” IG Report II at 8-9.
The Third IG Report
The third IG Report examined the FBI’s use of exigent letters and other informal means of
acquiring communication service provider’s customer records in lieu of relying on NSL authority
during the period from 2003 to 2007.43 The IG’s Office discovered that “the FBI’s use exigent
letters became so casual, routine, and unsupervised that employees of all three communications
service providers sometimes generated exigent letters for FBI personnel to sign and return to
them.”44
Some of the informality was apparently the product of proximity. In order to facilitate
cooperation, communications providers had assigned employees to FBI offices. In addition to a
relaxed exigent letter process, the on-site feature gave rise to a practice of sneak peeks, that is, of
providing the FBI with “a preview of the available information for a targeted phone number,
without documentation of any justification for the request.”45 “In fact, at times the service
providers’ employees simply invited FBI personnel to view the telephone records on their
computer screens. One senior FBI counterterrorism official described the culture of casual
requests for telephone records by observing, ‘It [was] like having the ATM in your living room.”46
Not surprisingly, the IG’s review “ ... found widespread use by the FBI of exigent letters and
other informal requests for telephone records. These other requests were made ... without first
providing legal process or even exigent letters. The FBI also obtained telephone records through
improper ‘sneak peeks,’ community of interest █████, and hot-number ████ Many of these
practices violated FBI guidelines, Department policy, and the ECPA statute. In addition, we found
43 IG Report III at 1.
44 2010 Hearings at 14 (statement of Department of Justice Inspector General Glenn Fine)
45 Id. at 15.
46 Id.
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that the FBI also made inaccurate statements to the FISA Court related to its use of exigent
letters.”47
Although critical of the FBI’s initial response and recommending further steps to prevent
reoccurrence, the IG’s Report concluded that “the FBI took appropriate action to stop the use of
exigent letters and to address the problems created by their use.”48
Table 1. Profile of the Current NSL Statutes
NSL statute
18 U.S.C. 2709
12 U.S.C. 3414
15 U.S.C. 1681u 15
U.S.C. 1681v
50 U.S.C. 436
Addressee communications financial
consumer credit
consumer credit
financial
providers
institutions
agencies
agencies
institutions,
consumer credit
agencies, travel
agencies
Certifying
senior FBI officials
senior FBI officials
senior FBI officials
supervisory official
senior officials no
officials
and SACs
and SACs
and SACs
of an agency
lower than Ass’t
investigating,
Secretary or Ass’t
conducting
Director of agency
intelligence
w/ employees w/
activities relating to
access to classified
or analyzing int’l
material
terrorism
Information
identified
identified
identified consumer’s all information
all financial
covered
customer’s name,
customer financial
name, address,
relating to an
information
address, length of
records
former address,
identified consumer relating to
service, and billing
place and former
consenting,
info
place of employment
identified employee
Standard/
relevant to an
sought for foreign
sought for an
necessary for the
necessary to
Purpose
investigation to
counter-
investigation to
agency’s
conduct a law
protect against int’l
intelligence
protect against int’l
investigation,
enforcement
terrorism or
purposes to
terrorism or
activities, or analysis investigation,
clandestine
protect against
clandestine
relating to int’l
counter-
intelligence
int’l terrorism or
intelligence activities
terrorism
intelligence inquiry
activities
clandestine
or security
intelligence
determination
activities
Dissemination
only per Att’y Gen.
only per Att’y
w/i FBI, to secure
no statutory
only to agency of
guidelines
Gen. guidelines
approval for intell.
provision
employee under
investigation, to
investigation, DoJ
military investigators
for law
when inform. relates
enforcement or
to military member
intell. purposes, or
fed. agency when
clearly relevant to
mission
Immunity/fees
no provisions
no provisions
fees; immunity for
immunity for good
reimbursement;
good faith
faith compliance
immunity for good
compliance with an
with an NSL
faith compliance
NSL
with an NSL
47 Id. at 288 (redaction in the original).
48 IG Report III at 289.
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Secrecy, Judicial Review, and the Second Circuit
The current secrecy and judicial review provisions applicable to NSLs must be read in light of the
Second Circuit’s John Doe, Inc. v. Mukasey decision, 549 F.3d 861 (2d Cir. 2008). Under the NSL
statutes, 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.49 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.50 In doing so, the
recipient must advise them of the secrecy requirements.51 Aside from its attorney the recipient
must also identify, at the requesting agency’s election, those to whom it has disclosed the
request.52
Judicial Review of NSLs
Under the statute, 18 U.S.C. 3511, a recipient may petition the court to modify or extinguish any
NSL secrecy requirement within a year of issuance.53 Thereafter, it may petition to have the veil of
secrecy lifted, although it may resubmit a rejected request only once a year.54 Section 3511
provides that the court may modify or set aside the restriction if it finds “no reason to believe that
disclosure may” endanger national security or personal safety or interfere with diplomatic
relations or a criminal, counterterrorism, or counterintelligence investigation.55 The section,
however, binds the court to the assertion of a senior executive branch official that such an
adverse consequence is possible.56
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. Under section
3511, 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.57 The
“unreasonable or oppressive” standard is used for grand jury and other subpoenas issued under
the Federal Rules of Criminal Procedure.58 The Rules afford protection against undue burdens and
protect privileged communications.59 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 Rules also impose a relevancy requirement, but in the
context of a grand jury investigation a motion to quash will be denied unless it can be shown that
49 E.g., 18 U.S.C. 2709(c)(1). The other NSL statutes have comparable provisions.
50 Id.
51 E.g., 12 U.S.C. 3414(a)(5)(D)(iii). The other NSL statutes have comparable provisions.
52 E.g,, 15 U.S.C. 1681u(d)(4). The other NSL statutes have comparable provisions.
53 18 U.S.C. 3511(b)(2). As explained below, the Second Circuit opinion requires that the provisions in italics here and
at the end of the paragraph be understood in the context of First Amendment demands.
54 18 U.S.C. 3511(b)(3).
55 18 U.S.C. 3511(b)(2), (3).
56 Id.
57 18 U.S.C. 3511(a).
58 F.R.Crim.P. 17(c)(2).
59 2 WRIGHT, FEDERAL PRACTICE AND PROCEDURE §275 (Crim. 3d ed. 2000).
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“there is no reasonable possibility that the category of materials the Government seeks will
produce information relevant” to the investigation.60 The authority to modify or set aside an 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. Section 3511 also vests the
court with authority to enforce the NSL against a recalcitrant recipient. Failure to comply with the
court’s order thereafter is punishable as contempt of court.61 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).62
The Second Circuit has concluded that the procedure can survive First Amendment scrutiny only
if it involves the following:
• notice to NSL recipients that they may contest any secrecy order;
• expeditious government petition for judicial review of a secrecy order upon
recipient request;
• government burden to establish the validity of its narrowly tailored secrecy order;
• no conclusive weight may be afforded governmental assertions; and
• recipients may apply or reapply annually for judicial review where the
government’s burden remains the same.63
On remand, the district upheld continuation of the nondisclosure order under the procedure
suggested by the Second Circuit.64
Proposed Amendments
Sunset and Repeal
Three provisions governing foreign intelligence investigations sunset on February 28, 2011. The
NSL provisions are not among them. None of the NSL statutes are scheduled to expire. S. 193
would change that. It would repeal section 627 effective December 31, 2013, and on that date
would return the others to their pre-USA PATRIOT Act form.65 It would establish a transition
provision under which the law prior to December 31, 2013, would continue to apply with respect
to investigations or offenses begun prior to that date.66
60 United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991).
61 18 U.S.C. 3511(c).
62 18 U.S.C. 1510(e), 3571, 3559.
63 John Doe, Inc. v. Mukasey, 549 F.3d 861, 883-84 (2d Cir. 2008).
64 Doe v. Holder, 640 F.Supp. 2d 517 (S.D.N.Y. 2009); see also Doe v. Holder, 665 F.Supp. 2d 426 (S.D.N.Y.
2009)(finding continued compliance with the nondisclosure order justified); Doe v. Holder, 703 F.Supp.2d 313
(S.D.N.Y. 2010)(permitting the disclosure of some related information).
65 S. 193, §2(c)(1). The text of the NSL statutes, now and in the form to which they would be returned, is appended.
66 S. 193, §2(c)(2)(“Notwithstanding paragraph (1), the provisions of law referred to in paragraph (1), as in effect on
December 30, 2013, shall continue to apply on and after December 31, 2013, with respect to any particular foreign
intelligence investigation or with respect to any particular offense or potential offense that began or occurred before
(continued...)
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The USA PATRIOT Act expanded existing authority under 18 U.S.C. 2709, the Right to Financial
Privacy Act, and the Fair Credit Reporting Act.67 It also created new NSL authority in the form of
section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v).68 It did not expand the reach of
the National Security Act NSL statute. A return to the state of the law prior to enactment of the
USA PATRIOT Act would have the effect of eliminating the amendments it made in the pre-
existing NSL statutes as well as any subsequent amendments, and of repealing section 627.
In general terms for the three pre-existing NSL statutes, the USA PATRIOT Act:
• expanded issuing authority to include the heads of FBI field offices (special
agents in charge (SACs));
• eliminated the requirement of specific and articulable facts demonstrating a
nexus to a foreign power or its agents;
• required instead that the information was sought for or relevant to various
national security investigations; and
• directed that no NSL related investigation of a “U.S. person” (American citizen
or foreign resident alien) be predicated exclusively on First Amendment
protected activities.69
This means that:
• NSLs are more readily available to FBI field agents at a lower level of
supervisory control;
• NSLs can be used to obtain information pertaining to individuals two, three, or
more steps removed from the foreign power or agent of a foreign power that is
the focus of the investigation; and
• NSL-related investigations may not be predicated solely on the basis of activities
protected by the First Amendment.
A return to the state of the law prior to the effective date of the USA PATRIOT Act would mean
that NSLs would need to be approved by the FBI Director or a senior FBI headquarters official,
and it would have to be based on specific and articulable facts giving reason to believe that the
information sought pertains to a foreign power or agent of a foreign power.70 A witness at an
earlier Congressional hearing indicated that the “specific and articulable” facts standard grew out
of the standards employed in counterintelligence investigations and did not always translate well
in a counterterrorism context:
My point is that the “specific and articulable facts” standard was particularly suited to the
counterintelligence operations of the era in which it was created. A FBI counterintelligence
investigation involved examining a linear connection between a foreign intelligence officer
(...continued)
December 31, 2013”).
67 P.L. 107-56, §505, 115 Stat. 365 (2001).
68 P.L. 107-56, §358(g), 115 Stat. 327 (2001).
69 18 U.S.C. 2709((b), 12 U.S.C. 3414(a)(5)(A), 15 U.S.C. 1681u(a).
70 18 U.S.C. 2709((b)(2000 ed.), 12 U.S.C. 3414(a)(5)(A)(2000 ed.), 15 U.S.C. 1681u(a)(2000 ed.).
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(about whom much was known) and his contacts (potential spies). The information known
about the intelligence officer was specific in nature, and could be readily used to meet the
NSL legal standards.... Unlike the traditional linear counterintelligence case, in which the
foreign agent tried to recruit the domestic spy using infrequent and highly secure forms of
communication, many counterterrorism cases involved complex networks generating a much
larger volume of communication and financial transactions. In counter-terrorism cases, the
starting point was often not a clearly identifiable agent of a foreign power (as in
counterintelligence); indeed, the relevant “foreign power” was itself an imperfectly
understood terrorist organization that might defy precise definition. As a consequence,
counter-terrorism investigators often had a far more difficult time meeting the “specific and
articulable facts” standard.71
The language precluding NSL-related investigations grounded exclusively on the exercise of First
Amendment rights would also have disappeared. It is at best unclear, however, that the First
Amendment unaided does not embody a comparable prohibition.
At the first sunset of USA PATRIOT Act provisions, Congress amended each of the NSL statutes
in the USA PATRIOT Improvement and Reauthorization Act and the USA PATRIOT Act
Additional Reauthorization Amendments Act.72 The amendments state the grounds upon which
the NSLs may be made subject to a secrecy requirement (gag order);73 advise recipients that the
order does not preclude disclosure to the recipient’s attorney or to those necessary for execution
of the request; and notify recipients of their right to judicial review of the order.74 They too would
disappear were the law carried back to its pre-USA PATRIOT Act state.
The impact might be less significant that would at first appear. By and large, 18 U.S.C. 3511
governs judicial review of NSL nondisclosure requirements. When implemented as required by
the Second Circuit’s decision in John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), and at
the election of the recipient, the government has the burden of persuading the court of the validity
of the gag order under the same standards as found in the expired portions of the NSL statutes.
Although each of the legislative proposals would amend section 3511, explicitly or implicitly,
they each reinforce rather than erode the recipient protections of section 3511 as discussed infra.
Section 627, the NSL statute created in the USA PATRIOT Act, is arguably the most sweeping of
the NSL statutes. It offers the most extensive array of information (all information pertaining to a
consumer held by a consumer credit reporting agency) to the widest range of requesters (any
federal agency “authorized to conduct investigations of, or intelligence or counterintelligence
activities or analysis relating to, international terrorism”).75 Its repeal might be seen to facilitate
71 National Security Letters: The Need for Greater Accountability and Oversight: Hearing Before the Senate Comm. on
the Judiciary, 110th Cong., 2d sess. (2008)(testimony of Michael J. Woods, former Chief of the FBI’s National Security
Law Unit), available on Oct. 23, 2009 at [ http://judiciary.senate.gov/pdf/08-04-23WoodsTestimony.pdf ].
72 P.L. 109-177, 120 Stat. 192 (2006), and P.L. 109-178, 120 Stat. 278 (2006), respectively.
73 Depending upon one’s perspective these provisions may be described as nondisclosure provisions, secrecy
provisions, or gag order provisions. The descriptions are used interchangeably without any intended connotations in
this report.
74 18 U.S.C. 2709(c), 12 U.S.C. 3414(a)(5)(D), 15 U.S.C. 1681u(d).
75 15 U.S.C. 1681v(a). Such agencies would presumably include at a minimum those agencies who are members of the
“intelligence community,” see e.g., 50 U.S.C. 401a(4)(“The term ‘intelligence community’ includes the following: (A)
The Office of the Director of National Intelligence. (B) The Central Intelligence Agency. (C) The National Security
Agency. (D) The Defense Intelligence Agency. (E) The National Geospatial-Intelligence Agency. (F) The National
Reconnaissance Office. (G) Other offices within the Department of Defense for the collection of specialized national
intelligence through reconnaissance programs. (H) The intelligence elements of the Army, the Navy, the Air Force, the
(continued...)
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oversight, since it would centralize authority to issue NSLs in the FBI (other than in the case of
employee security investigations under the National Security Act). Moreover, the Justice
Department IG reported that both the FBI and consumer reporting agencies had experienced
difficulty distinguishing between authority under 1681u and 1681v.76
In contrast, the National Security Act NSL statute, left unamended by the USA PATRIOT Act, is
arguably the least intrusive. It reaches only information pertaining to federal employees who have
consented to their disclosure.77
Nondisclosure
Each of the NSL statutes has a nondisclosure provision.78 They state that the issuing agency may
prohibit recipients from disclosing the request—to anyone other than their attorney and those
necessary to comply with the request, ever.79 In order to activate the authority, agency officials
must certify that disclosure may endanger national security, endanger individual safety, or may
interfere with diplomatic relations or with a criminal, counterintelligence, or counterterrorism
investigation.80
The statutes declare that a federal district court may modify or set aside an NSL secrecy
requirement on the petition of a recipient, if it concludes that there is no reason to believe that
disclosure might result in any such danger or interference.81 If the petition for review is filed more
than a year after issuance of the NSL, the agency must either terminate the gag order or recertify
the need for its continuation.82 They make no explicit provision for disclosure to the party to
whom the information pertains.
The Second Circuit in John Doe, Inc. v. Mukasey held that these provisions only survive First
Amendment scrutiny if the agency petitions for judicial review and convinces the court that the
agency proposed order is narrowly crafted to meet to the statutorily identified adverse
consequences of disclosure.83
S. 193 would modify the statutory provisions governing the issuance and judicial review of NSL
nondisclosure orders. It would codify a procedure comparable in many respects to that which the
(...continued)
Marine Corps, the Federal Bureau of Investigation, and the Department of Energy. (I) The Bureau of Intelligence and
Research of the Department of State. (J) The Office of Intelligence and Analysis of the Department of the Treasury. (K)
The elements of the Department of Homeland Security concerned with the analysis of intelligence information,
including the Office of Intelligence of the Coast Guard. (L) Such other elements of any other department or agency as
may be designated by the President, or designated jointly by the Director of National Intelligence and the head of the
department or agency concerned, as an element of the intelligence community”). Admittedly, section 1681v only
identifies those who may invoke NSL authority, not necessarily those who have or will exercise that authority.
76 IG Report I, at 80-1, 125; IG Report II, at 29-30.
77 50 U.S.C. 436(a)(3)(A).
78 12 U.S.C. 3414(a)(5)(D); 18 U.S.C. 2709(c); 15 U.S.C. 1681u(d); 15 U.S.C. 1681v(c); 50 U.S.C. 436(b).
79 Id.
80 Id.
81 18 U.S.C. 3511(b)(1), (2).
82 18 U.S.C. 3511(b)(1), (3).
83 549 F.3d 861, 883 (2d Cir. 2008).
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Second Circuit identified as constitutionally acceptable. The agency issuing the NSL would have
made the initial determination of whether to include a nondisclosure provision in the NSL and
that determination would be subject to judicial review.84 It would leave unchanged the concerns a
requesting official might rely upon in order to impose a nondisclosure order: reason to believe
disclosure may endanger national security or individual safety or interfere with diplomatic
relations or a criminal, counterterrorism, or counterintelligence investigation.85
The agency would have to notify the recipient of the right to judicial review and petition for
review within 30 days of a recipient’s request for judicial review.86 The agency’s application for
judicial approval or review would have to include a statement of facts giving reason to believe
that disclosure might resulted in one of the statutory list of adverse consequences—endanger
national security or individual safety or interfere with diplomatic relations or with a criminal,
counterterrorism, or counterintelligence investigation.87 Should the court feel the agency had met
its burden after giving agency certification “substantial weight,” it would be required to issue a
nondisclosure order.88
S. 193 would amend each of the NSL statutes to require agency certifying officials to place a
written statement in the agency’s records documenting the specific facts that support the belief
that the information sought in the NSL is relevant to a qualified investigation.89
Minimization Requirements
Minimization is one of the ways that S. 193 differs from the legislation approved by the Senate
Judiciary Committee in the last Congress. S. 193 has no provisions that address minimization.
The change is apparent a response to intervening Justice Department action.90 “Minimization,” in
this context, refers to limitations on what information is acquired; how it is acquired; how it is
maintained; who has access to it within the capturing agency and under what circumstances; to
whom and under what circumstances it is disclosed beyond the capturing agency; how long it is
preserved; and when and under what circumstances it is expunged. Minimization standards are
drawn with an eye to the purposes for which information is acquired; the authority under which it
is acquired; the legitimate interests which may be affected by its acquisition, use, or disclosure;
and the governmental interests served by its acquisition, maintenance, use, and disclosure.
Minimization standards ordinarily reinforce statutory and regulatory limitations that attend the
use of possibly invasive means of acquiring information. For example, the Foreign Intelligence
Surveillance Act (FISA) provides fairly rigorous statutory procedures that must be honored before
84 S. 193, 5; proposed 18 U.S.C. 2709(c)(1); 15 U.S.C. 1681u(d)(1); 15 U.S.C. 1681v(c)(1); 12 U.S.C. 3414(a)(5)(D);
50 U.S.C. 436(b)(1).
85 S. 193, §5; proposed 18 U.S.C. 2709(c)(1)(B); 15 U.S.C. 1681u(d)(1)(B); 15 U.S.C. 1681v(c)(1)(B); 12 U.S.C.
3414(a)(5)(D)(i)(II); 50 U.S.C. 436(b)(1)(B).
86 S. 193, §6(b); proposed 18 U.S.C. 3511(b)(1).
87 S. 193, §6(b); proposed 18 U.S.C. 3511(b)(2).
88 S. 193, §6(b); proposed 18 U.S.C. 3511(b)(3).
89 S. 193, §7; proposed 18 U.S.C. 2709(c); 15 U.S.C. 1681u(d); 15 U.S.C. 1681v(b)(2); 12 U.S.C. 3414(a)(5)(B); 50
U.S.C. 436(a)(4).
90 “[T]he section of the bill that previously required the Department of Justice to establish minimization procedures for
National Security Letters is redrafted to reflect [the] fact that the Department adopted such procedures in October
2010,” 157 Cong. Rec. S274 (daily ed. Jan. 26, 2011)(statement of Sen. Leahy).
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electronic surveillance or physical searches may be authorized in a national security context.91 It
also supplies statutory conditions under which information acquired using those techniques may
be used,92 and both judicial and legislative oversight procedures.93 As an additional safeguard, it
also calls for the creation and implementation of minimization procedures to protect private
information relating to Americans consistent with the U.S. foreign intelligence interests.94
Section 119(f) of the USA PATRIOT Improvement and Reauthorization Act directed the Attorney
General and the Director of National Intelligence to report to the Congressional intelligence and
judiciary committees on the feasibility of NSL minimization procedures “to ensure the protection
of the constitutional rights of Untied States persons.”95 The Inspector General’s reports noted the
need for minimization standards or their regulatory equivalent:
In our first NSL report, the OIG noted the proviso in the Attorney General’s NSI Guidelines
that national security investigations should use the “least intrusive collection techniques
feasible” to carry out the investigations. The OIG reported that we found no clear guidance
on how Special Agents should reconcile the Attorney General guidelines’ limitations with
the expansive authority provided in the NSL statutes. Our concerns over the lack of formal
guidance were magnified because of the volume of NSLs generated by the FBI each year and
because the information collected is retained for long periods in databases available to many
authorized law enforcement personnel.96
91 50 U.S.C. 1801-1829.
92 E.g., 50 U.S.C. 1806.
93 E.g., 50 U.S.C. 1805, 1808.
94 E.g., 50 U.S.C. 1802(a)(2). See 50 U.S.C. 1801(h)(“‘Minimization procedures’, with respect to electronic
surveillance, means—(1) specific procedures, which shall be adopted by the Attorney General, that are reasonably
designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention,
and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons
consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information; (2)
procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined
in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person,
without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information
or assess its importance; (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and
dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that
is to be retained or disseminated for law enforcement purposes; and (4) notwithstanding paragraphs (1), (2), and (3),
with respect to any electronic surveillance approved pursuant to section 1802(a) of this title, procedures that require
that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or
used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained
or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any
person”).
95 P.L. 109-177, 120 Stat. 220 (2006).
96 IG Report II, at 64; see also id. at 68 n.41 (“In general, information related to intelligence investigations is retained in
the FBI’s files (either in the paper case file or in the FBI’s electronic systems) for 30 years after a case is closed, and
information related to criminal investigations is retained for 20 years after a case is closed. After that time, the case
information is reviewed, and information that is identified for permanent retention is transferred to the National
Archives and Records Administration (NARA) for storage. Any cases not meeting the criteria for permanent retention
and transfer to the NARA are destroyed”); IG Report I, at 110 (“neither the Attorney General’s NSI Guidelines nor
internal FBI policies require the purging of information derived from NSLs in FBI databases, regardless of the outcome
of the investigation. Thus, once information is obtained in response to a national security letter, it is indefinitely
retained and retrievable by the many authorized personnel who have access to various FBI databases”).
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The Justice Department convened a working group to study and make recommendations
concerning possible NSL minimization standards in response to its statutory obligation and the
Inspector General’s initial report.97
Attorney General Holder reported in a letter dated December 9, 2010, to Senator Leahy as Chair
of the Senate Judiciary Committee Chairman, that the Attorney General had “approved
Procedures for the Collection, Use and Storage of Information Derived from National Security
Letters on October 1, 2010 ... ” and that, “[t]he FBI’s current practice is consistent with the
procedures and the FBI is working on formal policy to implement them. In addition DOJ and
ODNI [Office of the Director of National Intelligence] will shortly complete work on a joint
report to Congress on NSL ‘minimization’ as required by the PATRIOT Reauthorization Act of
2005.”98
Reports and Audits
Some of the NSL statutes provide for periodic reports to various Congressional committees.99 In
addition, the USA PATRIOT Improvement and Reauthorization Act instructed the Attorney
General to prepare, in unclassified form, an annual report to Congress on the number of NSLs
issued in the previous year.100 The same legislation directed the Inspector General of the
Department of Justice to audit and report on the use of NSL authority for calendar years 2002
through 2006.101 S. 193 expands on each of these requirements.102
Existing law requires a public report of the number of times the Justice Department has used NSL
requests for information concerning Americans.103 S. 193 would demand twice yearly reports to
include the number of requests sought for information on those who not the subject of
investigations.104 It would also call for audits by the Justice Department’s Inspector General for
the years 2007, 2008, and 2008, comparable to those which the IG conducted earlier.105
97 IG Report II, at 64.
98 Letter from Attorney General Eric H. Holder, Jr. to Senate Judiciary Committee Chairman Patrick J. Leahy (Dec. 9,
2010), available at http://judiciary.senate.gov/resources/documents/111Documents.cfm.
99 18 U.S.C. 2709(e); 15 U.S.C. 1681u(h); 15 U.S.C. 1681v(f).
100 P.L. 109-177, §118, 120 Stat. 217 (2006), 18 U.S.C. 3511 note.
101 P.L. 109-177, §119, 120 Stat. 219 (2006).
102 S. 193, §8, amending, P.L. 109-177, §118(c), 18 U.S.C. 3511 note; and S. 193, §10 amending, P.L. 109-177, §119,
120 Stat. 200 (2006).
103 P.L. 109-177, §118(c), 18 U.S.C. 3511 note.
104 S. 193, §8(a).
105 S. 193, §10(b).
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Text of NSL Statutes on October 25, 2001 and Now (emphasis
added)
12 U.S.C. 3414(a)(5) (on October 25, 2001)
* * *
(a) . . . .
(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) certifies in writing to the financial institution that such records are sought for
foreign counter intelligence purposes and that there are specific and articulable facts giving
reason to believe that the customer or entity whose records are sought is a foreign power or the
agents of a foreign power as defined in section 1801 of title 50.
(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.
(C) On a semiannual basis the Attorney General shall fully inform the Permanent Select
Committee on Intelligence of the House of Representatives and the Select Committee on
Intelligence of the Senate 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.
12 U.S.C. 3414(a)(5) (now)
* * *
(a) ...
(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 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.
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(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) Prohibition of certain disclosure.—
(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, 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).
15 U.S.C. 1681u(a), (b)(on October 25, 2001)
(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, 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—
(1)such information is necessary for the conduct of an authorized foreign counterintelligence
investigation; and
(2) there are specific and articulable facts giving reason to believe that the consumer—
(A) is a foreign power (as defined in section 1801 of title 50) or a person who is not a
United States person (as defined in such section 1801 of title 50) and is an official of a
foreign power; or
(B) is an agent of a foreign power and is engaging or has engaged in an act of
international terrorism (as that term is defined in section 1801(c) of title 50) or
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clandestine intelligence activities that involve or may involve a violation of criminal
statutes 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, 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—
(1) such information is necessary to the conduct of an authorized counterintelligence
investigation; and
(2) there is information giving reason to believe that the consumer has been, or is about to
be, in contact with a foreign power or an agent of a foreign power (as defined in section 1801
of title 50).
* * *
15 U.S.C. 1681u(a), (b)(now)
(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.
* * *
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18 U.S.C. 2709 (as of October 25, 2001)
(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, 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 in a position not lower than Deputy Assistant
Director) certifies in writing to the wire or electronic communication service provider to which
the request is made that—
(A) the name, address, length of service, and toll billing records sought are relevant to an
authorized investigation to foreign counterintelligence investigation; and
(B) there are specific and facts giving reason to believe that the person or entity to whom the
information sought pertains is a foreign power or an agent of a foreign power as defined in
section 101 of the Foreign intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and
(2) request the name, address, and length of service of a person or entity if the Director (or his
designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or
electronic communication service provider to which the request is made that—
(A) the information sought is relevant to an authorized foreign counterintelligence
investigation; and
(B) There are specific and articulable facts giving reason to believe that communication
facilities registered in the name of the person or entity have been used, through the services of
such provider, in communications with—
(i) an individual who is engaging or has engaged in international terrorism as defined in
section 101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence
activities that involve or may involve a violation of the criminal statutes of the United
States; or
(ii)a foreign power or agent of a foreign power under circumstances giving reason to
believe that the communication concerned international terrorism as defined in section
101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence activities
that involve or may involve a violation of the criminal statutes 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.
(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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18 U.S.C. 2709 (now)
(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.—
(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, 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
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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.
(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 (as of October 25, 2001)
NONE. This section was created by the USA PATRIOT Act, effective October 26, 2001.
15 U.S.C. 1681v (now)
(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) of this section 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
(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) of this section.
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(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, 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) of this section.
(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 government 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 Committee
on Banking, Housing, and Urban Affairs, and the Select Committee on Intelligence of the Senate
concerning all requests made pursuant to subsection (a) 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.
50 U.S.C. 436 (as of October 25, 2001)
(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—
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(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);
(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 that such entity has received or
satisfied a request made by an authorized investigative agency under this section.
* * *
50 U.S.C. 436 (now)
(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.
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(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);
(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) Prohibition of certain disclosure
(1) If an authorized investigative agency described in subsection (a) of this section 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
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was made prior to the request, 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) of this
section.
* * *
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
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