National Security Letters in
Foreign Intelligence Investigations:
Legal Background
Charles Doyle
Senior Specialist in American Public Law
January 3, 2014
Congressional Research Service
7-5700
www.crs.gov
RL33320
National Security Letters in Foreign Intel igence Investigations: Legal Background
Summary
Five federal statutes authorize intelligence officials to request certain business record information
in connection with national security investigations. The authority to issue these national security
letters (NSLs) is comparable to the authority to issue administrative subpoenas. The USA
PATRIOT Act (P.L. 107-56) expanded the authority under four of the NSL statutes and created the
fifth. Thereafter, the authority has been reported to have been widely used. Prospects of its
continued use dimmed, however, after two lower federal courts held that the lack of judicial
review and the absolute confidentiality requirements in one of the statutes rendered it
constitutionally suspect.
A report by the Department of Justice’s Inspector General (IG) found that in its pre-amendment
use of expanded USA PATRIOT Act authority the FBI had “used NSLs in violation of applicable
NSL statutes, Attorney General Guidelines, and internal FBI policies,” but that no criminal laws
had been broken. A year later, a second IG report confirmed the findings of the first, and noted the
corrective measures taken in response. A third IG report, critical of the FBI’s use of exigent letters
and informal NSL alternatives, noted that the practice had been stopped and related problems
addressed.
The USA PATRIOT Improvement and Reauthorization Act (P.L. 109-177, and its companion, P.L.
109-178) amended the five NSL sections to expressly provide for judicial review of both the
NSLs and the confidentiality requirements that attend them. The sections have also been made
explicitly judicially enforceable and sanctions recognized for failure to comply with an NSL
request or to breach NSL confidentiality requirements with the intent to obstruct justice. The use
of the authority has been made subject to greater congressional oversight. Following amendment,
a federal district court found the amended procedure contrary to the demands of the First
Amendment. The U.S. Court of Appeals for the Second Circuit, however, ruled that the amended
statutes could withstand constitutional scrutiny, if the government confined itself to a procedure
which requires (1) notice to the recipient of its option to object to a secrecy requirement; (2) upon
recipient objection, prompt judicial review at the government’s petition and burden; and (3)
meaningful judicial review without conclusive weight afforded a government certification of risk.
Using this procedure, the district court upheld continuation of the Doe nondisclosure requirement
following an ex parte, in camera hearing and granted the plaintiff’s motion for an unclassified,
redacted summary of the government declaration on which the court’s decision was based. More
recently, a district court in the Ninth Circuit agreed the amended nondisclosure and judicial
review provisions were constitutionally defective, but could not agree to the Second Circuit’s
narrowing construction or that the NSL statute could be saved by severing the deficient disclosure
provisions. The district court stayed its order enjoining issuance of further NSLs or enforcement
of any accompanying nondisclosure provisions, however, pending appeal to the Ninth Circuit.
The President’s Review Group on Intelligence and Communications Technologies recommended
several NSL statutory adjustments designed to eliminate differences between NSLs and Section
215 orders (under P.L. 107-56), including requiring pre-issuance judicial approval of NSLs.
The text of the five provisions has been appended. This report is available abridged—without
footnotes, appendixes, and most of the citations to authority—as CRS Report RS22406, National
Security Letters in Foreign Intelligence Investigations: A Glimpse at the Legal Background, by
Charles Doyle.
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National Security Letters in Foreign Intel igence Investigations: Legal Background
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National Security Letters in Foreign Intel igence Investigations: Legal Background
Contents
Introduction ...................................................................................................................................... 1
Background ...................................................................................................................................... 2
Pre-amendment Judicial Action ................................................................................................. 7
NSL Amendments in the 109th Congress ................................................................................... 7
Post-Amendment NSL Attributes .................................................................................................... 8
Addressees and Certifying Officials .......................................................................................... 8
Purpose, Standards, Information Covered ................................................................................. 8
Confidentiality ........................................................................................................................... 9
Judicial Review and Enforcement ........................................................................................... 10
Dissemination .......................................................................................................................... 11
Liability, Fees and Oversight ................................................................................................... 11
Inspector General’s Reports ........................................................................................................... 13
The First IG Report ................................................................................................................. 13
Exigent Letters .................................................................................................................. 15
The Second IG Report ............................................................................................................. 16
The Third IG Report ................................................................................................................ 16
Post-Amendment Judicial Action .................................................................................................. 17
Recommendations of the President’s Review Group ..................................................................... 21
Appendixes .................................................................................................................................... 24
12 U.S.C. 3414 (text) ............................................................................................................... 24
18 U.S.C. 2709 (text) ............................................................................................................... 26
15 U.S.C. 1681u (text) ............................................................................................................. 28
15 U.S.C. 1681v (text) ............................................................................................................. 31
Section 802 of the National Security Act (50 U.S.C. 3162) (text) .......................................... 32
18 U.S.C. 1510 (text) ............................................................................................................... 34
P.L. 109-177, Section 118 (text) .............................................................................................. 34
P.L. 109-177, Section 119 (text) .............................................................................................. 35
18 U.S.C. 3511 (text) ............................................................................................................... 37
Tables
Table 1. Profile of the Current NSL Statutes ................................................................................. 12
Contacts
Author Contact Information........................................................................................................... 39
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National Security Letters in Foreign Intel igence Investigations: Legal Background
Introduction
Five statutory provisions vest government agencies responsible for certain foreign intelligence
investigations (principally the Federal Bureau of Investigation (FBI)) with authority to issue
written commands comparable to administrative subpoenas.1 A National Security Letter (NSL)
seeks customer and consumer transaction information in national security investigations from
communications providers, financial institutions and credit agencies. Section 505 of the USA
PATRIOT Act expanded the circumstances under which an NSL could be used.2 Subsequent press
accounts suggested that their use had become widespread.3 Two lower federal courts, however,
found the uncertainties, practices, and policies associated with the use of NSL authority contrary
to the First Amendment right of freedom of speech, and thus brought into question the extent to
which NSL authority could be used in the future.4 The USA PATRIOT Improvement and
Reauthorization Act5 and P.L. 109-178 (S. 2271) amended the NSL statutes and related law to
address some of the concerns raised by critics and the courts.6 As a consequence, the Second
Circuit dismissed one of the lower court cases as moot and remanded the other for
reconsideration in light of the amendments.7 On reconsideration, the district court opinion
continued to be troubled by the First Amendment implications of the nondisclosure features of 18
U.S.C. 2709, even as amended.8 The appellate court was comparably concerned, but concluded
that the government might invoke the authority of 18 U.S.C. 2709 and 18 U.S.C. 3511 in a
limited but constitutionally acceptable manner.9 On remand under the procedure envisioned by
the Second Circuit panel, the district court found a continuing need to maintain the original
secrecy order, but ordered the government to provide the plaintiffs with an unclassified, redacted
1 18 U.S.C. 2709; 12 U.S.C. 3414; 15 U.S.C. 1681v; 15 U.S.C. 1681u; 50 U.S.C. 3162 (prior to recent reclassification,
this section was found in 50 U.S.C. 436); the text of each is appended.
Federal administrative subpoena authority is discussed in U.S. Department of Justice, Office of Legal Policy, Report to
Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities [2002],
available on March 6, 2006 at http://www.usdoj.gov/olp/intro.pdf; see also CRS Report RL33321, Administrative
Subpoenas in Criminal Investigations: A Brief Legal Analysis, abridged as CRS Report RS22407, Administrative
Subpoenas in Criminal Investigations: A Sketch, both by Charles Doyle.
2 P.L. 1-7-56, 115 Stat. 365 (2001).
3 From calendar year 2003 through 2005, the FBI issued approximately 44,000 NSLs containing 143,074 requests. In
one investigation, it issued 9 NSLs requesting information relating to 11,000 telephone numbers. U.S. Department of
Justice, Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security
Letters (IG Report I) at xviii-xix (March 2007), available on Sept. 3, 2009 at http://www.usdoj.gov/oig/special/s0703b/
final.pdf. It issued another 49, 425 requests in 2006 for a total 192,499 requests over the four year period from 2003
through 2006, 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 II) at 9 (March 2008), available on Sept. 3, 2009 at
http://www.usdoj.gov/oig/special/s0803b/final.pdf.
4 Doe v. Ashcroft, 334 F.Supp.2d 471, 526-27 (S.D.N.Y. 2004)(“the Court concludes that the compulsory, secret, and
unreviewable production of information required by the FBI’s application of 18 U.S.C. 2709 violates the Fourth
Amendment and that the non-disclosure provision of 18 U.S.C. 2709(c) violates the First Amendment”); Doe v.
Gonzales, 386 F.Supp.2d 66, 78-82 (D.Conn. 2005)(the court did not reach the Fourth Amendment issue). Justice
Ginsburg declined to lift the stay of Connecticut court’s injunction pending appeal in the Second Circuit, 126 S.Ct. 1
(2005).
5 P.L. 109-177 (H.R. 3199), 120 Stat. 192 (2006).
6 The appended statutes note the amendments and additions.
7 Doe v. Gonzalez, 449 F.3d 415 (2d Cir. 2006).
8 Doe v. Gonzalez, 500 F.Supp.2d 379 (S.D.N.Y. 2007).
9 John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008).
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National Security Letters in Foreign Intel igence Investigations: Legal Background
summary of the declaration upon which the court’s decision was based.10 The result was
somewhat different in the Ninth Circuit. There, too, a district court found that Section 2709(c)’s
nondisclosure requirements violated the First Amendment and that Section 3511(b)(2)’s and (3)’s
judicial review provisions violated the First Amendment and separation of powers principles.11 It
could not agree to the narrow construction favored by the Second Circuit, however, given the
clear statutory language and equally clear congressional intent to afford the government broad,
review-proof authority to issue NSL secrecy orders.12 Nevertheless, pending appeal to the Ninth
Circuit Court of Appeals, the district court stayed its order barring issuance of further NSLs and
enforcement of any related nondisclosure requirements.13
Background
The ancestor of the first NSL letter provision is a statutory exception to privacy protections
afforded by the Right to Financial Privacy Act (RFPA).14 Its history is not particularly instructive
and consists primarily of a determination that the exception in its original form should not be too
broadly construed.15 But the exception was just that, an exception. It was neither an affirmative
grant of authority to request information nor a command to financial institutions to provided
information when asked. It removed the restrictions on the release of customer information
imposed on financial institutions by the Right to Financial Privacy Act, but it left them free to
decline to comply when asked to do so.
[I]n certain significant instances, financial institutions [had] declined to grant the FBI access
to financial records in response to requests under [S]ection 1114(a). The FBI informed the
Committee that the problem occurs particularly in States which have State constitutional
privacy protection provisions or State banking privacy laws. In those States, financial
institutions decline to grant the FBI access because State law prohibits them from granting
such access and the RFPA, since it permits but does not mandate such access, does not
override State law. In such a situation, the concerned financial institutions which might
otherwise desire to grant the FBI access to a customer’s record will not do so, because State
10 Doe v. Holder, 640 F.Supp.2d 517, 518-19 (S.D.N.Y. 2009); see also, Doe v. Holder, 665 F.Supp.2d 426, 433-34
(S.D.N.Y. 2009)(holding justified continued compliance with the nondisclosure requirement); Doe v. Holder,, 703
F.Supp.2d 313, 316-18 (S.D.N.Y. 2010)(lifting the nondisclosure requirements with respect to “(1) material within the
scope of information that the NSL statute identifies as permissible for the FBI to obtain through the use of NSLs, and
(2) material that the FBI has publicly acknowledged it has previously requested by means of NSLs,” but continuing in
effect the ban on disclosure of the remainder of the information sought).
11 In re National Security Letter, 930 F.Supp.2d 1064, 1081 (N.D.Cal. 2013).
12 Id. at 1080.
13 Id. at 1081.
14 Section 1114, P.L. 95-630, 92 Stat. 3706 (1978); now codified at 12 U.S.C. 3414(a)(1) (A), (B): “Nothing in this
chapter (except [S]ections 3415, 3417, 3418, and 3421 of this title) shall apply to the production and disclosure of
financial records pursuant to requests from—(A) a Government authority authorized to conduct foreign counter- or
foreign positive- intelligence activities for purposes of conducting such activities; [or] (B) the Secret Service for the
purpose of conducting its protective functions (18 U.S.C. 3056; 3 U.S.C. 202, P.L.90-331, as amended).”
15 “Section 1114 provides for special procedures in the case of foreign intelligence … though the committee believes
that some privacy protections may well be necessary for financial records sought during a foreign intelligence
investigation, there are special problems in this area which make consideration of such protections in other
congressional forums more appropriate. Nevertheless, the committee intends that this exemption be used only for
legitimate foreign intelligence investigations: investigations proceeding only under the rubric of “national security” do
not qualify. Rather this exception is available only to those U.S. Government officials specifically authorized to
investigate the intelligence operations of foreign governments,” H.Rept. 95-1383, at 55 (1978).
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National Security Letters in Foreign Intel igence Investigations: Legal Background
law does not allow such cooperation, and cooperation might expose them to liability to the
customer whose records the FBI sought access. H.Rept. 99-690, at 15-6 (1986).
Congress responded with passage of the first NSL statute as an amendment to the Right to
Financial Privacy Act, affirmatively giving the FBI access to financial institution records in
certain foreign intelligence cases.16 At the same time in the Electronic Communications Privacy
Act, it afforded the FBI comparable access to the telephone company and other communications
service provider customer information.17 Together the two NSL provisions afforded the FBI
access to communications and financial business records under limited circumstances—customer
and customer transaction information held by telephone carriers and banks pertaining to a foreign
power or its agents relevant to a foreign counter-intelligence investigation.18
Both the communications provider section and the Right to Financial Privacy Act section
contained nondisclosure provisions19 and limitations on further dissemination except pursuant of
guidelines promulgated by the Attorney General.20 Neither had an express enforcement
mechanism nor identified penalties for failure to comply with either the NSL or the nondisclosure
instruction.
In the mid-1990s, Congress added two more NSL provisions—one permits NSL use in
connection with the investigation of government employee leaks of classified information under
the National Security Act;21 and the other grants the FBI access to credit agency records pursuant
to the Fair Credit Reporting Act, under much the same conditions as apply to the records of
financial institutions.22 The FBI asked for the Fair Credit Reporting Act amendment as a threshold
mechanism to enable it to make more effective use of its bank record access authority:
FBI’s right of access under the Right of Financial Privacy Act cannot be effectively used,
however, until the FBI discovers which financial institutions are being utilized by the subject
of a counterintelligence investigation. Consumer reports maintained by credit bureaus are a
ready source of such information, but, although such report[s] are readily available to the
private sector, they are not available to FBI counterintelligence investigators....
FBI has made a specific showing ... that the effort to identify financial institutions in order to
make use of FBI authority under the Right to Financial Privacy Act can not only be time-
consuming and resource-intensive, but can also require the use of investigative techniques—
such as physical and electronic surveillance, review of mail covers, and canvassing of all
banks in an area—that would appear to be more intrusive than the review of credit reports.
H.Rept. 104-427, at 36 (1996).23
16 P.L. 99-569, §404, 100 Stat. 3197 (1986); 12 U.S.C. 3414(a)(5)(A)(1988 ed.).
17 18 U.S.C. 2709 (1988 ed.); see also, S.Rept. 99-541, at 43 (1986)(“This provision is substantially the same as
language recently reported by the Intelligence Committee as [S]ection 503 of the Intelligence Authorization Act for
Fiscal Year 1987, [P.L. 99-569]”).
18 18 U.S.C. 2709 (1988 ed.); 12 U.S.C. 3414(a)(5)(A)(1988 ed.).
19 18 U.S.C. 2709(c)(“No wire or electronic communication service provider, or officer, employee, or agent thereof,
shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or
records under this section”); see also, 12 U.S.C. 3414(a)(5)(D). Note that unlike Section 3486, the prohibition is neither
temporary nor judicially supervised.
20 18 U.S.C. 2709(d)(1988 ed.); 12 U.S.C. 3414(a)(5)(B)(1988 ed.).
21 50 U.S.C. 3162.
22 15 U.S.C. 1681u.
23 The Senate Intelligence Committee had made similar observations in a prior Congress when considering legislation
(continued...)
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National Security Letters in Foreign Intel igence Investigations: Legal Background
The National Security Act NSL provision authorized access to credit and financial institution
records of federal employees with security clearances who were required to give their consent as
a condition for clearance.24 Passed in the wake of the Ames espionage case, it is limited to
investigations of classified information leaks. As noted at the time, “The Committee believes
section 801 will serve as a deterrent to espionage for financial gain without burdening
investigative agencies with unproductive recordkeeping or subjecting employees to new reporting
requirements.... The Committee recognizes that consumer credit records have been notoriously
inaccurate, and expects that information obtained pursuant to this [S]ection alone will not be the
basis of an action or decision adverse to the interest of the employee involved.”25
Both the Fair Credit Reporting Act section and the National Security Act section contain
dissemination restrictions;26 as well as safe harbor (immunity),27 and nondisclosure provisions.28
Neither has an explicit penalty for improper disclosure of the request, but the Fair Credit
Reporting Act section expressly authorizes judicial enforcement.29
The USA PATRIOT Act amended three of the four existing NSL statutes and added a fifth. In
each of the three NSL statutes available exclusively to the FBI—the Electronic Communications
Privacy Act section (18 U.S.C. 2709), the Right to Financial Privacy Act section (12 U.S.C.
3414(a)(5)), and the Fair Credit Reporting Act section (15 U.S.C. 1681u) (§505 of the USA
PATRIOT Act)
• expanded FBI issuing authority beyond FBI headquarter officials to include the
heads of the FBI field offices (i.e., Special Agents in Charge (SAC));
• eliminated the requirement that the record information sought pertain to a foreign
power or the agent of a foreign power;
• required instead that the NSL request be relevant to an investigation to protect
against international terrorism or foreign spying;
• added the caveat that no such investigation of an American can be predicated
exclusively of First Amendment protected activities.30
The amendments allowed NSL authority to be employed more quickly (without the delays
associated with prior approval from FBI headquarters) and more widely (without requiring that
the information pertain to a foreign power or its agents).31
(...continued)
that ultimately became the National Security Amendment, H.Rept. 103-256, at 17-22 (1994).
24 50 U.S.C. 456 (1994 ed.).
25 H.Rep.No.103-541 at 53-4 (1994).
26 15 U.S.C. 1681u(f), 50 U.S.C. 3162(e).
27 15 U.S.C. 1681u(k), 50 U.S.C. 3162(c).
28 15 U.S.C. 1681u(d); 50 U.S.C. 3162(b).
29 15 U.S.C. 1681u(c).
30 P.L. 107-56, §505, 115 Stat. 365-66 (2001).
31 “The information acquired through NSLs is extremely valuable to national security investigations…. Unfortunately,
however, NSLs were of limited utility prior to the PATRIOT Act. While records held by third parties may generally be
subpoenaed by a grand jury in a criminal investigation so long as those records are relevant, the standard for obtaining
such records through an NSL was much higher before October of 2001.
“The FBI had to have specific and articulable facts that the information requested pertained to a foreign power or an
(continued...)
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Subsection 358(g) of the USA PATRIOT Act amended the Fair Credit Reporting Act to add a fifth
and final NSL section; the provision had one particularly noteworthy feature, it was available not
merely to the FBI but to any government agency investigating or analyzing international
terrorism:
Notwithstanding [S]ection 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.32
Although the subsection’s legislative history treats it as a matter of first impression,33 Congress’s
obvious intent was to provide other agencies with the national security letter authority
comparable to that enjoyed by the FBI under the Fair Credit Reporting Act. The new section had
a nondisclosure and a safe harbor subsection, 15 U.S.C. 1681v(c), (e), but no express means of
judicial enforcement or penalties for improper disclosure of a request under the section.
In the 108th Congress, the scope of the Right to Financial Privacy Act NSL was enlarged by
defining the financial institutions subject to the authority to include not only banks and credit
unions but also car dealers, jewelers, and real estate agents, among others.34 The same Congress
(...continued)
agent of a foreign power. This requirement often prohibited the FBI from using NSLs to develop evidence at the early
stage of an investigation, which is precisely when they are the most useful.
“The prior standard, Mr. Chairman, put the cart before the horse. Agents trying to determine whether or not there were
specific and articulable facts that a certain individual was a terrorist or spy were precluded from using an NSL in this
inquiry because, in order to use an NSL, they first had to be in possession of such facts.
“Suppose, for example, investigators were tracking a known al-Qaeda operative and saw him having lunch with three
individuals. A responsible agent would want to conduct a preliminary investigation of those individuals and find out,
among other things, with whom they had recently been in communication.
“Before the passage of the PATRIOT Act, however, the FBI could not have issued an NSL to obtain such information.
While investigators could have demonstrated that this information was relevant to an ongoing terrorism investigation,
they could not have demonstrated sufficient specific, and articulable facts that the individuals in question were agents
of a foreign power,” Material Witness Provisions of the Criminal Code, and the Implementation of the USA PATRIOT
Act: Section 505 That Addresses National Security Letters, and Section 804 That Addresses Jurisdiction Over Crimes
Committed at U.S. Facilities Abroad: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of
the House Comm. on the Judiciary, 109th Cong., 1st Sess. at 9-10 (2005) (testimony of Matthew Berry, Office of Legal
Policy, U.S. Department of Justice).
32 P.L. 107-56, §358(g), 115 Stat. 327 (2001).
33 E.g., H.Rept. 107-250, at 60-1 (“This section facilitates government access to information contained in suspected
terrorists’ credit reports when the government inquiry relates to an investigation, of or intelligence activity or analysis
relating to, domestic or international terrorism. Even though private entities such as lender and insurers can access an
individual’s credit history, the government is strictly limited in its ability under current law to obtain the information.
This section would permit those investigating suspected terrorists prompt access to credit histories that may reveal key
information about the terrorist’s plan or source of refunding—without notifying the target”).
34 P.L. 108-177, §374, 117 Stat. 2628 (2004), 12 U.S.C. 3414(d), adopts the definition of financial institution found in
31 U.S.C. 5312(a)(2), (c)(1), that is: “(A) an insured bank (as defined in 12 U.S.C. 1813(h)); (B) a commercial bank or
trust company; (C) a private banker; (D) an agency or branch of a foreign bank in the United States; (E) any credit
union; (F) a thrift institution; (G) a broker or dealer registered with the Securities and Exchange Commission; (H) a
broker or dealer in securities or commodities; (I) an investment banker or investment company; (J) a currency
exchange; (K) an issuer, redeemer, or cashier of travelers’ checks, checks, money orders, or similar instruments; (L) an
operator of a credit card system; (M) an insurance company; (N) a dealer in precious metals, stones, or jewels; (O) a
pawnbroker; (P) a loan or finance company; (Q) a travel agency; (R) a licensed sender of money or any other person
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saw a number of proposals introduced to exempt libraries from the reach of the communications
NSL,35 to increase congressional oversight over the use of NSL authority,36 and to add the USA
PATRIOT Act section 505 NSL amendments to the list of those temporary sections scheduled to
expire on December 31, 2005.37 The 108th also witnessed the introduction of proposals that
ultimately evolved into the NSL amendments in the USA PATRIOT Improvement and
Reauthorization Act. H.R. 3179, introduced by Representative Sensenbrenner. They would have
reinforced the five national security letter provisions with explicit authority for judicial
enforcement38 and with criminal penalties for improper disclosure of the issuance of such letters.
The penalties were to be the same as those proposed under the general administrative subpoena
bills offered in the 108th—imprisonment for not more than five years when committed with the
intent to obstruct and for not more than one year otherwise, proposed 18 U.S.C. 1510(e). A
Justice Department witness explained that, “Oftentimes, the premature disclosure of an ongoing
terrorism investigation can lead to a host of negative repercussions, including the destruction of
evidence, the flight of suspected terrorists, and the frustration of efforts to identify additional
terrorist conspirators. For these reasons, the FBI has forgone using NSLs in some investigations
for fear that the recipients of those NSLs would compromise an investigation by disclosing the
fact that they had been sent an NSL.”39 The enforcement provision would have been backed by
the court’s contempt power, proposed 18 U.S.C. 2332h.40 It had no explicit provisions, however,
to permit the recipient to file a motion to quash or modify the NSL request.
(...continued)
who engages as a business in the transmission of funds, including any person who engages as a business in an informal
money transfer system or any network of people who engage as a business in facilitating the transfer of money
domestically or internationally outside of the conventional financial institutions system; (S) a telegraph company; (T) a
business engaged in vehicle sales, including automobile, airplane, and boat sales; (U) persons involved in real estate
closings and settlements; (V) the United States Postal Service; (W) an agency of the United States Government or of a
State or local government carrying out a duty or power of a business described in this paragraph; (X) a casino,
gambling casino, or gaming establishment with an annual gaming revenue of more than $1,000,000 which—(i) is
licensed as a casino, gambling casino, or gaming establishment under the laws of any State or any political subdivision
of any State; or (ii) is an Indian gaming operation conducted under or pursuant to the Indian Gaming Regulatory Act
other than an operation which is limited to class I gaming (as defined in section 4(6) of such Act); (Y) any business or
agency which engages in any activity which the Secretary of the Treasury determines, by regulation, to be an activity
which is similar to, related to, or a substitute for any activity in which any business described in this paragraph is
authorized to engage; (Z) any other business designated by the Secretary whose cash transactions have a high degree of
usefulness in criminal, tax, or regulatory matters; [ or (AA)] any futures commission merchant, commodity trading
advisor, or commodity pool operator registered, or required to register, under the Commodity Exchange Act.”
35 H.R. 3352, §5 (Rep. Otter); S. 1158, §3 (Sen. Boxer); S. 1507, §2 (Sen. Feingold); S. 1552, §4(b) (Sen. Murkowski);
and S. 1709, §5 (Sen. Craig).
36 S. 436, §3 (Sen. Leahy).
37 H.R. 3171, §4 (Rep. Kucinich); H.R. 3352, §7 (Rep. Otter); S. 1695, §2 (Sen. Leahy); and S. 1709, §6 (Sen. Craig).
38 In Doe v. Ashcroft, 334 F.Supp.2d 471, 496-501 (S.D.N.Y. 2004), the Government argued unsuccessfully that the
NSL statutes should be understood to include an implicit judicial enforcement component.
39 Anti-Terrorism Intelligence Tools Improvement Act of 2003: Hearing Before the Subcomm. on Crime, Terrorism,
and Homeland Security (House Hearing), 108th Cong., 2nd Sess., 7-8 (2004)(prepared statement of United States
Assistant Attorney General Daniel J. Bryant).
40 Proposed 18 U.S.C. 2332h (“In the case of a refusal to comply with a request for records, a report, or other
information made to any person under [S]ection 2709(b) of this title, [S]ection 625 (a) or (b) or 626 of the Fair Credit
Reporting Act [15 U.S.C. 1681u, 1681v], [S]ection 1114(a)(5)A) of the right to Financial Privacy Act [12 U.S.C. 3414,
or section 802(a) of the National Security Act of 1947 [50 U.S.C. 3162(a)], the Attorney General may invoke the aid of
any court of the United States within the jurisdiction of which the investigation is carried on or the person resides,
carries on business, or may be found, to compel compliance with the request. The court may issue an order requiring
the person to comply with the request. Any failure to obey the order of the court may be punished by the court as
contempt thereof. Any process under this section may be served in any judicial district in which the person may be
(continued...)
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Pre-amendment Judicial Action
Proponents of legislative proposals in the 108th Congress did not enjoy the benefit of two court
decisions that colored the debate over NSL authority during the 109th Congress. Doe v. Ashcroft,41
reached much the same conclusion on the First Amendment issue: narrowly defined, the
government’s and Doe v. Gonzales42 suggested that the NSL statutes could not withstand
constitutional scrutiny unless more explicit provisions were made for judicial review and
permissible disclosure by recipients. In essence, Doe v. Ashcroft found that the language of 18
U.S.C. 2709 and the practices surrounding its use offended (1) the Fourth Amendment because
“in all but the exceptional case it [had] the effect of authorizing coercive searches effectively
immune from any judicial process,” 334 F.Supp.2d at 506, and (2) the First Amendment because
its sweeping, permanent secrecy order feature applied “in every case, to every person, in
perpetuity, with no vehicle for the ban to ever be lifted from the recipient or other persons
affected under any circumstances, either by the FBI itself, or pursuant to judicial process,” id. at
476.
NSL Amendments in the 109th Congress
Both USA PATRIOT Act reauthorization statutes—P.L. 109-177 (H.R. 3199) and P.L. 109-178 (S.
2271)43—amended each of the NSL statutes. They
• created a judicial enforcement mechanism and a judicial review procedure for
both the requests and accompanying nondisclosure requirements;44
• established specific penalties for failure to comply or to observe the
nondisclosure requirements;45
• made it clear that the nondisclosure requirements did not preclude a recipient
from consulting an attorney;46
• provided a process to ease the nondisclosure requirement;47
• expanded congressional oversight;48
• called for an Inspector General’s audit of use of the authority.49
(...continued)
found”).
41 334 F.Supp.2d 471 (S.D.N.Y. 2004), vac’d and remanded, 449 F.3d 415 (2d Cir. 2006), after remand, 500 F.Supp.2d
379 (S.D.N.Y. 2007), aff’d in part, rev’d in part and remanded, 549 F.3d 861 (2d Cir. 2008), after remand, 665
F.Supp.2d 426 (S.D.N.Y. 2009); see also, Doe v. Holder, 703 F.Supp.2d. 313 (S.D.N.Y. 2010).
42 386 F.Supp.2d 66 (D.Conn. 2005), dism’d as moot, 449 F.3d 415 (2d Cir. 2006).
43 120 Stat. 192 (2006) and 120 Stat. 278 (2006), respectively.
44 28 U.S.C. 3511.
45 28 U.S.C. 3511(c), 18 U.S.C. 1510(e).
46 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.3162(b)(1).
47 28 U.S.C. 3511(b).
48 P.L. 109-177, §118.
49 P.L. 109-177, §119.
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Post-Amendment NSL Attributes
Addressees and Certifying Officials
The five NSL statutes share a number of common attributes, although each has its own individual
features as well. They are most distinctive with respect to the nature of the businesses to whom
they may be addressed. The Electronic Communication Privacy Act NSLs are addressed to
communications providers.50 Those issued under the authority of the Right to Financial Privacy
Act may be directed to any financial institution, which as noted earlier, includes not only banks
and credit unions, but credit card companies, car dealers, jewelers and a number of entities that
are likely the scene of large cash transactions.51 The Fair Credit Reporting Act NSLs may be
addressed to consumer credit reporting agencies.52 Recipients of the National Security Act NSLs
may include either financial institutions or consumer credit reporting agencies as well as any
commercial entity with information concerning an agency employee’s travel.53
FBI officials are authorized to provide the initial certification required for issuance of an NSL
under any of the five statutes. In three instances, the authority is exclusive; in the other two, it is
enjoyed by other federal officials as well. In the case of the Electronic Communications Privacy
Act NSL section, the Right to Financial Privacy Act section, and one of the Fair Credit Report Act
NSL sections, issuance requires the certification of either the Director of the FBI, a senior FBI
official (no lower than the Deputy Assistant Director), or the Special Agent in Charge of an FBI
field office.54
Certifying officials under the other statutes are described more broadly. The National Security Act
NSL section contemplates certification by officials from a wider range of agencies; the second
Fair Credit Reporting Act NSL section allows certification by both a wider range of agencies and
a wider range of officials. Senior officials no lower than Assistant Secretary or Assistant Director
of an agency whose employee with access to classified material is under investigation may certify
a National Security Act NSL request.55 A designated supervisory official of any agency
“authorized to conduct investigations of, or intelligence or counterintelligence activities and
analysis related to, international terrorism” may certify a NSL request under the second, more
recent Fair Credit Reporting Act section.56
Purpose, Standards, Information Covered
Although variously phrased, the purpose for each of the NSLs is to acquire information related to
the requesting agency’s national security concerns. The most common statement of purpose is “to
protect against international terrorism or clandestine intelligence activities.”57 The more recent of
50 18 U.S.C. 2709.
51 12 U.S.C. 3414(a), (d).
52 15 U.S.C. 1681u(a), 1681v(a).
53 50 U.S.C. 3162(a).
54 18 U.S.C. 2709 (b); 12 U.S.C. 3414(a)(5)(A); 15 U.S.C. 1681u(b).
55 50 U.S.C. 3162(a)(3).
56 15 U.S.C. 1681v(a).
57 18 U.S.C. 2709(b); 12 U.S.C. 3414(a)(5)(A); 15 U.S.C. 1681u(b).
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the Fair Credit Reporting Act NSL sections simply indicates that the information must be sought
for the requesting intelligence agency’s investigation, activity or analysis.58 The National Security
Act NSL authority is available to conduct law enforcement investigations, counterintelligence
inquiries, and security determinations.59 As to standards, the Electronic Communications Privacy
Act authorizes NSLs for relevant information.60 The same standard may apply to the others which
are a little more cryptic, authorizing NSLs when the information is “sought for”61 or “is
necessary”62 for the statutory purpose.
The communications NSL provision and the earlier of the two credit agency NSL statutes are
fairly specific in their descriptions of the information that may be requested through an NSL. An
Electronic Communications Privacy Act NSL may request a customer’s name, address, length of
service and billing records.63 The older of the two Fair Credit Report Act sections authorizes a
NSL to acquire name, address or former address, place or former place of employment, and the
name and address of any financial institution with which the consumer has or once had an
account.64 The Right to Financial Privacy Act NSL provision covers the financial records of a
financial institution’s customers;65 the second and more recent Fair Credit Reporting Act NSL
provision covers a consumer reporting agency’s consumer reports and “all other” consumer
information in its files.66 The National Security Act provision is at once the most inclusive and the
most restricted. It authorizes NSLs for financial information and records and consumer reports
held by any financial agency, institution, holding company or consumer reporting agency, and for
travel information held by any commercial entity.67 On the other hand, it is the only provision that
limits the information provided to that pertaining to the target of the agency’s investigation and to
information of a kind whose disclosure the target has previously approved.68
Confidentiality
Prior to their amendment in the 109th Congress, the NSL statutes generally featured an open
ended confidentiality clause. The communications NSL provision for example declared, “No wire
or electronic communication service provider, or officer, or employee, or agent thereof, shall
disclose to any person that the Federal Bureau of Investigation has sought or obtained access to
information or records under this section.”69 The statutes did not indicate whether a recipient
might consult an attorney in order to ascertain his rights and obligations, or whether it might ever
be lifted. It was this silence in the face of a seemingly absolute, permanent nondisclosure
58 15 U.S.C. 1681v(a).
59 50 U.S.C. 3162(a)(1).
60 18 U.S.C. 2709(b).
61 15 U.S.C. 1681u(a); 12 U.S.C. 3414(a)(5)(A).
62 15 U.S.C. 1681v; 50 U.S.C. 3162(a).
63 18 U.S.C. 2709(b).
64 15 U.S.C. 1681u(a),(b).
65 12 U.S.C. 3414(a)(5)(A).
66 15 U.S.C. 1681v(a)
67 50 U.S.C. 3162(a)(1).
68 50 U.S.C. 3162(a)(2),(3).
69 18 U.S.C. 2709(c) (2000 ed.); see also, 12 U.S.C. 3414(a)(5)(D) (2000 ed.); 15 U.S.C. 1681u(d) (2000 ed.); 15
U.S.C. 1681v(c) (2002 Supp.); 50 U.S.C. 436(b) (2000 ed.).
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command that the early Doe courts found constitutionally unacceptable70 and that perhaps led to
the reconstruction of the NSL confidentiality requirements in their current form.
As NSL statutes now read, secrecy is not absolutely required. Instead NSL recipients are bound to
secrecy only upon the certification of the requesting agency that disclosure of the request or
response may result in a danger to national security; may interfere with diplomatic relations or
with a criminal, counterterrorism, or counterintelligence investigation; or may endanger the
physical safety of an individual. A recipient may disclose the request to those necessary to comply
with the request and to an attorney the recipient consults for related legal advice or assistance. In
doing so, the recipient must advise them of the secrecy requirements. Aside from its attorney and
at the agency’s election, the recipient must also identify those to whom it has disclosed the
request. A recipient may petition the court to modify or extinguish any NSL secrecy requirement
within a year of issuance.71 Thereafter, it may petition to have the veil of secrecy lifted, although
it may resubmit a rejected request only once a year.72 In all instances, section 3511 declares
conclusive and warranting continued secrecy the certification by certain officials that disclosure
might create a danger to national security, interfere with diplomatic relations or ongoing
investigations, or jeopardize personal safety.73 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).74
Judicial Review and Enforcement
In addition to authority to review and set aside NSL nondisclosure requirements, the federal
courts also enjoy jurisdiction to review and enforce the underlying NSL requests. Recipients may
petition and be granted an order modifying or setting aside an NSL, if the court finds that
compliance would be unreasonable, oppressive, or otherwise unlawful.75 Subpoenas issued under
the Federal Rules of Criminal Procedure may be modified or quashed if compliance would be
unreasonable or oppressive.76 The Rule affords protection against undue burdens and protects
privileged communications.77 Compliance with a particular NSL might be unduly burdensome in
some situations, but the circumstances under which NSLs are used suggest few federally
recognized privileges. The Rule also imposes a relevancy requirement, but in the context of an
investigation a motion to quash will be denied unless it can be shown that “there is no reasonable
possibility that the category of materials the Government seeks will produce information
relevant” to the investigation.78 The authority to modify or set aside a NSL that is unlawful
70 Doe v. Ashcroft, 334 F.Supp.2d 471, 522 (S.D.N.Y. 2004). and Doe v. Gonzales, 386 F.Supp.2d 66, 78-81 (D.Conn.
2005).
71 28 U.S.C. 3511(b)(2). As construed by the Second Circuit, the government is obliged to advise a recipient that the
recipient has a period of time within which to decide if he would like the government to seek judicial review of its
determination of the need for secrecy, John Doe, Inc. v. Mukasey, 549 F.3d 861, 883 (2d Cir. 2008).
72 28 U.S.C. 3511(b)(3).
73 28 U.S.C. 3511(b)(2), (3). The Second Circuit has declared this component of the procedure unconstitutional, John
Doe, Inc. v. Mukasey, 549 F.3d at 883.
74 18 U.S.C. 1510(e), 3571, 3559.
75 28 U.S.C. 3511.
76 F.R.Crim.P. 17(c)(2).
77 2 WRIGHT, FEDERAL PRACTICE AND PROCEDURE §275 (Crim. 3d ed. 2000).
78 United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991).
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affords the court an opportunity to determine whether the NSL in question complies with the
statutory provisions under which it was issued. On the other hand, the court’s authority may be
invoked to enforce the NSL against a recalcitrant recipient and failure to comply thereafter is
punishable as contempt of court.79
Dissemination
Attorney General’s guidelines govern the sharing of information acquired in response to NSLs
under two statutes.80 A third, the older of the two Fair Credit Report Act sections, limits
dissemination to sharing within the FBI, with other agencies to the extent necessary to secure
approval of a foreign counterintelligence investigation, or with military investigators when the
information concerns a member of the Armed Forces.81 The National Security Act authorizes
dissemination of NSL information to the agency of the employee under investigation, to the
Justice Department for law enforcement or counterintelligence purposes, or to another federal
agency if the information is clearly relevant to its mission.82 The more recent Fair Credit
Reporting Act NSL section has no explicit provision on restricting dissemination.83
Liability, Fees and Oversight
Since judicial enforcement is a feature new to all but one of the NSL statutes,84 they might be
expected to include other incentives to overcome recipient resistance. Three do offer immunity
from civil liability for recipients who comply in good faith,85 and two offer fees or reimbursement
to defer the costs of compliance.86
The confidentiality that necessarily surrounds NSL requests could give rise to concerns of
governmental overreaching. Consequently, regular reports on the use of NSL authority must be
made to the congressional intelligence and judiciary committees and in some instances to the
banking committees.87 Moreover, section 119 of the USA PATRIOT Improvement and
Reauthorization Act instructs the Inspector General of the Department of Justice to audit and to
report to the judiciary and intelligence committees as to the Department’s use of the authority in
the years following expansion of the authority in the USA PATRIOT Act. The section also directs
79 28 U.S.C. 3511(c).
80 12 U.S.C. 3414(a)(5)(B)(“The Federal Bureau of Investigation may disseminate information obtained pursuant to
this paragraph only as provided in guidelines approved by the Attorney General for foreign intelligence collection and
foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to
dissemination to an agency of the United States, only if such information is clearly relevant to the authorized
responsibilities of such agency”); see also, 18 U.S.C. 2709(d).
81 15 U.S.C. 1681u(f).
82 50 U.S.C. 3162(e).
83 15 U.S.C. 1681v.
84 In addition to the newly added judicial enforcement mechanism in 28 U.S.C. 3511, the earlier Fair Credit Report Act
NSL sections had a limited judicial enforcement subsection, as it had for some time, 15 U.S.C. 1681u(c).
85 15 U.S.C. 1681u(k), 1681v(e); 50 U.S.C. 3162(c)(2).
86 15 U.S.C. 1681u(e); 50 U.S.C. 3162(d).
87 P.L. 109-177, §118(a)(adding the judiciary committees as recipients of all NSL required reports); 12 U.S.C.
3414(a)(5)(C)(intelligence committees); 18 U.S.C. 2709 (intelligence and judiciary committees); 15 U.S.C.
1681u(h)(intelligence and banking committees), 1681v(judiciary, intelligence, and banking committees).
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the Attorney General and the Director of National Intelligence to report to Congress on the
feasibility of establishing minimization requirements for the NSLs.
The chart that follows summarizes the differences among the five NSL sections:
Table 1. Profile of the Current NSL Statutes
12 U.S.C.
15 U.S.C.
15 U.S.C.
NSL statute
18 U.S.C. 2709
3414
1681u
1681v
50 U.S.C. 3162
Addressee communications financial
consumer credit consumer credit financial institutions,
providers
institutions
agencies
agencies
consumer credit
agencies, travel
agencies
Certifying
senior FBI officials
senior FBI
senior FBI
supervisory
senior officials no
officials
and SACs
officials and
officials and
official of an
lower than Ass’t
SACs
SACs
agency
Secretary or Ass’t
investigating,
Director of agency
conducting
w/ employees w/
intelligence
access to classified
activities relating material
to or analyzing
int’l terrorism
Information
identified
identified
identified
all information
all financial
covered
customer’s name,
customer
consumer’s
relating to an
information relating
address, length of
financial
name, address,
identified
to consenting,
service, and billing
records
former address,
consumer
identified employee
info
place and
former place of
employment
Standard/
relevant to an
sought for
sought for an
necessary for
necessary to
Purpose
investigation to
foreign
investigation to
the agency’s
conduct a law
protect against int’l counter-
protect against
investigation,
enforcement
terrorism or
intelligence
int’l terrorism
activities, or
investigation,
clandestine
purposes to
or clandestine
analysis relating
counter-intelligence
intelligence
protect against intelligence
to int’l terrorism inquiry or security
activities
int’l terrorism
activities
determination
or clandestine
intelligence
activities
Dissemination only per Att’y Gen. only per Att’y
w/i FBI, to
no statutory
only to agency of
guidelines
Gen. guidelines secure approval
provision
employee under
for intell.
investigation, DOJ
investigation, to
for law enforcement
military
or intell. purposes,
investigators
or fed. agency when
when inform.
clearly relevant to
relates to
mission
military member
Immunity/fees no provisions
no provisions
fees; immunity
immunity for
reimbursement;
for good faith
good faith
immunity for good
compliance with
compliance with
faith compliance
a NSL
a NSL
with a NSL
Source: Congressional Research Service, based on the statutes cited in the table.
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Inspector General’s 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.88 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
2005.89 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
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.90
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.91
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
88 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.
89 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.
90 IG Report I at 49.
91 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.
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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. 92
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.93
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.’”94
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.”95 Moreover, information supplied in response to
NSLs provides the grist of FBI analytical intelligence reports and various FBI databases.96
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;”
92 Critics might suggest that these offenses are “possible” in the operation of any convenience store.
93 IG Report I at 50.
94 Id. at 51.
95 Id. at 65.
96 Id.
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• 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.
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.97 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.98 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.99 There are specific exceptions
for disclosure upon receipt of a grand jury subpoena100 or an NSL.101 A service provider who
97 Smith v. Maryland, 442 U.S. 735, 745 (1979)
98 Richards v. Wisconsin, 520 U.S. 385, 391 (1997); Wilson v. Arkansas, 514 U.S. 927, 936 (1995).
99 18 U.S.C. 2702(c).
100 18 U.S.C. 2703(c)(2).
101 18 U.S.C. 2709(a).
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knowingly or intentionally violates the prohibition is subject to civil liability,102 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.”103 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 [S]ection 2702.”104
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 2005;
• “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
102 18 U.S.C. 2707(a).
103 IG Report I at 90.
104 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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during the period from 2003 to 2007.105 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.”106
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.”107 “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.”108
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
that the FBI also made inaccurate statements to the FISA Court related to its use of exigent
letters.”109
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.”110
Post-Amendment Judicial Action
Following the 2006 USA PATRIOT Act amendments, the District Court for the Southern District
of New York revisited the issue anew and concluded that the revised NSL procedures violated
both First Amendment and separation of powers principles.111 It enjoined Justice Department
officials from issuing NSLs under Section 2709 or from enforcing compliance with existing
orders.112 However, it stayed the order pending appeal.113 The Court of Appeals was similarly
disposed, but concluded that the government could invoke the secrecy and judicial review
105 IG Report III at 1.
106 2010 Hearings at 14 (statement of Department of Justice Inspector General Glenn Fine)
107 Id. at 15.
108 Id.
109 Id. at 288 (redaction in the original).
110 IG Report III at 289.
111 Doe v. Gonzalez, 500 F.Supp.2d 379 (S.D.N.Y. 2007), aff’d in part, rev’d in part, and remanded, sub nom., John
Doe, Inc. v. Mukasey, 549 F.861 (2d Cir. 2008).
112 Doe v. Gonzalez 500 F.Supp.2d at 425-26.
113 Id. at 426.
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authority of the 18 U.S.C. 2709 and 18 U.S.C. 3511 in a limited but constitutionally permissible
manner.114
The issues before the Court of Appeals were (1) whether the nondisclosure features of Section
2709(c) should be subject to First Amendment strict scrutiny and (2) whether judicial review
subject to the conclusive weight of an executive branch certification under Section 3511 posed
constitutional concerns.
The pre-amendment Doe cases had concluded that Section 2709(c), which then broadly
prohibited disclosure of receipt of an NSL, “work[ed] as both a prior restraint on speech and a
content-based restriction, and hence, [was] subject to strict scrutiny.”115 “Under strict scrutiny
review,” the Supreme Court has explained, “the Government must demonstrate that the
nondisclosure requirement is narrowly tailored to promote a compelling Government interest.”116
Moreover, there can be “no less restrictive alternatives that would be at least as effective in
achieving the legitimate purpose that the statute was enacted to serve.”117 When a suspect prior
restraint comes in the form of a licensing scheme, under which expression is banned for want of
government permission as in Freedman v. Maryland, the scheme must include prompt judicial
review at the petition and burden of the regulator.118
Yet, the courts have been unwilling to classify as constitutionally suspect all instances of apparent
prior restraint. The government in its presentation to the Second Circuit pointed to a number of
instances where withstanding an apparent prior restraint regulators were held to a less demanding
standard—citing cases involving pre-trial discovery gag orders, grand jury secrecy, the
confidentiality surrounding inquiry into judicial misconduct, and the secrecy agreements signed
by national security employees.119
In fact when the Supreme Court assessed the First Amendment validity of a pre-trial discovery
gag order, it concluded that the relevant questions were two: first, “whether the practice in
question furthers an important or substantial governmental interest unrelated to the suppression of
expression;” and second, “whether the limitation of First Amendment freedoms is no greater than
is necessary or essential to the protection of the particular governmental interest involved.”120
114 John Doe, Inc. v. Mukasey, 549 F.3d at 883-84.
115 Doe v. Ashcroft, 334 F.Supp.2d 471, 511 (S.D.N.Y. 2004); Doe v. Gonzales, 386 F.Supp.2d 66, 75 (D.Conn.
2005)(“Section 2709(c) is subject to strict scrutiny not only because it is a prior restraint, but also because it is a
content-based restriction”).
116 Playboy Entertainment 529 U.S. 803, 813 (2000).
117 Reno v. ACLU, 521 U.S. 844, 874 (1997).
118 FW/PHS, Inc. v. Dallas, 493 U.S. 215, (1990)(“In Freedman, we determined that the following three procedural
safeguards were necessary to ensure expeditious decisionmaking by the motion picture censorship board: (1) any
restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be
maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden
of proof once in court”), citing Freedman v. Maryland, 380 U.S. 51, 58-60 (1965).
119 John Doe, Inc. v. Mukasey, 549 F.3d 861, 876-77 (2d Cir. 2008) noting the government contentions based on Seattle
Times Co. v. Rhinehard, 467 U.S. 20 (1984)(pre-trial discovery); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S.
211 (1979)(grand jury); Kamasinski v. Judicial Review Council, 44 F.3d 106 (2d Cir. 1994)(judicial misconduct);
United States v. Snepp, 897 F.2d 138 (4th Cir. 1990)(CIA employees); United States v. Marchetti, 466 F.2d 1309 (4th
Cir. 1972)(same).
120 Seattle Times Co. v. Rhinehard, 467 U.S. at 32.
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The members of the Second Circuit panel could not agree on whether Section 2709(c), as
amended, constituted a prior restraint subject to strict scrutiny analysis, or should be judged by a
somewhat less demanding standard. The lack of consensus proved of little consequence, because
the government conceded that strict scrutiny analysis was appropriate,121 and because the panel
agreed the result would be the same under the factor common to both standards—whether the
restriction on expression crafted to protect the government’s interest was narrowly tailored for
that purpose.122
The government’s interest in national security is indisputably compelling.123 Unwilling to read
Section 2709(c) procedure as a licensing scheme, the Second Circuit panel nevertheless
concluded that “in the absence of Government-initiated judicial review, subsection 3511(b) is not
narrowly tailored to conform to First Amendment protected standards.”124 Moreover, the judicial
review must be real. It must “place on the Government the burden to show a good reason to
believe that disclosure may result in an enumerated harm, i.e. a harm related to an authorized
investigation to protect against international terrorism or clandestine intelligence activities.”125
Such judicial review may occur ex parte and in camera, but it may not be bound by the
executive’s conclusive certification of harm feature of Section 3511. In the eyes of the court, there
is no meaningful judicial review “of the decision of the Executive Branch to prohibit speech if the
position of the Executive Branch that speech would be harmful is ‘conclusive’ on the reviewing
court, absent only a demonstration of bad faith.”126 “To accept deference to that extraordinary
degree would be to reduce strict scrutiny to no scrutiny, save only in the rarest of situations where
bad faith could be shown,” it concluded.127
Yet the court envisioned a procedure under which NSL secrecy provision might survive:
We deem it beyond the authority of a court to “interpret” or “revise” the NSL statutes to
create the constitutionally required obligation of the Government to initiate judicial review of
a nondisclosure requirement. However, the Government might be able to assume such an
obligation without additional legislation….
If the Government uses the suggested reciprocal notice procedure as a means of initiating
judicial review, there appears to be no impediment to the Government’s including notice of a
recipient’s opportunity to contest the nondisclosure requirement in an NSL. If such notice is
given, time limits on the nondisclosure requirement pending judicial review, as reflected in
Freedman, would have to be applied to make the review procedure constitutional. We would
deem it to be within our judicial authority to conform subsection 2709(c) to First
Amendment requirements, by limiting the duration of the nondisclosure requirement, absent
a ruling favorable to the Government upon judicial review, to the 10-day period in which the
NSL recipient decides whether to contest the nondisclosure requirement, the 30-day period
in which the Government considers whether to seek judicial review, and a further period of
60 days in which a court must adjudicate the merits, unless special circumstances warrant
additional time. If the NSL recipient declines timely to precipitate Government-initiated
121 John Doe, Inc. v. Mukasey, 549 F.3d at 878.
122 Id.
123 John Doe, Inc. v. Mukasey, 549 F.3d at 878, citing Haig v. Agee, 453 U.S. 280, 307 (1981).
124 John Doe, Inc. v. Mukasey, 549 F.3d at 880-81.
125 Id. at 881.
126 Id. at 882.
127 Id.
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judicial review, the nondisclosure requirement would continue, subject to the recipient’s
existing opportunities for annual challenges to the nondisclosure requirement provided by
subsection 3511(b). If such an annual challenge is made, the standards and burden of proof
that we have specified for an initial challenge would apply, although the Government would
not be obliged to initiate judicial review.128
Given the possibility of constitutional application, the court saw no reason to invalidate Section
2709(c) and Section 3511(b) in toto. The exclusive presumptions of Section 3511 cannot survive,
the court declared, but the First Amendment finds no offense in the remainder of the two sections
except “to the extent that they fail to provide for Government-initiated judicial review. The
Government can respond to this partial invalidation ruling by using the suggested reciprocal
notice procedure.”129
On remand under the procedure suggested by the Court of Appeals, the government submitted the
declaration of the senior FBI official concerning the continued need for secrecy concerning the
NSL. Following an ex parte, in camera hearing, the district court concluded the government had
met its burden, but granted the plaintiff’s motion for an unclassified, redacted summary of the
FBI declaration.130
The possibility of a conflicting view has arisen in the Ninth Circuit. A federal district court there
agreed with the Second Circuit that the NSL confidentiality and judicial review provisions were
constitutionally suspect.131 Yet it could not agree with the Second Circuit that NSL authority
might be used if the confidentiality and judicial review provisions were implemented to satisfy
constitutional demands. The statutory language was too clear and the congressional intent too
apparent for the court to feel it could move in the opposite direction. It declared,
The statutory provisions at issue—as written, adopted and amended by Congress in the face
of a constitutional challenge—are not susceptible to narrowing conforming constructions to
save their constitutionality ... [I]n amending and reenacting the statute as it did, Congress
was concerned with giving the government the broadest powers possible to issue NSL
nondisclosure orders and to preclude searching judicial review of the same ... [T]he sorts of
multiple inferences required to save the provisions at issue are not only contrary to evidence
of Congressional intent, but also contrary to the statutory language and structure of the
statutory provisions actually enacted by Congress.132
The district court also concluded that, if the confidentiality and judicial review provisions could
not survive, neither could the remainder of the NSL authority.133 The court, therefore, barred the
128 Id. at 883-84.
129 Id. at 884.
130 Doe v. Holder, 665 F.Supp.2d 426, 432-34 (S.D.N.Y. 2009); see also Doe v. Holder, 703 F.Supp.2d 313 (S.D.N.Y.
2010).
131 In re National Security Letter, 930 F.Supp.2d 1064, 1081 (N.D.Cal. 2013)(“[T]he Court concludes that the
nondisclosure provision of 18 U.S.C. §2709(c) violates the First Amendment and 18 U.S.C. §3511(b)(2) and (b)(3)
violate the Frist Amendment and separation of powers principles”).
132 Id. at 1080.
133 Id. at 1081(internal citations omitted) (“The Court also finds that the unconstitutional nondisclosure provisions are
not severable. There is ample evidence, in the manner in which the statutes were adopted and subsequently amended
after their constitutionality was first rejected in Doe v. Ashcroft and Doe v. Gonzales, that Congress fully understood
the issues at hand and the importance of the nondisclosure provisions. Moreover, it is hard to imagine how the
substantive NSL provisions—which are important for national security purposes—could function if no recipient were
required to abide by the nondisclosure provisions which have been issued in approximately 97% of the NSLs issued”).
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government from using Section 2709’s NSL authority and from enforcing the related NSL
confidentiality provisions. It stayed the order pending appeal.
Recommendations of the President’s Review Group
In the wake of leaks relating to the National Security Agency’s (NSA’s) purported bulk meta-data
collection program, the President established a Review Group on Intelligence and
Communications Technology (Group). The Group released its report and recommendations on
December 12, 2013.134 Several of its recommendations addressed NSLs. NSL procedures, it said,
should more closely resemble those of Section 215 FISA court orders. Thus, it proposed that (1)
the courts approve all NSLs except in emergency circumstances; (2) Section 215 orders be used
only in international terrorism and international espionage investigations; (3) the NSL statutes be
amended to track Section 215 minimization requirements; (4) both NSLs and Section 215 orders
should be subject to greater oversight and public reporting requirements.
Section 215 of the USA PATRIOT Act amended the business records provisions of FISA.135 As
amended, it authorizes FISA court orders for the production of tangible items held by individuals
and private entities in certain foreign intelligence cases.136 Section 215 orders provide
government access to business records in certain intelligence investigations; NSLs also provide
government access to business records in certain intelligence investigations. FISA court judges
issue Section 215 orders; FBI officials issue NSLs. The Group recommended that “statutes that
authorize the issuance of National Security Letters should be amended to permit the issuance of
National Security Letters only upon a judicial finding that: (1) the government has reasonable
grounds to believe that the particular information sought is relevant to an authorized investigation
intended to protect ‘against international terrorism or clandestine intelligence activities’ and (2)
like a subpoena, the order is reasonable in focus, scope, and breadth.”137 It explained that
For all the well-established reasons for requiring neutral and detached judges to decide when
government investigators may invade an individual’s privacy, there is a strong argument that
NSLs should not be issued by the FBI itself.... [F]oreign intelligence investigations are
especially likely to implicate highly sensitive and personal information and to have
potentially severe consequences for the individuals under investigation. We are unable to
identify a principled reason why NSLs should be issued by FBI officials when [Section] 215
orders and orders for pen registers and trap-and-trace surveillance must be issued by the
[FISA court].138
Without further adjustments, the proposed Section 215-NSL symmetry would be less than perfect.
Requiring judicial approval of both would be a first step in that direction. The Group, however,
did not suggest that the FISA court should approve all NSLs. It readily conceded that the 60-a-
day rate at which the FBI issues NSLs would overwhelm the FISA court as currently
134 Liberty and Security in a Changing World: Report and Recommendations of the President’s Review Group on
Intelligence and Communications Technology (Report), available at
http://www.whitehouse.gov/sites/defeault/files/docs/2013-12-12-reg_final_report.pdf.
135 P.L. 107-56, 115 Stat. 287 (2001).
136 50 U.S.C. 1861.
137 Report, Recommendation (R.) 2, at 24.
138 Report, at 92-3.
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constituted.139 It offered several alternative solutions, including enlarging the FISA court, but
endorsed none of the alternatives.140
The Group would also eliminate the gap that exists between when an NSL may be issued and
when a Section 215 order may be issued. Section 215 orders are available for investigations in
addition to the international terrorism or international espionage inquiries that support NSL
issuance under most statutes.141 Beyond terrorism and espionage, Section 215 orders are available
to secure “foreign intelligence information” as long as it does not relate to a “U.S. person.”142
Foreign intelligence information encompasses information about foreign nations and foreign
entities useful for the conduct of U.S. foreign relations.143 The Group endeavored to create
compatibility by shaving off the difference; it would allow Section 215 orders only in conjunction
with international terrorism or espionage investigations.144
Section 215 orders are subject to limitations as to how the information they generate may be used,
stored, shared, and kept or disposed of (minimization standards).145 The Group considered “the
oversight and minimization requirements governing the use of NSLs ... much less rigorous than
those imposed in the use of [Section] 215 orders.”146 Consequently, it recommended that NSLs be
held to Section 215 standards.147
Finally, the Group made a series of recommendations with an eye to greater oversight and public
disclosure. Their proposals would apply to NSLs, Section 215 orders, trap and trace orders,148
139 Id. at 93(“We recognize, however, that there are legitimate practical and logistical concerns. At the time, a
requirement that NSLs must be approved by the FISC would pose a serious logistical challenge. The FISC has only a
small number of judges and the FBI currently issues an average of nearly 60 NSLs per day. It is not realistic to expect
the FISC, as currently constituted, to handle the burden”).
140 Id.(“Several solutions may be possible, including a significant expansion in the number of FISC judges, the creation
within the FISC of several federal magistrate judges to handle NSL requests, and use of the Classified Information
Procedures Act to enable other federal courts to issue NSLs”).
141 18 U.S.C. 2709(international terrorism or espionage); 12 U.S.C. 3414(a)(5)(A)(international terrorism or
espionage); 15 U.S.C. 1681u(a)(international terrorism or espionage); 15 U.S.C. 1681v(international terrorism); 50
U.S.C. 3162(law enforcement investigation, counterintelligence inquiry, or security determination).
142 50 U.S.C. 1861(a).
143 50 U.S.C. 1891(e)(“‘Foreign intelligence information’ means- (1) information that relates to, and if concerning a
United States person is necessary to, the ability of the United States to protect against- (A) actual or potential attack or
other grave hostile acts of a foreign power or an agent of a foreign power; (B) sabotage, international terrorism, or the
international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or (C)
clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign
power; or (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United
States person is necessary to- (A) the national defense or the security of the United States; or (B) the conduct of the
foreign affairs of the United States”).
144 Report, R. 1, at 24(”We recommend that [§]215 should be amended to authorize the Foreign Intelligence
Surveillance Court to issue a [§]215 order compelling a third party to disclose otherwise private information about
particular individuals only if: (1) it finds that the government has reasonable grounds to believe that the particular
information sought is relevant to an authorized investigation intended to protect ‘against international terrorism or
clandestine intelligence activities’ and (2) like a subpoena, the order is reasonable in focus, scope, and breadth”).
145 50 U.S.C. 1861(g).
146 Report, at 92.
147 Report, R. 3 (“We recommend that all statutes authorizing the use of National Security Letters should be amended
to require the use of the same oversight, minimization, retention, and dissemination standards that currently govern the
use of [Section] 215 orders”).
148 Pen registers and trap and trace devices are essentially surreptitious caller ID devices. Orders for their installation
and use, however, supply an additional benefit. The providers to whom they are addressed may also be instructed to
(continued...)
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Section 702 orders,149 and orders of the kind that gave rise to the purported NSA bulk meta-data
collection. It suggested as a general matter that information concerning these authorities should
be available in detail to Congress and the public, consistent with the need to protect classified
information.150 More specifically, it recommended that nondisclosure orders (gag orders) issued
to communications carriers and other recipients should be limited to cases involving human
safety, maintaining congenial diplomatic relations, or similar substantial governmental
concerns.151 The Group would allow recipients to periodically disclose the number of times they
had received NSLs, Section 215 orders, and the like.152 It also proposed that the government be
required to issue regular public reports on the use of such orders.153
(...continued)
provide the government with “any mechanisms and sources of payment for such [customer] service including the
number of any credit card or bank account utilized for payment for such service,” 50 U.S.C. 1842(d)(2)(C)(i)(VII).
149 Section 702 of FISA authorizes the court to approve procedures for targeting the communications of non-U.S.
persons (foreign nationals and foreign entities) located overseas, 50 U.S.C. 1881a.
150 Report, R. 7 at 26(“We recommend that legislation should be enacted requiring that detailed information about
authorities such as those involving National Security Letters, section 215 business records, section 702, pen register
and trap-and-trace, and the section 215 bulk telephony meta-data program should be made available on a regular basis
to Congress and the American people to the greatest extent possible, consistent with the need to protect classified
information. With respect to authorities and programs whose existence is unclassified, there should be a strong
presumption of transparency to enable the American people and their elected representatives independently to assess
the merits of the programs for themselves”).
151 Report, R. 8 at 26-27(“We recommend that: (1) legislation should be enacted providing that, in the use of National
Security Letters, section 215 orders, pen register and trap-and-trace orders, 702 orders, and similar orders directing
individuals, businesses, or other institutions to turn over information to the government, non-disclosure orders may be
issued only upon a judicial finding that there are reasonable grounds to believe that disclosure would significantly
threaten the national security, interfere with an ongoing investigation, endanger the life or physical safety of any
person, impair diplomatic relations, or put at risk some other similarly weighty government or foreign intelligence
interest; (2) nondisclosure orders should remain in effect for no longer than 180 days without judicial re-approval; and
(3) nondisclosure orders should never be issued in a manner that prevents the recipient of the order from seeking legal
counsel in order to challenge the order’s legality”).
152 Report, R. 9 at 27(“We recommend that legislation should be enacted providing that, even when nondisclosure
orders are appropriate, recipients of National Security Letters, section 215 orders, pen register and trap-and-trace
orders, section 702 orders, and similar orders issued in programs whose existence is unclassified may publicly disclose
on a periodic basis general information about the number of such orders they have received, the number they have
complied with, the general categories of information they have produced, and the number of users whose information
they have produced in each category, unless the government makes a compelling demonstration that such disclosures
would endanger the national security”).
153 Report, R.10 at 27(“We recommend that, building on current law, the government should publicly disclose on a
regular basis general data about National Security Letters, section 215 orders, pen register and trap-and-trace orders,
section 702 orders, and similar orders in programs whose existence is unclassified, unless the government makes a
compelling demonstration that such disclosures would endanger the national security”).
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Appendixes
(Language added by P.L. 109-177 (H.R. 3199): in italics)
(Language added by P.L. 109-178 (S. 2271): in bold)
(Language repealed by either: struck out)
12 U.S.C. 3414 (text)
(a)(1) Nothing in this chapter (except sections 3415, 3417, 3418, and 3421 of this title) shall
apply to the production and disclosure of financial records pursuant to requests from:
(A) a Government authority authorized to conduct foreign counter- or foreign positive-
intelligence activities for purposes of conducting such activities;
(B) the Secret Service for the purpose of conducting its protective functions (18 U.S.C. 3056;
3 U.S.C. 202, Public Law 90-331, as amended); or
(C) a Government authority authorized to conduct investigations of, or intelligence or
counterintelligence analyses related to, international terrorism for the purpose of conducting
such investigations or analyses.
(2) In the instances specified in paragraph (1), the Government authority shall submit to the
financial institution the certificate required in section 3403(b) of this title signed by a supervisory
official of a rank designated by the head of the Government authority.
(3) No financial institution, or officer, employee, or agent of such institution, shall disclose to
any person that a Government authority described in paragraph (1) has sought or obtained access
to a customer’s financial records.
(3)(A) If the Government authority described in paragraph (1) or the Secret Service, as the case
may be, certifies that otherwise there may result a danger to the national security of the United
States, interference with a criminal, counterterrorism, or counterintelligence investigation,
interference with diplomatic relations, or danger to the life or physical safety of any person, no
financial institution, or officer, employee, or agent of such institution, shall disclose to any person
(other than those to whom such disclosure is necessary to comply with the request or an attorney
to obtain legal advice or legal assistance with respect to the request) that the Government
authority or the Secret Service has sought or obtained access to a customer’s financial records.
(B) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under subparagraph (A).
(C) Any recipient disclosing to those persons necessary to comply with the request or to an
attorney to obtain legal advice or legal assistance with respect to the request shall inform
such persons of any applicable nondisclosure requirement. Any person who receives a
disclosure under this subsection shall be subject to the same prohibitions on disclosure under
subparagraph (A).
(D) At the request of the authorized Government agency or the Secret Service, any person
making or intending to make a disclosure under this section shall identify to the requesting
official of the authorized Government agency or the Secret Service the person to whom such
disclosure will be made or to whom such disclosure was made prior to the request, [but in no
circumstance shall a person be required to inform such requesting official that the person
intends to consult an attorney to obtain legal advice or legal assistance] except that nothing
in this section shall require a person to inform the requesting official of the authorized
Government authority or the Secret Service of the identity of an attorney to whom
disclosure was made or will be made to obtain legal advice or legal assistance with
respect to the request for financial records under this subsection.
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(4) The Government authority specified in paragraph (1) shall compile an annual tabulation of
the occasions in which this section was used.
(5)(A) Financial institutions, and officers, employees, and agents thereof, shall comply with a
request for a customer’s or entity’s financial records made pursuant to this subsection by the
Federal Bureau of Investigation when the Director of the Federal Bureau of Investigation (or the
Director’s designee in a position not lower than Deputy Assistant Director at Bureau headquarters
or a Special Agent in Charge in a Bureau field office designated by the Director) certifies in
writing to the financial institution that such records are sought for foreign counter intelligence
purposes to protect against international terrorism or clandestine intelligence activities, provided
that such an investigation of a United States person is not conducted solely upon the basis of
activities protected by the first amendment to the Constitution of the United States.
(B) The Federal Bureau of Investigation may disseminate information obtained pursuant to
this paragraph only as provided in guidelines approved by the Attorney General for foreign
intelligence collection and foreign counterintelligence investigations conducted by the
Federal Bureau of Investigation, and, with respect to dissemination to an agency of the
United States, only if such information is clearly relevant to the authorized responsibilities of
such agency.
(C) On the dates provided in section 415b of Title 50, the Attorney General shall fully inform
the congressional intelligence committees (as defined in section 401a of Title 50) concerning
all requests made pursuant to this paragraph.
(D) No prohibition of certain disclosure.—
No financial institution, or officer, employee, or agent of such institution, shall disclose to
any person that the Federal Bureau of Investigation has sought or obtained access to a
customer’s or entity’s financial records under this paragraph.
(i) If the Director of the Federal Bureau of Investigation, or his designee in a position
not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in
Charge in a Bureau field office designated by the Director, certifies that otherwise there
may result a danger to the national security of the United States, interference with a
criminal, counterterrorism, or counterintelligence investigation, interference with
diplomatic relations, or danger to the life or physical safety of any person, no financial
institution, or officer, employee, or agent of such institution, shall disclose to any person
(other than those to whom such disclosure is necessary to comply with the request or an
attorney to obtain legal advice or legal assistance with respect to the request) that the
Federal Bureau of Investigation has sought or obtained access to a customer’s or entity’s
financial records under subparagraph (A).
(ii) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under clause (i).
(iii) Any recipient disclosing to those persons necessary to comply with the request or to
an attorney to obtain legal advice or legal assistance with respect to the request shall
inform such persons of any applicable nondisclosure requirement. Any person who
receives a disclosure under this subsection shall be subject to the same prohibitions on
disclosure under clause (i).
(iv) At the request of the Director of the Federal Bureau of Investigation or the designee
of the Director, any person making or intending to make a disclosure under this section
shall identify to the Director or such designee the person to whom such disclosure will be
made or to whom such disclosure was made prior to the request, [but in no circumstance
shall a person be required to inform the Director or such designee that the person intends
to consult an attorney to obtain legal advice or legal assistance] except that nothing in
this section shall require a person to inform the Director or such designee of the
identity of an attorney to whom disclosure was made or will be made to obtain legal
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advice or legal assistance with respect to the request for financial records under
subparagraph (A).
(b)(1) Nothing in this chapter shall prohibit a Government authority from obtaining financial
records from a financial institution if the Government authority determines that delay in obtaining
access to such records would create imminent danger of—
(A) physical injury to any person;
(B) serious property damage; or
(C) flight to avoid prosecution.
(2) In the instances specified in paragraph (1), the Government shall submit to the financial
institution the certificate required in section 3403(b) of this title signed by a supervisory official
of a rank designated by the head of the Government authority.
(3) Within five days of obtaining access to financial records under this subsection, the
Government authority shall file with the appropriate court a signed, sworn statement of a
supervisory official of a rank designated by the head of the Government authority setting forth the
grounds for the emergency access. The Government authority shall thereafter comply with the
notice provisions of section 3409(c) of this title.
(4) The Government authority specified in paragraph (1) shall compile an annual tabulation of
the occasions in which this section was used.
[there is no subsection (c)]
(d) For purposes of this section, and sections 1115 and 1117 [12 U.S.C. 3415, 3417 relating to
cost reimbursement and civil penalties respectively] insofar as they relate to the operation of this
section, the term “financial institution” has the same meaning as in subsections (a)(2) and (c)(1)
of section 5312 of title 31, United States Code, except that, for purposes of this section, such term
shall include only such a financial institution any part of which is located inside any State or
territory of the United States, the District of Columbia, Puerto Rico, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands, or the United States Virgin Islands. [Subsection
(d) was added by subsection 374(a) of the Intelligence Authorization Act for Fiscal Year 2004,
P.L. 108-177, 117 Stat. 2628 (2003).]
18 U.S.C. 2709 (text)
(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
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the request is made that the information sought is relevant to an authorized investigation to
protect against international terrorism or clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely upon the basis of activities
protected by the first amendment to the Constitution of the United States.
(c) Prohibition of certain disclosure.—No wire or electronic communication service provider, or
officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of
Investigation has sought or obtained access to information or records under this section.
(1) If the Director of the Federal Bureau of Investigation, or his designee in a position not lower
than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau
field office designated by the Director, certifies that otherwise there may result a danger to the
national security of the United States, interference with a criminal, counterterrorism, or
counterintelligence investigation, interference with diplomatic relations, or danger to the life or
physical safety of any person, no wire or electronic communications service provider, or officer,
employee, or agent thereof, shall disclose to any person (other than those to whom such
disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal
assistance with respect to the request) that the Federal Bureau of Investigation has sought or
obtained access to information or records under this section.
(2) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under paragraph (1).
(3) Any recipient disclosing to those persons necessary to comply with the request or to an
attorney to obtain legal advice or legal assistance with respect to the request shall inform such
person of any applicable nondisclosure requirement. Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).
(4) At the request of the Director of the Federal Bureau of Investigation or the designee of the
Director, any person making or intending to make a disclosure under this section shall identify to
the Director or such designee the person to whom such disclosure will be made or to whom such
disclosure was made prior to the request, [but in no circumstance shall a person be required to
inform the Director or such designee that the person intends to consult an attorney to obtain legal
advice or legal assistance] except that nothing in this section shall require a person to inform
the Director or such designee of the identity of an attorney to whom disclosure was made or
will be made to obtain legal advice or legal assistance with respect to the request under
subsection (a).
(d) Dissemination by bureau.—The Federal Bureau of Investigation may disseminate information
and records obtained under this section only as provided in guidelines approved by the Attorney
General for foreign intelligence collection and foreign counterintelligence investigations
conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency
of the United States, only if such information is clearly relevant to the authorized responsibilities
of such agency.
(e) Requirement that certain congressional bodies be informed.—On a semiannual basis the
Director of the Federal Bureau of Investigation shall fully inform the Permanent Select
Committee on Intelligence of the House of Representatives and the Select Committee on
Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives
and the Committee on the Judiciary of the Senate, concerning all requests made under subsection
(b) of this section.
(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
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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. 1681u (text)
(a) Identity of financial institutions
Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer
reporting agency shall furnish to the Federal Bureau of Investigation the names and addresses of
all financial institutions (as that term is defined in section 3401 of Title 12) at which a consumer
maintains or has maintained an account, to the extent that information is in the files of the agency,
when presented with a written request for that information, signed by the Director of the Federal
Bureau of Investigation, or the Director’s designee in a position not lower than Deputy Assistant
Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated
by the Director, which certifies compliance with this section. The Director or the Director’s
designee may make such a certification only if the Director or the Director’s designee has
determined in writing, that such information is sought for the conduct of an authorized
investigation to protect against international terrorism or clandestine intelligence activities,
provided that such an investigation of a United States person is not conducted solely upon the
basis of activities protected by the first amendment to the Constitution of the United States.
(b) Identifying information
Notwithstanding the provisions of section 1681b of this title or any other provision of this
subchapter, a consumer reporting agency shall furnish identifying information respecting a
consumer, limited to name, address, former addresses, places of employment, or former places of
employment, to the Federal Bureau of Investigation when presented with a written request, signed
by the Director or the Director’s designee in a position not lower than Deputy Assistant Director
at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by the
Director, which certifies compliance with this subsection. The Director or the Director’s designee
may make such a certification only if the Director or the Director’s designee has determined in
writing that such information is sought for the conduct of an authorized investigation to protect
against international terrorism or clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely upon the basis of activities
protected by the first amendment to the Constitution of the United States.
(c) Court order for disclosure of consumer reports
Notwithstanding section 1681b of this title or any other provision of this subchapter, if requested
in writing by the Director of the Federal Bureau of Investigation, or a designee of the Director in
a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in
Charge in a Bureau field office designated by the Director, a court may issue an order ex parte
directing a consumer reporting agency to furnish a consumer report to the Federal Bureau of
Investigation, upon a showing in camera that the consumer report is sought for the conduct of an
authorized investigation to protect against international terrorism or clandestine intelligence
activities, provided that such an investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment to the Constitution of the United
States.
The terms of an order issued under this subsection shall not disclose that the order is issued for
purposes of a counterintelligence investigation.
(d) Confidentiality
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No consumer reporting agency or officer, employee, or agent of a consumer reporting agency
shall disclose to any person, other than those officers, employees, or agents of a consumer
reporting agency necessary to fulfill the requirement to disclose information to the Federal
Bureau of Investigation under this section, that the Federal Bureau of Investigation has sought or
obtained the identity of financial institutions or a consumer report respecting any consumer under
subsection (a), (b), or (c) of this section, and no consumer reporting agency or officer, employee,
or agent of a consumer reporting agency shall include in any consumer report any information
that would indicate that the Federal Bureau of Investigation has sought or obtained such
information or a consumer report.
(1) If the Director of the Federal Bureau of Investigation, or his designee in a position not lower
than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau
field office designated by the Director, certifies that otherwise there may result a danger to the
national security of the United States, interference with a criminal, counterterrorism, or
counterintelligence investigation, interference with diplomatic relations, or danger to the life or
physical safety of any person, no consumer reporting agency or officer, employee, or agent of a
consumer reporting agency shall disclose to any person (other than those to whom such
disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal
assistance with respect to the request) that the Federal Bureau of Investigation has sought or
obtained the identity of financial institutions or a consumer report respecting any consumer
under subsection (a), (b), or (c), and no consumer reporting agency or officer, employee, or agent
of a consumer reporting agency shall include in any consumer report any information that would
indicate that the Federal Bureau of Investigation has sought or obtained such information on a
consumer report.
(2) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under paragraph (1).
(3) Any recipient disclosing to those persons necessary to comply with the request or to an
attorney to obtain legal advice or legal assistance with respect to the request shall inform such
persons of any applicable nondisclosure requirement. Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).
(4) At the request of the Director of the Federal Bureau of Investigation or the designee of the
Director, any person making or intending to make a disclosure under this section shall identify to
the Director or such designee the person to whom such disclosure will be made or to whom such
disclosure was made prior to the request,[ but in no circumstance shall a person be required to
inform the Director or such designee that the person intends to consult an attorney to obtain legal
advice or legal assistance] except that nothing in this section shall require a person to inform
the Director or such designee of the identity of an attorney to whom disclosure was made or
will be made to obtain legal advice or legal assistance with respect to the request for the
identity of financial institutions or a consumer report respecting any consumer under this
section.
(e) Payment of fees
The Federal Bureau of Investigation shall, subject to the availability of appropriations, pay to the
consumer reporting agency assembling or providing report or information in accordance with
procedures established under this section a fee for reimbursement for such costs as are reasonably
necessary and which have been directly incurred in searching, reproducing, or transporting books,
papers, records, or other data required or requested to be produced under this section.
(f) Limit on dissemination
The Federal Bureau of Investigation may not disseminate information obtained pursuant to this
section outside of the Federal Bureau of Investigation, except to other Federal agencies as may be
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necessary for the approval or conduct of a foreign counterintelligence investigation, or, where the
information concerns a person subject to the Uniform Code of Military Justice, to appropriate
investigative authorities within the military department concerned as may be necessary for the
conduct of a joint foreign counterintelligence investigation.
(g) Rules of construction
Nothing in this section shall be construed to prohibit information from being furnished by the
Federal Bureau of Investigation pursuant to a subpoena or court order, in connection with a
judicial or administrative proceeding to enforce the provisions of this subchapter. Nothing in this
section shall be construed to authorize or permit the withholding of information from the
Congress.
(h) Reports to Congress
(1) On a semiannual basis, the Attorney General shall fully inform the Permanent Select
Committee on Intelligence and the Committee on Banking, Finance and Urban Affairs of the
House of Representatives, and the Select Committee on Intelligence and the Committee on
Banking, Housing, and Urban Affairs of the Senate concerning all requests made pursuant to
subsections (a), (b), and (c) of this section.
(2) In the case of the semiannual reports required to be submitted under paragraph (1) to the
Permanent Select Committee on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate, the submittal dates for such reports shall be as provided
in section 415b of Title 50.
(i) Damages
Any agency or department of the United States obtaining or disclosing any consumer reports,
records, or information contained therein in violation of this section is liable to the consumer to
whom such consumer reports, records, or information relate in an amount equal to the sum of—
(1) $100, without regard to the volume of consumer reports, records, or information involved;
(2) any actual damages sustained by the consumer as a result of the disclosure;
(3) if the violation is found to have been willful or intentional, such punitive damages as a court
may allow; and
(4) in the case of any successful action to enforce liability under this subsection, the costs of the
action, together with reasonable attorney fees, as determined by the court.
(j) Disciplinary actions for violations
If a court determines that any agency or department of the United States has violated any
provision of this section and the court finds that the circumstances surrounding the violation raise
questions of whether or not an officer or employee of the agency or department acted willfully or
intentionally with respect to the violation, the agency or department shall promptly initiate a
proceeding to determine whether or not disciplinary action is warranted against the officer or
employee who was responsible for the violation.
(k) Good-faith exception
Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent
or employee thereof making disclosure of consumer reports or identifying information pursuant to
this subsection in good-faith reliance upon a certification of the Federal Bureau of Investigation
pursuant to provisions of this section shall not be liable to any person for such disclosure under
this subchapter, the constitution of any State, or any law or regulation of any State or any political
subdivision of any State.
(l) Limitation of remedies
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Notwithstanding any other provision of this subchapter, the remedies and sanctions set forth in
this section shall be the only judicial remedies and sanctions for violation of this section.
(m) Injunctive relief
In addition to any other remedy contained in this section, injunctive relief shall be available to
require compliance with the procedures of this section. In the event of any successful action under
this subsection, costs together with reasonable attorney fees, as determined by the court, may be
recovered.
15 U.S.C. 1681v (text)
(a) Disclosure
Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer
reporting agency shall furnish a consumer report of a consumer and all other information in a
consumer’s file to a government agency authorized to conduct investigations of, or intelligence or
counterintelligence activities or analysis related to, international terrorism when presented with a
written certification by such government agency that such information is necessary for the
agency’s conduct or such investigation, activity or analysis.
(b) Form of certification
The certification described in subsection (a) shall be signed by a supervisory official designated
by the head of a Federal agency or an officer of a Federal agency whose appointment to office is
required to be made by the President, by and with the advice and consent of the Senate.
(c) Confidentiality
No consumer reporting agency, or officer, employee, or agent of such consumer reporting agency,
shall disclose to any person, or specify in any consumer report, that a government agency has
sought or obtained access to information under subsection (a).
(1) If the head of a government agency authorized to conduct investigations of intelligence or
counterintelligence activities or analysis related to international terrorism, or his designee,
certifies that otherwise there may result a danger to the national security of the United States,
interference with a criminal, counterterrorism, or counterintelligence investigation, interference
with diplomatic relations, or danger to the life or physical safety of any person, no consumer
reporting agency or officer, employee, or agent of such consumer reporting agency, shall disclose
to any person (other than those to whom such disclosure is necessary to comply with the request
or an attorney to obtain legal advice or legal assistance with respect to the request), or specify in
any consumer report, that a government agency has sought or obtained access to information
under subsection (a).
(2) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under paragraph (1).
(3) Any recipient disclosing to those persons necessary to comply with the request or to any
attorney to obtain legal advice or legal assistance with respect to the request shall inform such
persons of any applicable nondisclosure requirement. Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).
(4) At the request of the authorized Government agency, any person making or intending to make
a disclosure under this section shall identify to the requesting official of the authorized
Government agency the person to whom such disclosure will be made or to whom such disclosure
was made prior to the request, [but in no circumstance shall a person be required to inform such
requesting official that the person intends to consult an attorney to obtain legal advice or legal
assistance] except that nothing in this section shall require a person to inform the requesting
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official of the identity of an attorney to whom disclosure was made or will be made to obtain
legal advice or legal assistance with respect to the request for information under subsection
(a).
(d) Rule of construction
Nothing in section 1681u of this title shall be construed to limit the authority of the Director of
the Federal Bureau of Investigation under this section.
(e) Safe harbor
Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent
or employee thereof making disclosure of consumer reports or other information pursuant to this
section in good-faith reliance upon a certification of a governmental agency pursuant to the
provisions of this section shall not be liable to any person for such disclosure under this
subchapter, the constitution of any State, or any law or regulation of any State or any political
subdivision of any State.
(f) Reports to Congress- (1) On a semi-annual basis, the Attorney General shall fully inform the
Committee on the Judiciary, the Committee on Financial Services, and the Permanent Select
Committee on Intelligence of the House of Representatives and the Committee on the Judiciary,
the Committee on Banking, Housing, and Urban Affairs, and the Select Committee on Intelligence
of the Senate concerning all requests made pursuant to subsection (a).
(2) In the case of the semiannual reports required to be submitted under paragraph (1) to the
Permanent Select Committee on Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate, the submittal dates for such reports shall be as provided
in section 507 of the National Security Act of 1947 (50 U.S.C. 415b).
Section 802 of the National Security Act (50 U.S.C. 3162) (text)
(a) Generally
(1) Any authorized investigative agency may request from any financial agency, financial
institution, or holding company, or from any consumer reporting agency, such financial records,
other financial information, and consumer reports as may be necessary in order to conduct any
authorized law enforcement investigation, counterintelligence inquiry, or security determination.
Any authorized investigative agency may also request records maintained by any commercial
entity within the United States pertaining to travel by an employee in the executive branch of
Government outside the United States.
(2) Requests may be made under this section where—
(A) the records sought pertain to a person who is or was an employee in the executive branch
of Government required by the President in an Executive order or regulation, as a condition
of access to classified information, to provide consent, during a background investigation and
for such time as access to the information is maintained, and for a period of not more than
three years thereafter, permitting access to financial records, other financial information,
consumer reports, and travel records; and
(B)(i) there are reasonable grounds to believe, based on credible information, that the person
is, or may be, disclosing classified information in an unauthorized manner to a foreign power
or agent of a foreign power;
(ii) information the employing agency deems credible indicates the person has incurred
excessive indebtedness or has acquired a level of affluence which cannot be explained by
other information known to the agency; or
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(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, other than those officers,
employees, or agents of such entity necessary to satisfy a request made under this section, that
such entity has received or satisfied a request made by an authorized investigative agency under
this section.
(1) If an authorized investigative agency described in subsection (a) certifies that otherwise there
may result a danger to the national security of the United States, interference with a criminal,
counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or
danger to the life or physical safety of any person, no governmental or private entity, or officer,
employee, or agent of such entity, may disclose to any person (other than those to whom such
disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal
assistance with respect to the request) that such entity has received or satisfied a request made by
an authorized investigative agency under this section.
(2) The request shall notify the person or entity to whom the request is directed of the
nondisclosure requirement under paragraph (1).
(3) Any recipient disclosing to those persons necessary to comply with the request or to an
attorney to obtain legal advice or legal assistance with respect to the request shall inform such
persons of any applicable nondisclosure requirement. Any person who receives a disclosure under
this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).
(4) At the request of the authorized investigative agency, any person making or intending to make
a disclosure under this section shall identify to the requesting official of the authorized
investigative agency the person to whom such disclosure will be made or to whom such disclosure
was made prior to the request, [but in no circumstance shall a person be required to inform such
official that the person intends to consult an attorney to obtain legal advice or legal assistance]
except that nothing in this section shall require a person to inform the requesting official of
the identity of an attorney to whom disclosure was made or will be made to obtain legal
advice or legal assistance with respect to the request under subsection (a).
(c) Records or information; inspection or copying
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(1) Notwithstanding any other provision of law (other than section 6103 of Title 26), an entity
receiving a request for records or information under subsection (a) of this section shall, if the
request satisfies the requirements of this section, make available such records or information
within 30 days for inspection or copying, as may be appropriate, by the agency requesting such
records or information.
(2) Any entity (including any officer, employee, or agent thereof) that discloses records or
information for inspection or copying pursuant to this section in good faith reliance upon the
certifications made by an agency pursuant to this section shall not be liable for any such
disclosure to any person under this subchapter, the constitution of any State, or any law or
regulation of any State or any political subdivision of any State.
(d) Reimbursement of costs
Any agency requesting records or information under this section may, subject to the availability
of appropriations, reimburse a private entity for any cost reasonably incurred by such entity in
responding to such request, including the cost of identifying, reproducing, or transporting records
or other data.
(e) Dissemination of records or information received
An agency receiving records or information pursuant to a request under this section may
disseminate the records or information obtained pursuant to such request outside the agency
only—
(1) to the agency employing the employee who is the subject of the records or information;
(2) to the Department of Justice for law enforcement or counterintelligence purposes; or
(3) with respect to dissemination to an agency of the United States, if such information is clearly
relevant to the authorized responsibilities of such agency.
(f) Construction of section
Nothing in this section may be construed to affect the authority of an investigative agency to
obtain information pursuant to the Right to Financial Privacy Act (12 U.S.C. 3401 et seq.) or the
Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).
18 U.S.C. 1510 (text)
* * *
(e) Whoever, having been notified of the applicable disclosure prohibitions or confidentiality
requirements of section 2709(c)(1) of this title, section 626(d)(1) or 627(c)(1) of the Fair Credit
Reporting Act (15 U.S.C. 1681u(d)(1) or 1681v(c)(1)), section 1114(a)(3)(A) or 1114(a)(5)(D)(i)
of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(3)(A) or 3414(a)(5)(D)(i)), or section
802(b)(1) of the National Security Act of 1947 (50 U.S.C. [3162](b)(1)), knowingly and with the
intent to obstruct an investigation or judicial proceeding violates such prohibitions or
requirements applicable by law to such person shall be imprisoned for not more than five years,
fined under this title, or both.
P.L. 109-177, Section 118 (text)
Reports on National Security Letters.
(a) Existing Reports—Any report made to a committee of Congress regarding national security
letters under section 2709(c)(1) of title 18, United States Code, sections 626(d) or 627(c) of the
Fair Credit Reporting Act (15 U.S.C. 1681u(d) or 1681v(c)), section 1114(a)(3) or 1114(a)(5)(D)
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of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(3) or 3414(a)(5)(D)), or section 802(b)
of the National Security Act of 1947 (50 U.S.C. [3162](b)) shall also be made to the Committees
on the Judiciary of the House of Representatives and the Senate.
* * *
(c) Report on Requests for National Security Letters-
(1) IN GENERAL- In April of each year, the Attorney General shall submit to Congress an
aggregate report setting forth with respect to the preceding year the total number of requests
made by the Department of Justice for information concerning different United States persons
under—
(A) section 2709 of title 18, United States Code (to access certain communication service
provider records), excluding the number of requests for subscriber information;
(B) section 1114 of the Right to Financial Privacy Act (12 U.S.C. 3414) (to obtain financial
institution customer records);
(C) section 802 of the National Security Act of 1947 (50 U.S.C. [3162]) (to obtain financial
information, records, and consumer reports);
(D) section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) (to obtain certain
financial information and consumer reports); and
(E) section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) (to obtain credit agency
consumer records for counterterrorism investigations).
(2) UNCLASSIFIED FORM- The report under this section shall be submitted in unclassified
form.
(d) National Security Letter Defined- In this section, the term ‘national security letter’ means a
request for information under one of the following provisions of law:
(1) Section 2709(a) of title 18, United States Code (to access certain communication service
provider records).
(2) Section 1114(a)(5)(A) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)(A)) (to
obtain financial institution customer records).
(3) Section 802 of the National Security Act of 1947 (50 U.S.C.[3162]) (to obtain financial
information, records, and consumer reports).
(4) Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) (to obtain certain financial
information and consumer reports).
(5) Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) (to obtain credit agency
consumer records for counterterrorism investigations).
P.L. 109-177, Section 119 (text)
Audit of Use of National Security Letters.
(a) Audit—The Inspector General of the Department of Justice shall perform an audit of the
effectiveness and use, including any improper or illegal use, of national security letters issued by
the Department of Justice.
(b) Requirements- The audit required under subsection (a) shall include—
(1) an examination of the use of national security letters by the Department of Justice during
calendar years 2003 through 2006;
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(2) a description of any noteworthy facts or circumstances relating to such use, including any
improper or illegal use of such authority; and
(3) an examination of the effectiveness of national security letters as an investigative tool,
including—
(A) the importance of the information acquired by the Department of Justice to the
intelligence activities of the Department of Justice or to any other department or agency of
the Federal Government;
(B) the manner in which such information is collected, retained, analyzed, and disseminated
by the Department of Justice, including any direct access to such information (such as access
to ‘raw data’) provided to any other department, agency, or instrumentality of Federal, State,
local, or tribal governments or any private sector entity;
(C) whether, and how often, the Department of Justice utilized such information to produce
an analytical intelligence product for distribution within the Department of Justice, to the
intelligence community (as such term is defined in section 3(4) of the National Security Act of
1947 (50 U.S.C. 401a(4))), or to other Federal, State, local, or tribal government
departments, agencies, or instrumentalities;
(D) whether, and how often, the Department of Justice provided such information to law
enforcement authorities for use in criminal proceedings;
(E) with respect to national security letters issued following the date of the enactment of this
Act, an examination of the number of occasions in which the Department of Justice, or an
officer or employee of the Department of Justice, issued a national security letter without the
certification necessary to require the recipient of such letter to comply with the nondisclosure
and confidentiality requirements potentially applicable under law; and
(F) the types of electronic communications and transactional information obtained through
requests for information under section 2709 of title 18, United States Code, including the
types of dialing, routing, addressing, or signaling information obtained, and the procedures
the Department of Justice uses if content information is obtained through the use of such
authority.
(c) Submission Dates-
(1) PRIOR YEARS- Not later than one year after the date of the enactment of this Act, or upon
completion of the audit under this section for calendar years 2003 and 2004, whichever is earlier,
the Inspector General of the Department of Justice shall submit to the Committee on the
Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives
and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a
report containing the results of the audit conducted under this subsection for calendar years 2003
and 2004.
(2) CALENDAR YEARS 2005 AND 2006- Not later than December 31, 2007, or upon completion
of the audit under this subsection for calendar years 2005 and 2006, whichever is earlier, the
Inspector General of the Department of Justice shall submit to the Committee on the Judiciary
and the Permanent Select Committee on Intelligence of the House of Representatives and the
Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report
containing the results of the audit conducted under this subsection for calendar years 2005 and
2006.
(d) Prior Notice to Attorney General and Director of National Intelligence; Comments-
(1) NOTICE- Not less than 30 days before the submission of a report under subsections (c)(1) or
(c)(2), the Inspector General of the Department of Justice shall provide such report to the
Attorney General and the Director of National Intelligence.
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(2) COMMENTS- The Attorney General or the Director of National Intelligence may provide
comments to be included in the reports submitted under subsections (c)(1) or (c)(2) as the
Attorney General or the Director of National Intelligence may consider necessary.
(e) Unclassified Form- The reports submitted under subsections (c)(1) or (c)(2) and any
comments included under subsection (d)(2) shall be in unclassified form, but may include a
classified annex.
(f) Minimization Procedures Feasibility- Not later than February 1, 2007, or upon completion of
review of the report submitted under subsection (c)(1), whichever is earlier, the Attorney General
and the Director of National Intelligence shall jointly submit to the Committee on the Judiciary
and the Permanent Select Committee on Intelligence of the House of Representatives and the
Committee on the Judiciary and the Select Committee on Intelligence of the Senate a report on
the feasibility of applying minimization procedures in the context of national security letters to
ensure the protection of the constitutional rights of United States persons.
(g) National Security Letter Defined- In this section, the term ‘national security letter’ means a
request for information under one of the following provisions of law:
(1) Section 2709(a) of title 18, United States Code (to access certain communication service
provider records).
(2) Section 1114(a)(5)(A) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)(A)) (to
obtain financial institution customer records).
(3) Section 802 of the National Security Act of 1947 (50 U.S.C. 436) (to obtain financial
information, records, and consumer reports).
( 4) Section 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u) (to obtain certain financial
information and consumer reports).
(5) Section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v) (to obtain credit agency
consumer records for counterterrorism investigations).
18 U.S.C. 3511 (text)
(a) The recipient of a request for records, a report, or other information under section 2709(b) of
this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A)
of the Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947 may,
in the United States district court for the district in which that person or entity does business or
resides, petition for an order modifying or setting aside the request. The court may modify or set
aside the request if compliance would be unreasonable, oppressive, or otherwise unlawful.
(b)(1) The recipient of a request for records, a report, or other information under section 2709(b)
of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section
1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National Security Act
of 1947, may petition any court described in subsection (a) for an order modifying or setting
aside a nondisclosure requirement imposed in connection with such a request.
(2) If the petition is filed within one year of the request for records, a report, or other information
under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting
Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National
Security Act of 1947, the court may modify or set aside such a nondisclosure requirement if it
finds that there is no reason to believe that disclosure may endanger the national security of the
United States, interfere with a criminal, counterterrorism, or counterintelligence investigation,
interfere with diplomatic relations, or endanger the life or physical safety of any person. If, at the
time of the petition, the Attorney General, Deputy Attorney General, an Assistant Attorney
General, or the Director of the Federal Bureau of Investigation, or in the case of a request by a
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department, agency, or instrumentality of the Federal Government other than the Department of
Justice, the head or deputy head of such department, agency, or instrumentality, certifies that
disclosure may endanger the national security of the United States or interfere with diplomatic
relations, such certification shall be treated as conclusive unless the court finds that the
certification was made in bad faith.
(3) If the petition is filed one year or more after the request for records, a report, or other
information under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit
Reporting Act, section 1114 (a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of
the National Security Act of 1947, the Attorney General, Deputy Attorney General, an Assistant
Attorney General, or the Director of the Federal Bureau of Investigation, or his designee in a
position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in
Charge in a Bureau field office designated by the Director, or in the case of a request by a
department, agency, or instrumentality of the Federal Government other than the Federal Bureau
of Investigation, the head or deputy head of such department, agency, or instrumentality, within
ninety days of the filing of the petition, shall either terminate the nondisclosure requirement or re-
certify that disclosure may result in a danger to the national security of the United States,
interference with a criminal, counterterrorism, or counterintelligence investigation, interference
with diplomatic relations, or danger to the life or physical safety of any person. In the event of re-
certification, the court may modify or set aside such a nondisclosure requirement if it finds that
there is no reason to believe that disclosure may endanger the national security of the United
States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere
with diplomatic relations, or endanger the life or physical safety of any person. If the
recertification that disclosure may endanger the national security of the United States or interfere
with diplomatic relations is made by the Attorney General, Deputy Attorney General, an Assistant
Attorney General, or the Director of the Federal Bureau of Investigation, such certification shall
be treated as conclusive unless the court finds that the recertification was made in bad faith. If the
court denies a petition for an order modifying or setting aside a nondisclosure requirement under
this paragraph, the recipient shall be precluded for a period of one year from filing another
petition to modify or set aside such nondisclosure requirement.
(c) In the case of a failure to comply with a request for records, a report, or other information
made to any person or entity under section 2709(b) of this title, section 626(a) or (b) or 627(a) of
the Fair Credit Reporting Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or
section 802(a) of the National Security Act of 1947, the Attorney General may invoke the aid of
any district court of the United States within the jurisdiction in which the investigation is carried
on or the person or entity resides, carries on business, or may be found, to compel compliance
with the request. The court may issue an order requiring the person or entity to comply with the
request. Any failure to obey the order of the court may be punished by the court as contempt
thereof. Any process under this section may be served in any judicial district in which the person
or entity may be found.
(d) In all proceedings under this section, subject to any right to an open hearing in a contempt
proceeding, the court must close any hearing to the extent necessary to prevent an unauthorized
disclosure of a request for records, a report, or other information made to any person or entity
under section 2709(b) of this title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting
Act, section 1114(a)(5)(A) of the Right to Financial Privacy Act, or section 802(a) of the National
Security Act of 1947. Petitions, filings, records, orders, and subpoenas must also be kept under
seal to the extent and as long as necessary to prevent the unauthorized disclosure of a request for
records, a report, or other information made to any person or entity under section 2709(b) of this
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title, section 626(a) or (b) or 627(a) of the Fair Credit Reporting Act, section 1114(a)(5)(A) of the
Right to Financial Privacy Act, or section 802(a) of the National Security Act of 1947.
(e) In all proceedings under this section, the court shall, upon request of the government, review
ex parte and in camera any government submission or portions thereof, which may include
classified information.
Author Contact Information
Charles Doyle
Senior Specialist in American Public Law
cdoyle@crs.loc.gov, 7-6968
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