National Security letters: Why Reform is Necessary

Home de•novo Articles Featured Articles National Security letters: Why Reform is Necessary
National Security letters: Why Reform is Necessary
Desirae L. Wells

2012 Cardozo L. Rev. de novo 216
Download This Article


A National Security Letter (“NSL”) is a form letter signed by an FBI Agent, with no judicial approval, compelling disclosure of sensitive information held by banks, credit companies, telephone carriers and Internet Service Providers. NSLs provide the Government with an extraordinary power and are controversial because of this extraordinary power. This power has been expanded under the Patriot Act. There has been much opposition to NSLs. Some argue that NSLs are an "unreasonable" search and seizure of customer records and thus a violation of the Fourth Amendment; the scope of NSLs is overreaching and unwarranted; NSLs are coercive in nature and the requirement of secrecy is dangerous; and most importantly, the lack of judicial oversight is unconstitutional. Essentially, opponents argue that we must not impede on our constitutional rights in the name of “protecting the country from terrorists.”1
However, there is also much support for NSLs. Proponents argue that NSLs serve as a key tool in allowing the FBI to follow leads when the target of an NSL is not necessarily the target of the investigation. NSLs assist the FBI in collecting information sufficient to eliminate concerns about investigative subjects and close national security investigations with a greater degree of confidence. Thus, in this post 9/11 world, national security is so important that extraordinary measures must be taken to protect its citizens. But can there be a balance? Are NSLs illegal, unwarranted searches that violate the First and Fourth Amendments, or are NSLs a necessary and highly effective counter terrorism and counterintelligence tool needed in this Post 9/11 area? Is there a way to improve NSLs so that they function as a [Page 217] necessary tool for the government while protecting the rights of citizens at the same time?
The answer is two-fold. As written, NSLs arguably violate tenets of the Constitution. They are intrusive in scope and method, they are coercive in nature and the secrecy surrounding the scope of their use and their operation complicates any effort at reform. Can they be improved? Yes, with precision and depth. Some statutes must be repealed and others may be simply enhanced with explicit protections for individual liberties. Admittedly, we want a government that is focused on protecting its citizens against terrorism in this post 9/11 world. However, we as citizens should not have to sacrifice our individual rights and privacy afforded under the Constitution to meet these tasks.
In this paper, I will describe the NSL statutes, the arguments for and against NSLs, how NSLs were used both pre and post 9/11 and detail suggested recommendations as to how NSLs can be improved.


The use of NSL statutes can provide the FBI with a wealth of information. There are four specific types of information that can be obtained by NSLs. Telephone Records can be obtained through NSLs. This includes “Toll records”, which are historical records of calls made and received from land lines, cell phones and other sources, of a specified phone number as well as billing records associated with that number.2
NSLs can also be used to obtain Email Records. Email records consist of email addresses and screen names associated with the requested account and the email addresses and screen names that have contacted that account. This also includes billing records and methods of payment for each account.3
Financial Records are also obtainable through NSLs. Financial Records consist of financial information, including open and closed checking and savings accounts, from Financial Institutions. Financial Institutions are defined under the statute as an expansive list of institutions, including but not limited to banks, private bankers, credit unions, thrift institutions, brokers and dealers, investment bankers and companies, credit card companies, insurance companies, travel [Page 218] agencies, casinos and others.4 A complete list is outlined in 31 U.S.C. § 5312(2).
Credit information is also available through NSLs. The FBI can request Credit information including full credit reports plus the names and addresses of all financial institutions at which the customer has maintained an account. The FBI can also request identifying information of a consumer; however, this information is limited to name, address, former addresses and past and current employers of the individual.5
Lastly, the Government would like to expand the list of information obtainable to include "electronic communication transactional records." This information would include the addresses to which an Internet user sends e-mail; the times and dates e-mail were sent and received; and possibly a user's browser history. However, it would not include the "content" of e-mail or other Internet communication.6
Prior to the USA Patriot Act, there were four (4) NSL statutes that authorized the Federal Bureau of Investigation (“FBI”) to request certain categories of information held by third parties as part of authorized national security investigations. The first NSL statute was enacted in 1978. The Right to Financial Privacy Act (“RFPA”) of 19787 was a response to the Supreme Court decision in United States v. Miller, which held that a defendant “had no protectable Fourth Amendment interest in their subpoenaed bank records.”8 Congress, concerned that the breadth of police power could intrude into the sanctuary of individuals’ finances, passed RFPA as a preventative measure.9 As originally enacted, RFPA required that government agencies provide targeted individuals with advance notice and an opportunity to challenge the request before a disclosure of personal financial information was made to law enforcement,. However, the FBI grew frustrated because they felt this legislation hindered their investigation efforts and sought relief from Congress. Congress responded in 1986 with amendments to RFPA that included an exception to the advance notice requirement.10 The exception authorized the FBI to obtain financial records in foreign [Page 219] counterintelligence cases where the agency had “specific and articulable facts giving reason to believe that the customer or entity whose records are sought is a foreign power or an agent of a foreign power.”11 Under this exception, government agents could request financial records if a designated supervisor certified their request. These disclosures were not mandatory. However, the recipient was forbidden from disclosing the request itself but there was no penalty for violating such disclosure. The drafters of the Act intended that requests under this exception would be used sparingly and explicitly warned that “investigation proceedings only under the rubric of ‘national security’ do not qualify for the exception.12
The second NSL statute was enacted in 1986. The Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2709 allowed the FBI to obtain telephone and email information from telephone companies and other communication service providers. The FBI was granted access to historical information on telephone calls made and received from a specified number and billing records associated with that number. They could also get emails, screen names and billing records for electronic communication services along with subscriber information associated with an individual’s phone or email account.13 Prior to this NSL statute, ECPA forbade government agencies from obtaining “stored electronic communications information” without the customer’s permission, unless it did so “through compulsory process, such as a subpoena, warrant or court order.” Under the ECPA NSL, Government agencies could issue requests to “wire or electronic communication service providers.” The ECPA NSL limited the type of information to “subscriber information and toll billing records information.” The Act also limited the types of investigations in which the FBI could use NSLs. The FBI had to certify both that: a) the information was “relevant to an authorized foreign counterintelligence investigation” and b) there were “specific articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power.” This NSL limited who could provide such certification: only the Director of the FBI, “or an individual within the FBI designated for this purpose by the Director.” It included a non-disclosure provision and limitations on dissemination. Lastly, the ECPA NSL had no enforcement provision and did not include any penalties for non-compliance.
[Page 220] The next NSL statute was enacted in 1994. The National Security Act (“NSA”) was crafted in the wake of the Aldrich Ames espionage case to serve as a deterrent to espionage for financial gain and to aid in espionage investigations.14 The NSA authorized NSLs to be issued in association with the investigation of improper disclosure of classified information by government employees. In comparison to previous statutes, it reached a wider range of potential recipients at the demand of a large group of federal officials, but for a more limited purpose. It rested the obligation to provide consumer reports, together with financial information and records, upon consumer reporting agencies, financial agencies, and financial institutions or holding companies.15This NSA NSL contained dissemination restrictions, a safe harbor (immunity) provision for recipients and a nondisclosure provision. However, it did not include a mechanism for judicial enforcement nor an explicit penalty for improper disclosure.
The last NSL statute was enacted in 1996. The Fair Credit Reporting Act (“FCRA”) authorizes the FBI to issue NSLs to obtain a consumer’s credit history information from credit reporting agencies, including the names and addresses of all financial institutions at which the consumer maintains or has maintained an account.16 The FBI may also request a consumer’s identifying information, limited to name, address, former address and both current and past employers.17This FCRA NSL contained dissemination restrictions, a safe harbor (immunity) provision for recipients and a nondisclosure provision. However, it did not include a mechanism for judicial enforcement nor an explicit penalty for improper disclosure.
For many years, the NSL statutes seemed to be working well. There were no constitutional challenges and then the world changed on September 11, 2001.
Americans were fearful after 9/11. The FBI was pleading for extraordinary measures in this unprecedented, extraordinary time in our history. Congress, responding to political and practical pressures, hurriedly passed the USA Patriot Act. The Patriot Act gave law enforcement unprecedented powers. Congress amended the NSL statutes via Section 505 of the USA Patriot Act.18 The premise was to allow NSL authority to be employed more efficiently. The USA Patriot Act altered the FBI’s NSL authority under Section 2709, the RFPA and [Page 221] the FCRA in several ways. It expanded issuing authority to include the heads of FBI offices (Special Agents in charge (“SACs”)). Previously the issuing authority had been centralized to only the FBI Director or a Senior FBI official. It eliminated the requirement of “specific and articulable facts demonstrating a nexus to a foreign power or its agents”—which was a “reason to believe” standard—and instead required that the information was “sought for or relevant to various national security investigations,”—a much lower “relevant to” standard. It also directed that no NSL related investigation of a “U.S.” person (American citizen or foreign resident alien) be predicated exclusively on First Amendment protected activities.19 The NSA NSL section remained unchanged, but section 358(g) of the USA Patriot Act added a completely new FCRA NSL section. The Fair Credit Reporting Act (“FCRA”) NSL section 627, 15 U.S.C. 1681v obligated customer reporting agencies to provide consumer information and reports to a federal agency “authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism.”20 Senior federal agency officials were empowered to issue the NSL with a certification that the information was “necessary for the agency’s conduct or such investigation, activity or analysis.”21


Passage of the Patriot Act had three significant consequences. First, because the power reach of NSLs had significantly expanded, a serious debate began about their validity. Second, its passage emboldened Congress to expand the use of NSLs even further. Finally, the debate reached such a crescendo that constitutional challenges in the form of litigation ensued.

A. Increased Debate & Scrutiny

The passage of the Patriot Act caused NSLs to be the subject of much debate and controversy. There are two main opposing viewpoints. The chief viewpoint of advocates of NSLs, mainly the FBI, is that NSLs are a necessary and highly effective counter terrorism and counterintelligence tool needed in this Post 9/11 era. As outlined in Part I, NSLs have a long history and in fact predate 9/11. Historically, the [Page 222] scope of NSLs was limited to mundane business records,22 and the Supreme Court in Smith v. Maryland has already stated that federal authorities do not need a warrant for these records since because no reasonable expectation of privacy may exist in records that have been exposed to third parties.23 They also contend that evidence is routinely obtained in police and grand jury investigations with no signoffs from high level officials who could be held accountable, whereas in NSLs you at least have an FBI official formally affirming the letter’s necessity. NSLs, it is argued, are the necessary first step to support Foreign Intelligence Surveillance Act applications for electronic surveillance, physical searches or pen registers/trap and trace orders24. Similarly, often the target of an NSL is not necessarily the main target of an investigation and an NSL thus serves as a key tool in allowing the FBI to follow leads.25In sum, supporters argue that NSLs are a vital tool in the ongoing effort to keep Americans safe.
Opponents of NSLs have a very different outlook. Their chief viewpoint is that NSLs are illegal, unwarranted searches that violate the First and the Fourth Amendment of the U.S. Constitution. The ACLU argues that NSLs don’t work because they allow the FBI to obtain certain kinds of sensitive personal records without obtaining a court order, effecting a complete absence of judicial oversight and thereby allowing the FBI free reign.26 In addition, the non-disclosure requirement in NSLs is an impediment on free speech.27 NSLs breed excessive secrecy and excessive secrecy imposes significant social costs on society. Meaningful judicial review of government secrecy is necessary to prevent overreaching because the secrecy surrounding the FBIs use of NSLs is excessive and dangerous.28 Lastly, and most importantly, they argue that the FBI has misused its NSL power and needs some accountability.
Passage of the Patriot Act also made Congress re-assess exactly how they were using NSLs. The NSLs power to compel the disclosure of sensitive information is grounded in the power that is afforded an Administrative subpoena. During the 108th Congress, President Bush urged Congress to expand and reinforce statutory authority to use [Page 223] administrative subpoenas and NSLs in criminal and foreign intelligence investigations and legislation was introduced for that purpose:

Congress should change the law, and give law enforcement officials the same tools they have to fight terror to fight other crime. Here’s some examples: Administrative subpoenas, which enable law enforcement officials to obtain certain records quickly, are critical to many investigations. They’re used in a wide range of criminal and civil matters, including health care fraud and child abuse cases. Yet, incredibly enough, in terrorism cases, where speed is often of the essence, officials lack the authority to use administrative subpoenas. If we can use these subpoenas to catch crooked doctors, then Congress should allow law enforcement officials to use them to catch terrorists.29
There was much deliberation in Congress about the expanded use of administrative subpoena/NSL power. Those in favor of this expanded use emphasized the effectiveness of administrative subpoenas/NSLs as an investigative tool in criminal and foreign intelligence investigations and argued that they should be available for terrorism investigations.30 Advocates contended that NSLs: do not ordinarily require probable cause and consequently can be used from the beginning of an inquiry to gather information;31 can be used to gather information held by third parties other than the target of an inquiry;32 often can encourage the cooperation of third parties by providing immunity for cooperation similar to that available in a judicial context;33 can make third parties subject to nondisclosure requirements thereby reducing the possibility that the target of an investigation will flee, [Page 224] destroy evidence, or intimidate witnesses;34 and can be made judicially enforceable to ensure compliance and to safeguard against abuse.35 Furthermore, supporters argue that NSLs are less intrusive than search warrants in that material is gathered and delivered by the third party entity rather than seized by the government. Likewise there is ordinarily an interval between the time of service of the subpoena and the time for compliance, allowing parties to consult an attorney.36 NSLs can be more easily and quickly used than grand jury subpoenas, but are otherwise similar,37 and are now available for investigations relating to some crimes and no obvious reason exists to explain why they should not be made available for equally serious criminal investigations.38
However, there were many effective arguments against using administrative subpoenas/NSLs in the context of a criminal or foreign intelligence investigation. Use of NSLs in this context are more likely to lead to unjustified intrusions of privacy;39 seem to replicate and expand existing NSL authority, without an explanation as to why additional authority is needed;40 and lack the judicial safeguards that accompany the issuance of a search warrant, probable cause and issuance by a neutral magistrate, among other things.41 NSLs generally lack the safeguards that accompany the issuance of a grand jury subpoena in that NSLs are ordinarily not subject to a motion to quash or to the necessary participation of an Assistant United States Attorney.42 As compared to NSLs issued via government agencies, the extensive powers available to the grand jury are justified in part because the grand jury acts as a buffer against the abuse of governmental authority.43 On a financial level, NSLs can be extremely expensive and disruptive for the person or entity to whom they are addressed long before the thresholds of overbreadth or oppression (the point at which a subpoena will not be enforced) are reached.44 Further, they are subject to easy abuse when [Page 225] they are issued against third parties who may have little interest in contesting legitimacy;45 who are granted immunity from civil liability for the disclosures;46 and who are subject to the permanent gag orders precluding disclosure to targets who might otherwise contest the abuse.47 Finally, NSLs are frequently sought for their speed, an environment which often breeds mistakes.48
B. Litigation and Constitutional Challenges

Passage of the Patriot Act also invited challenges to the now-expanded NSLs’ constitutionality.
In Doe v. Ashcroft, the Court invalidated 18 U.S.C. § 2709, a statute that allowed the FBI to subpoena an individual’s Internet and telephone records based on the individual subscriber’s suspected terrorist activities.49 The court found that no reading of the statute could repair the practically coercive power of the NSL. The crux of the problem was that the NSL fatally combined secrecy and coercion. The court feared that without its intervention NSLs would continue to allow unchecked government power because the language and tone of the letter would coerce any recipient into complying. Therefore, the court held that the NSLs coercive tone, aggravated by a perceived lack of judicial review, violated Doe’s Fourth Amendment rights.50 With regard to the First Amendment question, the court concluded §2709(c) constituted both a prior restraint and a content-based limit on speech.51 On appeal, this case was sent back for reconsideration in light of amendments to the statute.
In Doe v. Gonzales, Doe sought a preliminary injunction barring enforcement of § 2709(c)’s nondisclosure provision.52 The Doe court never addressed the Fourth Amendment issue and reached the same conclusion on the First Amendment issue: narrowly defined, the government’s interest was not compelling; broadly defined, the restraints and restrictions of § 2709(b) which served that interest lacked the narrow tailoring necessary to survive constitutional strict scrutiny. On appeal, the case was dismissed as moot because the FBI rescinded their NSL request.
A proper Fourth Amendment analysis was not done in either case. A true Fourth Amendment analysis is a two-part test. First, was [Page 226] there a search or seizure within the meaning of the Fourth Amendment?53 In order to find a search or seizure, the government action must be found to invade a reasonable privacy interest.54 Second, if the court recognizes that a search or seizure indeed occurred, it considers whether it was reasonable under the circumstances,55 balancing the government’s need for the information against the individual’s privacy and possessory interests.56
The use of NSLs do not necessarily constitute a “search or seizure.” The government does not enter private property to make a search/inspection, instead the government demands that the recipient of the subpoena deliver documents to the government. Even if one were to call this an effective search or seizure, the Supreme Court has held that customers had no Fourth Amendment protected privacy rights in the records a telephone company maintained relating to their telephone use.57 Likewise, in Doe v. Ashcroft, the court clarified that the Fourth Amendment rights at issue were those of the internet service provider (ISP), not the target of the FBI’s investigation.58 The court determined that the target had very limited privacy interests in the information he had voluntarily conveyed and exposed to a third party (his ISP). Under the court’s analysis, Doe had seemingly greater privacy rights than the target because Doe had not exposed the records and was contractually obligated to protect the anonymity of its client. Thus, the court found there was no effective search or seizure against the target and the target had no reasonable privacy interest for the government to invade.
The district court then examined the reasonableness of the NSL as an administrative subpoena under the Fourth Amendment:

While the Fourth Amendment reasonableness standard is permissive in the context of the administrative subpoenas, the constitutionality of the administrative subpoena is predicated on the availability of a neutral [Page 227] tribunal to determine, after a subpoena issued, whether the subpoena actually complies with the Fourth amendment’s demands. In contrast to an actual physical search, which must be justified by the warrant and probable cause requirements occurring before the search, an administrative subpoena “is regulated by and its justification derives from, “judicial process” available after the subpoena is issued.
Accordingly, the Supreme Court has held that an administrative subpoena “may not be made and enforced” by the administrative agency; rather, the subpoenaed party must be able to “obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.” In sum, longstanding Supreme Court doctrine makes clear that an administrative subpoena statute is consistent with the Fourth Amendment when it is subject to “judicial supervision” and “surrounded by every safeguard of judicial restraint.”59

Therefore, NSLs did not meet the reasonableness standard set forth by the Supreme Court without judicial review. Subsequently, the statute was amended to cure this defect.
On appeal, the Second Circuit again only addressed the First Amendment issue, leaving the Fourth Amendment concern untouched.60 The Court concluded that the government could invoke the secrecy and judicial review authority of the 18 U.S.C. § 2709 and 18 U.S.C. § 3511 in a limited and constitutionally permissible manner. The court saw no reason to invalidate sections 2709(c) and 3511(b) in toto. The exclusive presumptions of section 3511 cannot survive, the court declared, but the First Amendment finds no offense in the remainder of the two sections except, the court observed, “to the extent that they fail to provide for Government-initiated judicial review.”61 The court further advised that “The Government can respond to this partial invalidation ruling by using the suggested reciprocal notice procedure.”62
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 [Page 228] NSL.63 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. As a result of a settlement, the FBI lifted the six-year gag order on “John Doe” and he was ultimately identified as Nick Merrill.
C. Legislative Response & Oversight

Subsequently, as a result of the Ashcroft and Gonzalez litigation, Congress attempted to fix the NSL statutes when it passed the USA Patriot Improvement and Reauthorization Act of 2005 (the “Reauthorization Act”).64 The NSL statute amendments were driven both by sensitivity to an administrative desire for more explicit enforcement authority,65and by judicial developments which had raised questions as to the statutes’ constitutional vitality as written.66 The statutes then came with open-ended nondisclosure provisions which barred recipients from disclosing the fact or content of the NSL – ever or to anyone. Yet, they featured neither a penalty provision should the confidential requirement be breached nor, in most cases, an enforcement mechanism should a NSL obligation be ignored (the original FCRA statute alone had an explicit judicial enforcement component). The amendments created a judicial enforcement mechanism and a judicial review procedure for both the requests and accompanying nondisclosure requirements.67They established specific penalties for failure to comply with the nondisclosure requirements – a new crime punishable up to 5 years in prison for “willful disclosure of an NSL with intent to obstruct an investigation.”68 Yet, they made it clear that the nondisclosure requirements did not preclude a recipient from consulting an attorney.69
Under the NSL statutes’ amendments in the Reauthorization Act, businesses could challenge NSLs, but they really had no incentive to do so. The costs of providing the records are far less than hiring a lawyer to challenge the requests. The requests are secret, so customers never learn of them, thus providers cooperating with the government are never forced to justify compliance. Also, the companies that [Page 229] comply have immunity, so even if a customer found out that her records were shared, she has no remedy against the company that disclosed the records, regardless of whether the disclosure was justified or not. These amendments also provided a process to ease the nondisclosure requirement.70Libraries were no longer subject to NSLs except to the extent they provided email access, but bookstores and sites like were still covered. Finally, the amendments expanded Congressional oversight,71and called for Inspector General’s audits of use of NSL authority.72
As part of the Reauthorization Act of 2006, Congress directed the Department of Justice (DOJ), Office of the Inspector General (OIG) to review the effectiveness and use, including any improper or illegal use of NSLs issued by the DOJ. The OIG issued two Reports.73 The first in 2007 addressed the FBI’s use of NSLs for calendar years 2003 through 2005. The second in 2008 addressed the FBI’s use of NSL for calendar year 2006. The OIG Reports confirmed that the Patriot Act transformed NSLs into a much more frequently employed investigatory tool. Specifically it stated that “the FBI issued approximately 8,500 requests in 2000 the year prior to the passage of the Patriot Act and after the passage of the Patriot Act, the number of NSL requests increased to approximately 39,000 in 2003, 56,000 in 2004 and 47,000 in 2005.74 The Reports made a distinction between NSLs and NSL Requests – a single NSL may contain multiple requests for information. The OIG Reports specified that the 39,000 requests in 2003 were contained in approximately 12,000 letters and the 47,000 requests in 2005 were contained in 19,000 letters.75
According to the OIG Reports, there were 3 main reasons for the dramatic increase in the number of NSL requests issued starting in 2003.76 First, the Patriot Act eliminated the requirement that an NSL be issued only if “there are specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power.”77 Instead, the information need only be “relevant to an authorized investigation to [Page 230] protect against international terrorism or clandestine activities,”78 a much lower standard. Second, previously a NSL had to be approved by a senior FBI official at FBI headquarters but NSLs could now be authorized by Special Agents in Charge at FBI field offices. As a result, approval is no longer a lengthy process and generally takes only two to five days.79 Third, in 2003, the Attorney General issued revised guidelines governing the use of NSLs in FBI national security investigations (the “NSI Guidelines”). The revised NSI guidelines permit NSLs to be issued during preliminary investigations; under the old guidelines NSLs could only be issued during full investigations.80
The OIG Reports found that in addition to significantly under-reporting the number of NSL requests issued, the FBI failed in a number of other significant ways as well. According to the reports, the agency under-reported violations arising from the use of NSLs; sought information not permitted by the statute; issued NSLs without proper authorization; issued over 700 “exigent letters” requesting the type of information covered by § 2709 without following the process for obtaining an NSL; and repeatedly failed to properly adhere to the FBI’s own internal documentation requirements for approval of an NSL.81
The OIG Reports also provided a glimpse at how the individual NSL statutes were practically used and why they were considered so valuable to investigators. In the case of an ECPA NSL statute, the Reports explained that:

Through NSLs, an FBI field office obtained telephone 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…82
Headquarters and field personnel told us that the principal objective of the most frequently used type of NSL – ECPA NSLs seeking telephone billing records, [Page 231] email records or subscriber information – is to develop evidence to support applications for FISA orders.83

The RFPA NSL statute also affords authorities access to a wide range of information (bank transactions records v. telephone transaction records):

The FBI conducted a multi-jurisdictional counterterrorism investigation of convenience store owners in the United States who allegedly sent funds to known Hawaladars (persons who use the Hawala money transfer system in lieu of or parallel to traditional banks) in the Middle East. The funds were transferred to suspected Al Qaeda affiliates. The possible violations committed by the subjects of these cases included money laundering, sale of untaxed cigarettes, check cashing fraud, illegal sale of pseudoephedrine (the precursor ingredient used to manufacture methamphetamine), unemployment insurance fraud, welfare fraud, immigration fraud, income tax violations, and sale of counterfeit merchandise.84
The FBI issued NSLs 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.85

With respect to the FCRA NSL statutes, the OIG Reports added:

The Supervisor of a counterterrorism squad told us that the FCRA NSL statutes 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 [Page 232] in white collar crime that could be relevant to their investigations”.86
The Reports found that the FBI relied on unauthorized “exigent letters” to demand telephone billing records and subscriber information. The FBI entered into contracts with three telephone companies to obtain information outside of the NSL process through exigent letters. Over 700 exigent letters were issued to the three companies between March 2003 and December 2005. There were sometimes no open investigations tied to the exigent letter requests. Even though the exigent letters stated that “subpoenas requesting this information have been submitted to the U.S. Attorney’s Office who will process and serve them formally as expeditiously as possible”, the OIG could not confirm one instance in which a subpoena had been submitted to any United States Attorney’s Office before the exigent letter was sent to the telephone companies.87
The Reports also provided some startling statistics. There were 143,074 requests for information from 2003-2005, approximately half concerning U.S. citizens. None of the information obtained by NSLs was required to be destroyed even after the information was determined to concern innocent Americans. There were 3,000 different telephone numbers that the FBI requested information on, and telecommunications companies turned over, in false emergencies under so-called “exigent” circumstances, in the complete absence of legal authority. The Reports noted that during the same period, there were 34,000 law enforcement and intelligence agents who had unfettered, nearly limitless access to phone records collected through NSLs. There were 11,100 different phone numbers whose subscriber information was turned over to the FBI in response to only nine NSLs. In stark contrast to the volume of information collected, the FBI made a mere forty-three confirmed criminal referrals to prosecutors after issuing an NSL. Nineteen involved fraud, seventeen were immigration related and seventeen were for money laundering. Only one of the 143,074 persons’ information collected through NSLs resulted in a terror-related conviction that the Inspector General was able to confirm with material support.
Finally, while noting the significant challenges and major structural changes the FBI was facing during the period covered and the lack of any misuse rising to the level of criminal misconduct, the OIG Reports nonetheless concluded that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines and internal FBI policies. [Page 233]


It is a difficult task to control a process without the necessary checks and balances normally applied in any democratic system. Any serious NSL reform must be legislative; currently, there are several proposed amendments in Congress. My recommendations for reforming the NSL statutes include several of these proposed amendments along with some practical, common sense solutions.
Section 627 of the FCRA, 15 U.S.C. 1681v must be repealed and the four remaining NSL statutes must be returned to their pre-Patriot Act forms. As a result of the Patriot Act amendments: NSLs are more readily available to FBI field agents at a lower level of supervisory control; NSLs can be used to obtain information pertaining to individuals two, three or more steps removed from the foreign power or agent of a foreign power that is the focus of the investigation; and NSL-related investigations may not be predicated solely on the basis of activities protected by the First Amendment.
A return to the state of law prior to the Patriot Act amendments would mean NSLs would have to be approved by the FBI Director or a senior FBI headquarters official, and it would have to be based on articulable facts giving reason to believe that the information sought pertains to a foreign power or an agent of a foreign power.88
Section 627, the NSL statute created in the USA Patriot Act, is arguably the most sweeping of the NSL statutes. It offers the most extensive array of information (all information pertaining to a consumer held by a consumer credit reporting agency) to the widest range of requesters (any federal agency “authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis relating to, international terrorism).89 Its repeal would be seen as facilitating oversight, since it would centralize authority to issue NSLs in the FBI (other than in the case of employee security investigations under the NSA).
The statutory provisions governing the issuance and judicial review of NSL nondisclosure requirements must be amended. Each of the NSL statutes has a nondisclosure provision. They state that the issuing agency may prohibit recipients from disclosing the request to anyone other than their attorney and those necessary to comply with the request.90 Agency officials must certify that disclosure may endanger national security, endanger individual safety or may interfere with [Page 234] diplomatic relations or with a criminal, counterintelligence, or counterterrorism investigation.91 A higher threshold and a narrower range of adverse consequences necessary to justify nondisclosure should be required: reason to believe the disclosure “will” result in a danger to personal safety, flight from prosecution; destruction or tampering with evidence; witness intimidation; a serious danger to national security by tipping off the foreign agent who is the target of the investigation, or his associates, or the foreign power that is the agent’s principal; or interfere with diplomatic relations.92 Agencies should also be compelled to explain how the adverse consequences relate to the investigation in which the NSL is sought and how the secrecy order is narrowly crafted to counter the possibility of those adverse consequences.93 This would ensure that there is a definite risk involved if the FBI is prevented from issuing an NSL.
The statutory provisions governing judicial review of the NSL itself should likewise be amended. Existing law permits the recipient of an NSL to petition the U.S. District court to modify it or set aside under the same grounds as a grand jury subpoena might be quashed or modified if it is otherwise unlawful. All NSLs should include a statement informing the recipient of his right to seek judicial review and of the procedures for doing so.94
The statutory provisions governing Issuance and Content of NSLs must also be amended. NSL statutes now authorize the NSLs upon certification that the information is sought for, or is relevant to, various national security investigations. Instead, NSLs should require certification of specific and articulable facts supporting a belief that the information pertains to (i) a suspected agent of a foreign power or the subject of a national security investigation, (ii) an individual in contact with or directly linked to such an individual, or (iii) the activities of such an individual when the activities are the subject of a national security investigation and the NSL is the least intrusive means to identifying persons involved.95 In addition, NSL demands that would be considered unreasonable or privileged, if sought under a grand jury subpoena duces tecum would be prohibited.96 [Page 235]
NSLs need to have some minimization component. Minimization refers to limitations on what information is acquired; how it is required; how it is maintained; who has access to it within the capturing agency and under what circumstances it is disclosed beyond the capturing agency; how long it is preserved; and when and under what circumstances it is expunged. For example, the Foreign Intelligence Surveillance Act (FISA) provides fairly rigorous statutory procedures that must be honored before electronic surveillance or physical searches may be authorized in a national security context, 50 U.S.C. §1801-1829. NSLs need to have some minimization components. The Attorney General should promulgate minimization procedures similar to the FISA definition in 50 U.S.C. § 1801(h): procedures that are calculated, consistent with U.S. needs for foreign intelligence information, to minimize the capture and retention of private information (information not publicly available) relating to a U.S. person (and to ban its retention); procedures that preclude the disclosures of private information relating to a U.S. person (that is not foreign intelligence information) that identifies the person, unless necessary to appreciate its significance; and procedures that permit evidence of a crime to be retained and disclosed.97
The statutory provisions governing Exigent Letters should be amended. The use of exigent letters should be limited to where the risk of death or serious injury is imminent or immediate. When exigent letters are used, the subjects of those exigent letters should be notified.
The statutory provisions regarding Reports and Audits should be amended. Annual statistical report should be expanded to include a breakdown of the number of NSLs issued concerning U.S. person, those who are not U.S. persons, the targets of national security investigations and those who are not the target of national security investigations.98 There should also be semiannual reports to the Congressional Intelligence and Judiciary Committees on all NSLs issued, minimization procedures, any court challenges and an explanation of how NSLs have helped investigations and prosecutions.
Improved training should be a requirement for FBI Agents. The FBI must provide better training for its agents to ensure they comply with the law. Agents were confused about their authorities available under the various NSL statutes. Better training would prevent civil liberty abuses by the FBI.99 [Page 236]
More accurate recordkeeping by the FBI should be required. The FBI’s use of NSLs has been overbroad and sloppy. Sloppiness leads to mistakes and abuse. Mistakes in the NSL process ripple out in a myriad of ways because information gleaned through NSLs is disseminated to everyone from intelligence agencies like the CIA and NSA, to local and state police.100
As opposed to retaining the information gleaned from NSLS ad infinitum, the FBI, and other collecting agencies should be statutorily required to purge unused ISP customer information gleaned from NSLs from their databases regularly. Moreover, the FBI must immediately purge its databases of information relating to individuals that does not pertain to any past or ongoing investigations. The abuse of the NSL power led to the widespread dissemination of personal information about innocent Americans. Because of these abuses, FBI and other federal, state and local government databases are filled with information about innocent people.101
Finally, Congress must investigate the FBI’s continued use of NSLs, and police and sanction the FBI where necessary.102 To ensure that FBI abuse is corrected and prevented from happening in the future, Congress must take affirmative steps.
In conclusion, NSLs are indeed indispensable investigative tools that yield much power. However, with much power comes much responsibility. The Government continues to enhance its security in this post 9/11 era but there is little evidence that the use of NSLs actually enhance security. What there is evidence of is a tremendous loss of liberties. The use and implementation of NSLs has created an unprecedented and alarming new penchant for government secrecy and the abandonment of the core American principle that a government for the people and by the people must be transparent to the people.103 It has also created a disdain for the checks and balances that have been the cornerstone of American democracy for more than 225 years and a disrespect for the American value of equality under the law.104 Americans should not be asked to give up these core values and should resist any insistence to do so. As the columnist Bob Herbert of the New York Times incisively wrote:

“We have a choice. We can fight and win a just war against terrorism, and emerge with the greatness of [Page 237] the United States intact. Or, we can win while running roughshod over the principles of fairness and due process that we claim to cherish, thus shaming ourselves in the eyes of the world – eventually, when the smoke of fear and anger finally clears – in our own eyes as well”.105
We need to amend the NSL statutes as recommended in order to refrain from becoming the very thing that we have been fighting to prevent for hundreds of years.

1. Rachel Brand & John Pistole, Safeguards Are in Place, USA TODAY, Nov. 8, 2005. [back]
2. National Security Letters, ELECTRONIC PRIVACY INFORMATION CENTER (EPIC), (last visited Mar. 17, 2012). [back]
3. Id. [back]
4. Id. [back]
5. Id. [back]
6. White House proposal would ease FBI access to records of Internet activity, Washington Post, July 29, 2010, Ellen Nakashima, http:/ [back]
7. 12 U.S.C. § 3414 (Section 1114(a)) (2006). [back]
8. H.R. Rep. No. 95-1383, at 34 (1978); 425 U.S. 435 (1976). [back]
9. H.R. Rep No. 95-1383, at 55 (1978). [back]
11. Id. [back]
12. H.R. Rep. No. 95-1383, at 55 (1978). [back]
13. National Security Letters, ELECTRONIC PRIVACY INFORMATION CENTER (EPIC), (last visited June 11, 2012). [back]
14. 50 U.S.C. § 436 et seq. (2006). Aldrich Ames was a former CIA counter-intelligence officer and analyst who was convicted of spying for the Soviet Union and Russia in 1994. [back]
15. 50 U.S.C. 436 (2006). [back]
16. 15 U.S.C. § 1681 (2006). [back]
18. USA Patriot Act, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered sections of 8, 12, 15 and 18 U.S.C.). [back]
19. National Security Letters: Proposed Amendments in the 111th Congress, Congressional Research Service, Charles Doyle, October 28, 2009. [back]
20. 15 U.S.C. 1681v(a)(2000 ed. Supp.1). [back]
21. Id. [back]
22. Charles D. Stimon & Andrew M. Grossman, National Security Letters: Three Important Facts, HERITAGE FOUNDATION WEBMEMO, No. 1853 (Mar. 14, 2008), available at [back]
23. 442 U.S. 735 (1979). [back]
24. Stimson & Grossman, supra note 24. [back]
25. Id. [back]
27. Id. [back]
28. Id. [back]
29. Progress Report on the Global War on Terrorism (Sept. 10, 2003), available at []; See also, H.R. 3037 (Rep. Feeney); S.2555 (Sen. Kyl); S 2679; (Sen. Kyl); H.R. 3179 (Rep. Sensenbrenner); all in the 108th Congress; see also, H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003; Hearing before the Subcommittee on Crime, Terrorism and Homeland Security of the House Committee on the Judiciary (House Hearings), 108th Congress, 2d Sess. (2004), available at []; Tools to Fight Terrorism: Subpoena Authority and Pretrial Detention for Terrorists: Hearing before the Subcommittee on Terrorism, Technology and Homeland Security of the Senate Committee on the Judiciary (Senate Hearings I), 108th Congress, 2d. Sess. (2004); A Review of the Tools to Fight Terrorism Act: Hearing Before the Subcommittee on Terrorism, Technology and Homeland Security of the Senate Committee On the Judiciary (Senate Hearings II), 108th Congress, 2d. Session (2004), Member and witness statements available at [] [back]
30. See, e.g., Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant Attorney General Rachel Brand. [back]
31. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 201 (1946). [back]
32. See, e.g., House Hearings, Prepared Statement of United States Assistant Attorney General Daniel J. Bryant. [back]
33. Paine v. City of Lompoc, 265 F.3d 1975, 981 (9th Cir. 2001); Scarbrough v. Myles, 245 F.3d 1299, 1305 (11th Cir. 2001) (witness immunity). [back]
36. In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d 847, 854 (9th Cir. 1991) (distinguishing subpoenas from search warrants). [back]
38. See, e.g.,. Senate Hearings II, Prepared Statement of Mr. Barry Sabin, Chief, Counterterrorism Section of the Criminal Division, United States Department of Justice. [back]
39. See, e.g., Senate Hearings I, Prepared Statement of United States Principal Deputy Assistant Attorney General James Robinson. [back]
40. See, e.g., House Hearings, Prepared Statement of former Representative Bob Barr. [back]
41. Id. [back]
42. See, e.g., Senate Hearings I, Prepared Statement of former United States Assistant Attorney General James Robinson; Senate Hearings II, Prepared Statement of Professor Jonathan Turley. [back]
43. See, e.g., Senate Hearings I, Prepared Statement of former United States Assistant Attorney General James Robinson. [back]
44. In re Grand Jury Proceedings, 115 F.3d 1240, 1244 (5th Cir, 1997). [back]
46. Id. [back]
47. Id. [back]
48. Id. [back]
49. 334 F. Supp. 2d 471 (S.D.N.Y. 2004). [back]
50. Id. [back]
51. Doe v. Ashcroft 334 F.Supp.2d 471, 511-25 (S.D.N.Y. 2004). [back]
52. 449 F.3d 415 (2d Cir. 2006). [back]
53. See Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection [i.e., not a “search”].”) [back]
54. See Id. at 352 (finding that one who occupied a telephone booth, shut the door and paid to use the public telephone had a reasonable expectation of privacy). [back]
55. See New Jersey v. T.L.O., 469 U.S. 325, 337 (1985) (“Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.”). [back]
56. Michigan v. Sitz, 496 U.S. 444, 449-50 (1990) (“Where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” (quoting Treasury Employees v. Von Raab, 489 U.S. 656, 665-66 (1989)). The government has a special need beyond that of normal law enforcement to investigate and root out terrorist operations in the United States. [back]
57. Smith v. Maryland, 442 U.S. 735 (1979). [back]
58. Doe v. Aschcroft 334 F.Supp.2d 471, at 494 n. 118 (S.D.N.Y. 2004). [back]
59. Doe v. Ashcroft, 334 F.Supp.2d at 495. [back]
60. See John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. N.Y. Dec. 15, 2008) (NO. 07-4943-CV), as modified (Mar. 26, 2009). [back]
61. Id. [back]
62. Id. [back]
63. See Doe v. Holder 640 F.Supp,2d 517 (S.D.N.Y. Aug. 5, 2009). [back]
64. Pub.L. No. 109-177, 120 Stat. 192 (Mar. 9, 2006). [back]
65. E.g., House Hearings, Prepared statement of United States Assistant Attorney General Daniel J. Bryant. [back]
66. Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 2004)(First and Fourth Amendment concerns); Doe v. Gonzalez, 386 F.Supp.2d 66 (D. Conn. 2005)(First Amendment and Fourth Amendment concerns). [back]
67. 28 U.S.C. 3511. [back]
68. 28 U.S.C. 3511(c), 18 U.S.C. 1510(e). [back]
69. 12 U.S.C. 3414(a)(3)(A); 15 U.S.C. 1681v(c)(1); 1681u(d)(1); 18 U.S.C. 2709(c)(1); 50 U.S.C. 436(B)(1). [back]
70. 28 U.S.C. 3511(b). [back]
71. P. L. 109-177, S118. [back]
72. P. L. 109-177, S119. [back]
73. U.S. Department of Justice, Office of the Inspector General, A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION’S USE OF NATIONAL SECURITY LETTERS (2007) (hereinafter “OIG Report I”); U.S. Department of Justice, Office of the Inspector General, A REVIEW OF THE FBI’S USE OF NATIONAL SECURITY LETTERS; ASSESSMENT OF CORRECTIVE ACTIONS AND EXAMINATIONS OF NSL USAGE IN 2006 (2008) (hereinafter “OIG Report II”), both available at [back]
74. OIG Report I at 16. [back]
75. OIG Report I at 120. [back]
76. OIG Report I at 45. [back]
77. 18 U.S.C. § 2709(b)(2000). [back]
78. 18 U.S.C. § 2709(b). [back]
79. OIG Report I at 25. [back]
80. OIG Report I at 40. [back]
81. OIG Report I at 66-107. [back]
82. OIG Report I at 49. [back]
83. OIG 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. [back]
84. Critics might suggest that these offenses are “possible” in the operation of any convenience store. [back]
85. OIG Report I at 50. [back]
86. OIG Report I at 51. [back]
87. OIG Report I at 38. [back]
88. 18 U.S.C. 2709(b)(2000 ed,), 12 U,S.C. 3414(a)(5)(A)(2000 ed.), 15 U.S.C. 1681u(a)(2000 ed.). [back]
89. 15 U.S.C. 1681v(a). [back]
90. 12 U.S.C. 3414(a)(5)(D); 18 U,.S.C. 2709(c); 15 U.S.C. 1681u(d); 1681v(c); 50 U.S.C. 436(b). [back]
91. Id. [back]
92. H.R. 1800, S3(d), H.R. 3845, s207, proposed 18 U.,S.C.3511(b)(2). S. 1686, s102; proposed 18 U.S.C. 3511(b)(2). S. 1692, s6(b); proposed 18 U.S.C. 3511(b)(2). [back]
94. 18 U.S.C. 3511(a). [back]
95. S. 1686, s101; proposed 18 U.S.C. 2709(b)(1); 12 U.S.C. 3414(b); 1681u(b). S. 1686 would repeal 15 U.S.C. 1681v, and most amendments in S. 1686 would not apply to 50 U.S.C. 436. [back]
96. H.R. 1800, s3(c). S. 1686, s101; proposed 18 U.S.C. 2709(b)(3); 12 U.S.C. 3414(b); 15 U.S.C. 1681u(b). S. 1686 would repeal 15 U.S.C. 1681v and most of the amendments in S. 1686 would not apply to 50 U.S.C. 436. [back]
97. S. 1686, s101; proposed 18 U.S.C. 2709(d); 12 U.S.C. 3414(b); 15 U.S.C. 1681u(b). S. 1692, s12. [back]
98. H.R. 1800, s6(c). S., s8 1686, s104. S. 1692. [back]
100. Id. [back]
101. Id. [back]
102. Id. [back]
104. Id. [back]
105. Bob Herbert, The Witch Hunt, NEW YORK TIMES (Dec. 3, 2001). [back]
< Prev Next >

About the Author Desirae Wells holds a JD from Brooklyn Law and an LLM (in Intellectual Property) from Benjamin N. Cardozo School of Law. She is currently a Vice President at Bank of America/Merrill Lynch, working in the areas of Corporate Law, Intellectual Property and Securities Law for the past 12 years.
Copyright © 2010–2011 Cardozo Law Review & Cardozo Law Review de•novo. All Rights Reserved.