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

Five federal statutes authorize intelligence officials to request certain business record information in connection with national security investigations. The authority to issue these national security letters NSLs is comparable to the authority to issue administrative subpoenas. The USA PATRIOT Act expanded the authority under four of the NSL statutes and created the fifth. Thereafter, the authority has been reported to have been widely used. Prospects of its continued use dimmed, however, after two lower federal courts held the lack of judicial review and the absolute confidentiality requirements in one of the statutes rendered it constitutionally suspect. A report by the Department of Justices 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. The USA PATRIOT Improvement and Reauthorization Act H.R. 3199, P.L. 109-177, and its companion P.L. 109-178, amended the five NSL sections to expressly provide for judicial review of both the NSLs and the confidentiality requirements that attend them. The sections have also been made explicitly judicially enforceable and sanctions recognized for failure to comply with an NSL request or to breach NSL confidentiality requirements with the intent to obstruct justice. The use of the authority has been made subject to greater congressional oversight. Following amendment, an appellate court dismissed one of the earlier cases as moot and remanded the second for reconsideration in light of the amendments. On remand, the lower court found the amended procedure contrary to the demands of the First Amendment.