NSL National Security Letters (administrative subpoenas of business records under the amended US Patriot Act)

On March 9, 2006, President Bush signed into law the USA PATRIOT Improvement and Reauthorization Act.

National Security Letters (NSL) under the US Patriot Act are legally interesting as broad grants of power to the government to issue administrative subpoenas for business records. What is the scope of the NSL power?

Charles Doyle has provided us with a legal background for this question in his March 17, 2006 article National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments, Congressional Research Service (CRS) Report RL33320, Library of Congress (LOC), Washington D.C. An abridged version of that article is also available as CRS Report RS22406.

Doyle summarizes the amended and reauthorized US PATRIOT ACT with respect to the NSL as follows:

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.

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.

The text of the five provisions – section 1114(a)(5) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5)); sections 626 and 627 of the Fair Credit Reporting Act (15 U.S.C. 1681u, 1681v); section 2709 of title 18 of the United States Code; and section 802 of the National Security Act (50 U.S.C. 436) – in their amended form have been appended.

This report is available abridged – without footnotes, appendices, and most of the citations to authority – as CRS Report RS22406, National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments, by Charles Doyle.

Doyle’s chart at page 15 of the original report and page 5 of the abridged report provides the following information in substance concerning the differences between the five NSL Sections of the amended and reauthorized US Patriot Act:

18 U.S.C. 2709 (applicable to communications providers and covering the identified customer’s name, address, length of service, and billing info, as relevant to an investigation to protect against international terrorism or espionage)

12 U.S.C. 3414 (applicable to financial institutions and covering identified customer financial records as sought for foreign counterintelligence purposes to protect against international terrorism or espionage)

15 U.S.C. 1681u (applicable to consumer credit agencies and covering identified consumer’s name, address, former address, place and former place of employment, and name and address of consumer’s banks, as sought for an investigation to protect against international terrorism or espionage)

15 U.S.C. 1681v (applicable to consumer credit agencies and covering all information relating to an identified consumer and necessary for the agency’s investigation, activities, or analysis)

50 U.S.C. 436 (applicable to financial institutions, consumer credit agencies, and travel agencies and covering all financial information relating to consenting, identified employee, as necessary to conduct a law enforcement investigation, counterintelligence inquiry or security determination).

The powers granted are broad and accompanied by a gag order (duty of non-disclosure), although the act as amended now expressly provides for judicial review and for limitations on the non-disclosure requirement.

Orin Kerr comments the amendments and NSL here (quoting Michael J. Woods) and here.

Two law journal presentations on the US Patriot Act and NSLs are found at the website pages of Harvard Law School (a Harvard Civil Rights-Civil Liberties Law Review article by Brooklyn Law Prof Susan H. Herman) and in an iBrief of the Duke Law School Law & Technology Review (by law student Christopher P. Raab.

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