Will Congress Stop Abuse of National Security Letters?

January 20, 2010
Guest Post

Gregory T. Nojeim, Senior Counsel and Director of the Project on Freedom, Security & Technology at the Center for Democracy & Technology 

The Washington Post reported yesterday that the FBI abused its authority to issue National Security Letters (NSLs) and that this abuse permitted it to illegally obtain more than 2,000 telephone call records from 2002-2006. This disclosure, made while Congress contemplates Patriot Act legislation that could rein in use of NSLs, should prompt a re-examination of the approaches taken in the pending bills.

A national security letter is a simple form document issued by the FBI and other agencies of the government to obtain telephone call records, email to/from information, and other records about communications, as well as financial, credit, and other records, without any prior judicial authorization. NSLs are served on the business entities that hold the records and the businesses that receive NSLs must comply or challenge them in court, and with limited exceptions, are barred from disclosing to anyone that they have received or complied with the demand for records.

The Patriot Act removed most of the legal restraints on issuing NSLs, including the requirement that the NSL seek information that pertains to a spy, a terrorist or another agent of a foreign power, and the requirement that agents articulate a factual basis for seeking records with an NSL. But it left in place the very minimal requirement that the NSL be issued only to seek information relevant to an investigation to protect against international terrorism or clandestine intelligence activities. Rather than comply with this minimal requirement, FBI officials issued "exigent letters" to obtain information that should have been sought with NSLs even when no investigation had been opened, and in some cases, even though the information was not sought in an emergency situation. "Exigent letters" were a creation of the FBI and have no basis in law.

After this and other abuses were disclosed in a DOJ Inspector General report issued in March 2007, the FBI put in place administrative changes it said were designed to prevent a recurrence. Those changes included internal review by lead attorneys in FBI field offices of NSL requests. However, The Washington Post article reveals that officials who sanctioned the illegal exigent records included senior officials of the FBI - managers as high as Assistant Director of the FBI. It is not likely that an attorney in an FBI field office will be able to stop illegal activity sanctioned by his boss's boss. That the abuses went this high up the chain of command at the FBI had not been previously revealed.

Congress is currently considering legislation to reauthorize three expiring provisions of the USA Patriot Act. Both the House and Senate Judiciary Committees have reported legislation, but neither bill has come to a vote. While the Senate bill does little to rein in NSLs, the House bill would actually make a difference by focusing NSLs more on terrorists and spies, rather than on records about everyone else. Neither bill, though, explicitly addresses and precludes exigent letters. Each requires a statement of specific facts (the House bill also requires that those facts be "articulable") showing reasonable grounds to believe that the information is either relevant to an investigation (Senate bill) or is relevant and pertains to an agent of a foreign power (AFP), someone in contact with or known personally to such AFP, or is relevant to the activities of an AFP who is under investigation (House bill).

In theory, a requirement that agents articulate the facts that form the basis for seeking records with an NSL should stop the practice of issuing NSLs without any factual basis and without having opened the investigation that is a pre-requisite to issuing the letter. However, for such a limitation to be effective, agents must comply with the law. That they failed to do so over a five-year period following 9-11 does not inspire confidence that they will do so in the future, regardless of whether the law is more exacting. Self-policing doesn't work.

Another approach, which Senator Feingold included in the bill he introduced to reform the Patriot Act, would make a difference. Feingold's Justice Act (S. 1686) put sensitive records beyond the reach of NSLs. They could be sought only with criminal authorities subject to all of the checks and balances that come with criminal prosecutions, or with prior judicial authorization for intelligence-related investigations. Congress has so far rejected this approach. It should either be re-considered in light of these new disclosures, or an alternative should be adopted to preclude unlawful issuance of NSLs to seek sensitive personal information.

[Image via Security, Privacy and the Law.]