National Security Letter 3922180 225893745 2008-07-15T22:08:33Z Blackvault 1195126 /* External links */ Added a link to thousands of declassified National Security Letters. [[Image:EFF-IA National Security Letter 1.PNG|thumb|250px|An NSL issued to the [[Internet Archive]] demanding information about a user.]][[Image:EFF-IA National Security Letter 2.PNG|thumb|250px|Page 2.]]A '''National Security Letter''' (NSL) is a form of administrative [[subpoena]] used by the [[United States]] [[Federal Bureau of Investigation]] and reportedly by other U.S. Government Agencies including the [[Central Intelligence Agency]] and the [[United States Department of Defense|Department of Defense]]. It is a demand letter issued to a particular entity or organization to turn over various record and data pertaining to individuals. They require no probable cause or judicial oversight. They also contain a [[gag order]], preventing the recipient of the letter from disclosing that the letter was ever issued. ==History== The oldest NSL provisions were created in [[1978]] as a little-used method of circumventing the [[Right to Financial Privacy Act]]. Used in [[terrorism]] and [[espionage]] investigations, it was limited to foreign powers or persons who the FBI had reasonable cause to believe were agents of a foreign power. Compliance was voluntary, and states' consumer privacy laws often allowed institutions to decline these requests. In [[1986]], the Act was amended to compel disclosure, and the [[Electronic Communications Privacy Act]] was created with similar provisions in place. Still, neither act identified any penalties for failing to comply with the letter. A [[1993]] amendment relaxed the restriction regarding "foreign powers" and allowed the use of an NSL to obtain information on persons not under direct investigation. In [[2001]], section 505 of the [[USA PATRIOT Act]] greatly expanded the use of the NSL. See below. In [[2008]], Congress considered proposals to place new controls on the FBI's use of NSLs. A House bill would tighten the language governing when national security letters could be used, by requiring that they clearly pertain to investigations of a foreign power or an agent instead of just being considered "relevant" to such investigations. It would also require that the FBI destroy information that had been illegally obtained, which existing rules do not require, and it would allow the recipient of a letter to file a civil lawsuit if the missive is found to be illegal or without sufficient factual justification. A Senate bill would require the FBI to track its use of the letters more carefully and would narrow the types of records that can be obtained with a letter to those that are least sensitive.<ref>{{cite news |url=http://www.washingtonpost.com/wp-dyn/content/article/2008/04/14/AR2008041402664_pf.html |title=Lawmakers Want FBI Access to Data Curbed |author=Carrie Johnson |publisher=The Washington Post |date=2008-04-15 |accessdate=2008-04-15}}</ref> ==USA Patriot Act== Once passed in [[2001]], section 505 of the [[USA PATRIOT Act]] greatly expanded the use of the NSL, allowing their use in scrutiny of US residents, visitors, or US citizens who are not suspects in any criminal investigation. It also granted the privilege to other federal agencies, presumably to allow the department of [[Homeland Security]] the same ability to use NSLs. In January of 2007 the New York Times reported that both the Pentagon and the CIA have been issuing National Security Letters. <ref>[http://www.nytimes.com/2007/01/14/washington/14spy.html Military Expands Intelligence Role in U.S.]</ref> The USA PATRIOT Act reauthorization statutes passed during the [[109th Congress]] added specific penalties for non-compliance or disclosure. ==Contentious aspects== Two of the more contentious aspects of the NSL are non-disclosure provisions and a lack of [[judicial oversight]]. As it has since its creation in 1978, the NSL contains a clause which forbids the recipient from revealing the contents of the NSL, or even its receipt. The non-disclosure rules have helped prevent the full extent of the NSL program from becoming known, as the FBI has systematically underreported to Congress the number of letters sent.<ref>[http://www.washingtonpost.com/wp-dyn/content/article/2007/03/22/AR2007032201882.html My National Security Letter], [[The Washington Post]], 2007 Mar 23</ref> An NSL recipient writing in [[The Washington Post]] says "living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case...from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been."<ref>[http://www.washingtonpost.com/wp-dyn/content/article/2007/03/22/AR2007032201882.html My National Security Letter], [[The Washington Post]], 2007 Mar 23</ref> Unlike other subpoenas and warrants, no approval from the [[judicial branch]] is required to issue an NSL. An NSL may be issued by "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"<ref>[http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite+18USC2709 18 USC §2709], [[US Code]]</ref> with no checks and balances in place until after the NSL has been delivered. An internal FBI audit found that the bureau violated the rules more than 1000 times in an audit of 10% of its national investigations between 2002 and 2007<ref name="rte1">{{cite news|title=FBI agents broke the rules 1,000 times|url=http://www.rte.ie/news/2007/0614/fbi.html|work=RTÉ News Online|date=2007-06-14|accessdate=2007-06-14|language=English}}</ref>. Over 20 of these involved requests by agents for information that US law did not permit them to have<ref name="rte1" />. According to 2,500 pages of documents that the FBI turned over to the [[Electronic Frontier Foundation]] in response to a [[Freedom of Information Act]] lawsuit that the EFF had brought against the government, the FBI used national security letters to obtain data not only on individuals that it saw as targets of an investigation, but also to demand details from telecommunications companies on their “community of interest” — the network of people that the target in turn was in contact with. The bureau's NSL community of interest requests, which it recently discontinued, are part of an ongoing investigation by Justice Department inspector general [[Glenn A. Fine]]'s office into the misuse of national security letters. Such "community of interest" record gathering is part of a [[data-mining]] technique intelligence officials call [[link analysis]], believed to have been used by other intelligence agencies such as the [[National Security Agency]]. According to the September 9, 2007 ''New York Times'' report on the FBI's use of NSLs to obtain broader information for data mining purposes, "In many cases, the target of a national security letter whose records are being sought is not necessarily the actual subject of a terrorism investigation and may not be suspected at all. Under the Patriot Act, the F.B.I. must assert only that the records gathered through the letter are considered relevant to a terrorism investigation." <ref>{{cite news |title=F.B.I. Data Mining Reached Beyond Target Suspects |first=Eric |last=Lichtblau |url=http://www.nytimes.com/2007/09/09/washington/09fbi.html |publisher=The New York Times |date=2007-09-08}}</ref> In April, 2008, the [[American Civil Liberties Union]] alleged that the military was using the FBI to skirt legal restrictions on domestic surveillance to obtain private records of Americans' Internet service providers, financial institutions and telephone companies. The ACLU based its allegation on a review of more than 1,000 documents turned over to it by the Defense Department in response to a suit the rights group filed in 2007 for documents related to national security letters.<ref>{{cite news |title=ACLU: Military Skirting Law to Spy |url=http://ap.google.com/article/ALeqM5in8mqT-mHkoXd8NkW7aATFe4AzNQD8VPE8100 |first=Larry |last=Neumeister |publisher=Associated Press |date=2008-04-01 |accessdate=2008-04-11}}</ref> The same month, the [[Electronic Frontier Foundation]] alleged that documents obtained from the FBI in response to its own [[Freedom of Information Act]] lawsuit showed that top FBI officials were aware of the bureau's misuse of national security letters for nearly two years before the misuse was reported.<ref>{{cite web |url=http://www.eff.org/issues/foia/report-nsl-ncstate |title=Report on the Improper Use of an NSL to NC State University |publisher=[[Electronic Frontier Foundation]] |date=2008-04-14 |accessdate=2008-04-15}}</ref> In May, 2008, the FBI reached a legal settlement with the [[Internet Archive]], which had challenged a national security letter served on it in November of 2007. The FBI withdrew the NSL and agreed to lift a portion of the gag order that accompanied it.<ref>{{cite news |title=Internet Archive Challenges F.B.I.’s Secret Records Demand |url=http://www.nytimes.com/idg/IDG_852573C40069388000257442004ECECE.html?pagewanted=print |first=Grant |last=Gross |publisher=IDG News Service |date=2008-05-07 |accessdate=2008-05-07}}</ref> ==Doe v. Ashcroft== {{update}} This lack of judicial oversight was at the core of ''[[Doe v. Ashcroft]]'', a high-profile test of the usage of NSLs. Brought forward by an unnamed<ref>[http://www.aclu.org/safefree/general/24732res20060323.html Statement - John Doe #2, Target of Illegal Spying]</ref> Internet Service Provider <ref>[http://www.cbsnews.com/stories/2004/04/29/terror/main614638.shtml ACLU Sues Over Internet Privacy]</ref> who had been served with NSLs, it challenged the constitutionality of the letters, specifically the non-disclosure provisions. Judge [[Victor Marrero]] of the Southern District of New York found <ref>[http://www.aclu.org/safefree/spying/18589prs20040929.html In ACLU Case, Federal Court Strikes Down Patriot Act Surveillance Power As Unconstitutional]</ref>, on [[28 September]] [[2004]], that NSLs violate the [[Fourth Amendment|Fourth]] ("it has the effect of authorizing coercive searches effectively immune from any judicial process") and [[First Amendment|First]] Amendments. However, Judge Marrero issued a stay on his ruling pending the outcome of an appeal of his decision by the government. In his ruling Judge Marrero wrote "All but the most mettlesome and undaunted NSL recipients would consider themselves effectively barred from consulting an attorney or anyone else who might advise them otherwise," and concluded, "as well as bound to absolute silence about the existence of the NSL...For the reasonable NSL recipient confronted with the NSL's mandatory language and the FBI's conduct related to the NSL, resistance is not a viable option."<ref>[http://news.com.com/Judge+disarms+Patriot+Act+proviso/2100-1028_3-5388764.html Judge disarms Patriot Act proviso]</ref> Compelled by these findings, subsequent revisions to the USA PATRIOT Act have allowed for greater judicial review, as well as clarification and limitation to the non-disclosure clause.<ref>[http://thomas.loc.gov/cgi-bin/toGPObss/http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ177.109 HR 3199]</ref> There remains no requirement to seek judicial review or approval prior to issuance of an NSL. The government appealed Judge Marrero's decision in the 2nd circuit court of appeals which heard arguments from both sides and on [[24 May]], [[2006]] issued a ruling dismissing the case as moot - returning it to the lower court due to subsequent changes in the USA PATRIOT Act enacted by congress after the case was filed. In a concurring opinion, Judge [[Richard Cardamone]] of the 2nd U.S. Circuit Court of Appeals wrote that he suspected "a perpetual gag on citizen speech of the type advocated so strenuously by the government may likely be unconstitutional."<ref>[http://www.firstamendmentcenter.org/news.aspx?id=16930 2nd Circuit challenges national security letters' speech ban]</ref><ref>[http://jurist.law.pitt.edu/paperchase/2006/05/federal-court-rules-permanent-ban-on.php Federal court rules permanent ban on NSL speech may infringe First Amendment]</ref> and that a ban on speech and an unending shroud of secrecy concerning government actions "do not fit comfortably with the fundamental rights guaranteed American citizens"<ref>[http://www.firstamendmentcenter.org/news.aspx?id=16930 2nd Circuit challenges national security letters' speech ban]</ref> and could serve as a cover for official misconduct. After having the case returned to his court for reconsideration in light of the revisions made to the [[USA Patriot Act]], on September 6, 2007, Judge [[Victor Marrero]] struck down the parts of the law that allowed the FBI to compel companies to provide customer records without court authorization and forbade the companies from telling the customers or anyone else what they had done. In his 103-page opinion, Judge Marrero wrote that the law permitting such NSLs was “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.” Marrero said the indefinite gag order associated with NSLs violated the [[First Amendment]], the lack of judicial oversight or review was contrary to the separation of powers guarantee, and that the secrecy requirement was so intertwined with the rest of the provision regarding NSLs that the entire provision was unconstitutional. Judge Marrero delayed enforcing his decision ordering the FBI to desist with further NSLs for 90 days pending an appeal by the government. A spokeswoman for the United States attorney’s office in Manhattan said that the Justice Department had not yet decided whether to file one, although it is widely expected.<ref> {{cite news |title=Judge Voids F.B.I. Tool Granted by Patriot Act |first=Adam |last=Liptak |publisher=The New York Times |date=2007-09-07 |url=http://www.nytimes.com/2007/09/07/washington/07patriot.html}} </ref> <ref> {{cite news |title=Judge Invalidates Patriot Act Provisions |first=Dan |last=Eggen |publisher=The Washington Post |date=2007-09-07 |url=http://www.washingtonpost.com/wp-dyn/content/article/2007/09/06/AR2007090601438.html}} </ref> Another effect of ''Doe v. Ashcroft'' has been greater [[congressional oversight]]. The above mentioned revisions to the PATRIOT Act also included requirements for semi-annual reporting to Congress. Although the details are classified, a non-classified count of NSLs issued is also required. On [[April 28]] [[2006]], the [[United States Department of Justice|Department of Justice]] reported to the [[United States House of Representatives|House]] and [[United States Senate|Senate]] that in calendar year 2005, "the Government made requests for certain information concerning 3,501 United States persons pursuant to National Security Letters (NSLs). During this time frame, the total number of NSL requests… for information concerning U.S. persons totalled 9,254."<ref>[http://www.usdoj.gov/oipr/readingroom/2005fisa-ltr.pdf Report of Foreign Intelligence Surveillance Act], United States Department of Justice</ref> A 2007 DOJ audit of the FBI's use of the National Security Letter found that the FBI actually issued 39,346 requests on 10,232 non-U.S. plus 6,519 U.S. persons in 2003, 56,507 requests for 2004 (8,494 non-U.S., 8,943 U.S. persons), and 47,221 requests in 2005 (8,536 non-U.S., 9,475 U.S. persons).<!--<ref>[http://www.washingtonpost.com/wp-dyn/content/article/2007/03/09/AR2007030900806.html FBI abused power to get private records: report], Reuters via the Washington Post, published and referenced 9 March 2007</ref>--> Moreover, review of a sample of NSLs in that DOJ report found that twenty-two percent of reviewed NSLs were not included in these higher estimates, suggesting that the true numbers are even higher. <ref>[http://www.usdoj.gov/oig/special/s0703b/final.pdf Review of the FBI's Use of National Security Letters], pgs xvi, xix and xxi</ref> ==See also== * [[Lettre de cachet]] * [[Writ of Assistance]] * [[Non-disclosure agreement]] ==References== {{reflist|2}} ==External links== *[http://www.fas.org/sgp/crs/intel/RS22406.pdf National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments (PDF)] *[http://www.aclu.org/FilesPDFs/nsl_decision.pdf Doe v. Ashcroft decision (PDF)] *[http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTA1NzAtY3Zfb3BuLnBkZg==/05-0570-cv_opn.pdf#xml=http://10.213.23.111:8080/isysquery/irl17e/2/hilite Decision of the United States Court of Appeals for the Second Circuit in re: John Doe I et al. v. Alberto Gonzales et al. (PDF)] *[http://www.acluprocon.org/bin/procon/procon.cgi?database=5-J-Sub-3Q.db&command=viewone&op=t&id=6&rnd=793.0853495881552 Do National Security Letters give excessive surveillance power to the government?] *[http://www.fbiunbound.org/ Documentary film : ''FBI Unbound: How National Security Letters Violate Our Privacy''] *[http://www.theblackvault.com/modules.php?name=core&showPage=true&pageID=16#NSL Thousands of Declassified National Security Letters from various government agencies] [[Category:Federal Bureau of Investigation]] [[Category:Legal documents]] [[Category:USA PATRIOT Act]] [[Category:Surveillance]] [[no:National Security Letter]]