Powerful National Security Letters Continue to Go Largely Unchecked

FBI director, James B. Comey, doesn’t agree with the recommendation that NSL requests be subject to judicial review.

The intelligence review group President Obama created to address surveillance concerns recently submitted 46 recommendations for improving the federal government’s surveillance programs. FBI director James B. Comey spoke out against one in particular, which proposed requiring judicial approval for issuing national security letters (NSL). The document highlighted in today’s posting, an unclassified 2008 Department of Justice Inspector General (IG) report on the FBI’s use of NSLs, helps contextualize both the FBI’s concerns altering one of its key investigative tools, and the serious civil rights concerns that tool elicits.

Insufficient judicial oversight has been a long-standing concern with NSLs, which demand business records from a wide array of organizations for national security investigations, and its unsurprising to see them addressed by Obama’s intelligence review panel. The 2004 case Doe v. Ashcroft challenged the constitutionality of the letters, specifically their non-disclosure provisions, and the resulting ruling issued by Judge Victor Marrero found they NSLs violate the Fourth Amendment. This led to revisions of the USA Patriot Act, allowing for greater judicial review and clarifications to the non-disclosure clauses. However, there are still no requirements to seek approval or judicial review when sending an NSL, and the non-disclosure provisions prevent the full extent of the NSL program from becoming known. A strong argument can be made that even though the Patriot Act allows NSLs containing gag orders to continue being issued without judicial approval, they are nevertheless unconstitutional because they violate the Fourth Amendment’s prohibition on “unreasonable searches” of citizen’s “persons, houses, papers, and effects” without a warrant issued only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  There is also the chance that because the NSLs are secret law, their reach goes well beyond what we now know.

Jude Marrero’s ruling was one of the impetuses for the 2008 IG report, which was the second in a series addressing NSL-related concerns. The report underscores the importance of NSL requests to the FBI, by far the largest employer of the letters, and their reluctance to change current practices.  The report notes that the FBI issued a total 192,499 NSL requests between 2003 and 2006 alone. The ACLU reported “that the agency so thoroughly abused the program that it truly had no idea how many letters had been issued. An audit of the program also found that 60% of the audited files had no supporting documentation and that 22% contained at least one unreported legal violation,” making the lack of oversight of the letters’ issuance and the metadata they collect all the more alarming.

The 2008 IG report states between 2003 and 2006 the “overwhelming majority” of the FBI’s NSL requests were for phone billing information, email subscriber information, and other electronic transaction records. The second most frequently requested records were financial records from banks and credit card companies, followed by financial identifying information and full credit reports. The IG report also reveals a continued, upward trend in NSL issuances, the increase in requests related to the investigations of U.S. persons, and the decrease in requests related to the investigations of non-U.S. persons.

The 2008 report concludes by saying the FBI made “significant progress” in implementing recommendations from an earlier 2007 report, including reinforcing “throughout all levels of the FBI the necessity of adhering to the rules” and issuing “needed” guidance on the use of NSLs. The report offered 17 additional recommendations for improvements (judicial approval for issuing NSLs not being one of them), all of which the FBI agreed with. 

Overall, the exhaustive 2008 IG report highlights the effectiveness of national security letters as an investigative tool and the FBI’s increasing reliance on them. FBI director Comey said regarding issuing the NSL letters, “[b]eing able to do it in a reasonably expeditious way is really important to our investigations. So one of my worries about the proposal in the review group is it would add or introduce a delay.” Comey did suggest that compromises could be made regarding the contentious non-disclosure agreements, saying “[w]e ought to be able to work something out that adopts a nondisclosure regime that is more acceptable to a broader array of folks than the one we have now.” However, it seems highly unlikely these compromises would satisfy the intelligence review panel’s recommendations or civil rights advocates concerns given the bureau’s opposition to judicial approval. President Obama is expected to announce whether he will implement any of the 46 recommendations, including judicial approval for NSL issuances, as early as next week.

For more in-depth information on the FBI’s broad range of operations, check out Jeff Richeleson’s EBB, “Documenting the FBI.”