National Security Letter - Contentious Aspects

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. An NSL recipient (later revealed to be Nicholas Merrill) 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."

Unlike other subpoenas and warrants, no approval from the judicial branch is required to issue an NSL, as NSLs request information which carries no constitutionally protected reasonable expectation of privacy as indicated by Smith v. Maryland. 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", but after it is received its recipient may challenge it in court.

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. Over 20 of these involved requests by agents for information that US law did not permit them to have.

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 The 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 USA PATRIOT Act, the F.B.I. must assert only that the records gathered through the letter are considered relevant to a terrorism investigation."

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. 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.

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 2007. The FBI withdrew the NSL and agreed to lift a portion of the gag order that accompanied it.