National Security Letter - History

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.

On March 9, 2006 the USA PATRIOT Improvement and Reauthorization Act was signed into law, which allowed for judicial review of an NSL after it was received. It could be repealed or modified if it was found that a request for information was "unreasonable, oppressive, or otherwise unlawful". The nondisclosure requirement was not weakened as much. The judiciary could only repeal the gag order if the court found that it was made in "bad faith". Otherwise the court had to take the government request for nondisclosure as conclusive. Other amendments included that the recipient of an NSL was allowed to explicitly inform their attorney about the request and the government had to specifically rely on the judiciary for enforcing noncompliance with an NSL. These amendments were done in light of the 2004 Doe v. Ashcroft ruling.

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.