What’s an NSL
An NSL is a National Security Letter. First authorized in 1978 to circumvent the Right to Financial Privacy Act, NSL’s were to be used in counter espionage investigations by the FBI and were limited to investigations of foreign powers and foreign agents. In 1993 the power under the law was broadened to include persons not under direct investigation.
With Passage of the Patriot Act, NSL authority was expanded yet again. Both the ambit of persons about whom NSL’s could issue but also the number of government agencies authorized to issue NSL’s was expanded. What was once the exclusive realm of the FBI, now found itself in the hands of agencies like Homeland Security, the CIA and the Pentagon. In this context, please remember that NSL’s issue domestically. You may want to compare that to the authority of CIA, the Pentagon and certain other agencies to gather domestic intelligence. At least prior to the Patriot Act, but that’s a different discussion.
NSL’s have long been controversial. The letters issue to businesses, requiring businesses to turn over information about individuals, including transactional records, sender/recipient contacts and other “non-content specific” information. The issuance of an NSL is determined by the Director of the FBI or his designated appointee. This can go all the way down to a field level special agent. Unlike standard law enforcement procedures such as subpoenas and warrants, NSL’s are issued without judicial approval. NSL’s also come with a gag order that prevents the receiving company from disclosing not only the contents of the NSL but the fact that it received an NSL at all. Since the Reauthorization of the Patriot Act, companies can challenge such a gag order in court, but only for bad faith and abuse. This is from a business person who received an NSL, complete with gag order
“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.”
From time to time NSL’s get ruled unconstitutional, both due to lack of judicial oversight and due to the gag order aspect infringing on freedom of speech. After such rulings, the agency generally reaches an accommodation with the litigant. Federal agencies have under-reported the issuance of NSL’s to congressional oversight committees, but internal audits disclose that in one four year period, 2003-2007, a total of 193,499 NSL’s were issued. Another audit result examined just 10% of NSL investigations from 2002-2007. In that 10%, the auditors found more than 1000 instances where the issuance of NSL’s violated agency rules. The FBI, through its Director, James Comey, admits that its procedures were too loose, but says that it has since tightened its procedures to reduce such abuses.
NSL’s are used primarily to obtain information on individuals from internet service providers (ISP’s), financial institutions and credit companies. In addition to bank records and credit reports, NSL’s may require ISP disclosure of what websites a person has visited. They can also be used to unmask anonymous posters on political websites and disclose the person’s “community of interest”.
Why Does It Matter
The President’s surveillance review panel recently issued its report and recommendations. Among its recommendations is one that has received less publicity than some others. The panel recommends that NSL’s be taken out of the purview of agency personnel and require prior judicial approval, like subpoenas and warrants. The FBI, through Director Comey is pushing back and asking that the recommendation not be implemented. In explaining his opposition, Comey said,
“Being 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 said that he feared delays of up to a week in getting judicial approval. I am obliged to report that such delays are not consistent with my experience. Law enforcement and prosecutors have channels to reach judges that avoid unnecessary delay in critical situations. This is not to question Comey’s sincerity or credibility. The NSL process simply hasn’t been subject to prior judicial approval, so predicting such delays is at best speculative. At 50,000 or so a year – 193,499 in four years – perhaps Comey is concerned about delays given the number of requests, but that was not voiced.
Form your own opinion, but know that this is on the table and could be decided in the President’s response to the panel’s recommendations as early as next week.
UPDATE: The White House has announced that the President will disclose his plans in response to the recommendations next Friday, January 17. Time and location have not yet been announced.