Answering National Security Letters


The Washington Post reports on the Justice Department's release last week of some of the new numbers on "national security letters" and Foreign Intelligence Surveillance Act (FISA) searches: over 9,200 affecting 3,500 citizens in 2005 for the former; 2,072 of the latter, an 18 percent increase over the previous year. (There are apparently no previous year numbers for national security letters.) Those figures do not include

other such letters that are issued by the FBI to obtain more limited subscriber information from companies, such as a person's name, address or other identifying data, according to the report. Sources have said that would include thousands of additional letters and may be the largest category of NSLs issued. The Washington Post reported in November that the FBI now issues more than 30,000 NSLs each year, including subscriber requests.

"Scores of FBI managers around the country" have the authority to issue NSLs, and they require no court order or supervision to do so.

The FBI thinks that is just fine, since

An NSL is simply a request for information. It does not authorize the FBI to conduct a search or make a seizure. If the recipient of an NSL declines to produce the requested information, the FBI cannot compel him to do so; only a federal court has that authority.

NSLs are subject to two other important limitations. First, the FBI may issue them only to obtain information relevant to an international terrorism or espionage investigation…..

Second, they may be used only to obtain narrow categories of information. For example, the FBI may obtain credit-card billing records to attempt to learn the identity of a terrorist suspect. An NSL may not be used to obtain the contents of an e-mail or a telephone conversation….

The NSL statutes do prohibit an NSL recipient from disclosing the fact that he received it.

The ACLU back in December complained about the Justice Department's underplaying some of the legal and privacy concerns surrounding NSLs, including that

one federal court in Connecticut has already found the underlying NSL authority to be too broad and unconstitutional. Another court has found the permanent gag order that accompanies these demands to be unconstitutional and yet the Department asserts that courts have found there is no First Amendment free speech right in these investigations….