Reining in Use of NSLs

June 7, 2007

The Senate Select Committee on Intelligence will meet in a closed hearing today to discuss federal law enforcement agencies’ use of National Security Letters. Congress should take action to stop the FBI’s unconstitutional, excessive use of NSLs. The bureau has been taking advantage of broad interpretations of the PATRIOT Act to deprive thousands of citizens of their rights to privacy and due process. The Center for American Progress supports bold action to curtail the illegal use of NSLs and the reformulation of intelligence legislation to guarantee legislative and judicial oversight, now.

NSLs are a form of subpoena used by the FBI to demand records and information from organizations or companies about individuals without their knowledge. In theory, NSLs should allow law enforcement officials the capability to quickly and effectively gather information on terrorism suspects. The pre-9/11 legislation concerning NSLs limited their use to that end. If used cautiously and legally, this tool would pose a limited and containable threat to civil liberties. The PATRIOT Act, however, realized and multiplied that threat by stripping away key privacy protections that opened the door to misuse.

The FBI can now demand private information—ranging from phone records to financial records—without showing a solid connection to terrorism or an ongoing investigation. They can, and they have: the Inspector General conducted a full audit of the FBI’s use of NSLs that yielded some disturbing numbers. Over a three-year period, the FBI issued 143,074 NSL requests to telephone carriers, Internet providers, and financial institutions. The magnitude of use is itself a problem -- the public was told in 2003 that only “scores” of NSLs had been used when the real number was over 35,000 for that year alone. Even worse is the recent evidence of misuse -- the report concluded that about 22 percent of the fulfilled requests violated the law, but these infractions have gone unaddressed.

These abuses stem from negligent and dangerous legislation governing the use of NSLs. CAP Senior Fellow Peter Swire highlighted four key problems with the law in his April testimony to Congress:

1. The Patriot Act fundamentally changed the nature of NSLs in ways that have created unprecedented legal powers and pose serious risks to privacy and civil liberties.
2. Congress has never agreed to anything like the current scale and scope of NSLs.
3. The gag rule under NSLs is an especially serious departure from good law and past precedent.
4. Amendments such as those in the SAFE Act and H.R. 1739 provide desirable alternatives to the current legal rules.

These problems with the current law can only be remedied through congressional action, which has been absent so far. During the PATRIOT Act reauthorization in 2006, Congress surrendered to the administration’s will and stomached weak, insignificant concessions—a right to an attorney, but still no real judicial review. Even after the Inspector General’s report, Congress has held hearing after hearing without positive result. The public has called for action, but Congress has balked.

The Center for American Progress proposes a simple, four-step solution to this growing problem.

• Limit the use of NSLs to transactional records, such as telephone billing records, subscriber information, travel records, and the names of bank account and credit card holders.
• Require a court order before the government can obtain records of banking activities or credit card transactions.
• Reinstate the pre-PATRIOT Act requirement that the government make a determination that the records it is seeking pertain to a suspected terrorist or spy.
• Institute the Inspector General’s recommended administrative safeguards. 

The NSLs are a threat to individual freedom, and they must be reined in by the administration. The Constitution provides for checks and balances in government, and the legislature must fulfill their duty to check the executive. Congress has effective, reasonable alternatives to this broken system, so they should act to repair it. 

For more on this topic, please see:

• Improper Use of National Security Letters by the FBI: Peter Swire’s Congressional Testimony
• Sound and Fury