Frequently Asked Questions
NATIONAL SECURITY LETTERS
What is a National Security Letter?
A National Security Letter (NSL) is a letter request
for information from a third party that is issued by the
FBI or by other government agencies with authority to conduct
national security investigations.
What statutes provide NSL authority?
NSL authority is provided by five provisions of law:
- TheRight to Financial Privacy Act,
12 U.S.C.§ 3414(a)(5), for financial institution
customer records;
- the Fair Credit Reporting Act, 15 U.S.C.§ 1681u(a)
and (b), for a list of financial institution identities
and consumer identifying information from a credit
reporting company;
- the Fair Credit Reporting Act, 15 U.S.C. § 1681v,
for a full credit report in an international terrorism
case. This provision was created by the 2001 USA
PATRIOT Act;
- the Electronic Communications Privacy Act,
18 U.S.C. § 2709, for billing and transactional
communication service provider records from telephone
companies and internet service providers; and
- the National Security Act, 50 U.S.C. § 436,
for financial, consumer, and travel records for certain
government employees who have access to classified
information.
How valuable are NSLs?
In the post 9/11 world, the National
Security Letter is an indispensable tool and building block
of an investigation that contributes significantly to the
FBI’s ability to carry out its national security
responsibilities by directly supporting the furtherance
of the counterterrorism, counterintelligence and intelligence
missions.
How are NSLs different from subpoenas? Are
NSLs subject to limitations?
- NSLs are similar to federal executive branch administrative
subpoenas in that a government agency issues the request
for information without prior judicial approval.
- Like grand jury subpoenas and administrative subpoenas,
NSLs can be used to acquire information relevant to an
authorized preliminary or full FBI national security
investigation.
- NSLs, however, are subject to two significant limitations.
First, they are only available for authorized national
security investigations (international terrorism or foreign
intelligence/counterintelligence investigations), not
general criminal investigations or domestic terrorism
investigations. Second, unlike administrative subpoenas
and grand jury subpoenas, NSLs can only be used to seek
certain transactional information permitted under the
five NSL provisions, and NSLs cannot be used to acquire
the content of any communications.
Why not just use subpoenas?
There are multiple benefits of NSLS over grand jury subpoenas:
- NSLs are less intrusive in contrast to other tools
such as FISAs, and provide a means to obtain third-party
information relevant to a national security investigation.
- NSLs can also be issued before an investigation is
opened in a grand jury by a U.S. Attorney’s Office
but must be relevant to an authorized FBI national
security investigation.
- Although the non-disclosure provisions in NSLs no
longer automatically attach, NSLs are a better investigative
tool should the government decide that non-disclosure
of the request is necessary on a long-term basis due
to the sensitivity of the investigation and the potential
harm from an NSL’s disclosure.
What types of transactional information may
be obtained by an NSL?
The FBI may obtain the following transactional records:
- subscriber information;
- toll billing records;
- Internet service provider (ISP) login records;
- electronic communication transaction records;
- financial records;
- money transfers;
- credit records; and
- other consumer identifying information.
How are NSLs certified?
All NSLs require a certification that the records sought
are relevant to an authorized investigation to protect
against international terrorism or clandestine intelligence
activities and that an investigation of a US person is
not conducted solely on the basis of First Amendment activities.
Can a provider challenge an NSL?
Yes. All recipients have the right to challenge, in U.S.
District Court, a NSL for which the recipient believes
compliance would be either “unreasonable, oppressive,
or otherwise.” The recipient may also challenge,
in U.S. District Court, any applicable nondisclosure provisions.
In other words, unless the Court finds certification in
bad faith, the law leaves these determinations regarding
U.S. national security and diplomatic relations to the
Executive Branch.
Who is authorized to approve NSLs?
- Only the most senior FBI officials have this authority.
- As of March 9, 2006, the authority to sign NSLs has
been delegated to:
- Deputy Director;
- EAD and Assistant EAD for the National Security
Branch;
- Assistant Directors and all DADs for CI/CT/Cyber;
- General Counsel;
- Deputy General Counsel for National Security Law
Branch;
- Assistant Director in Charge, and all SACs in NY,
D.C., and LA; and
- All SACs in other field divisions.
- Personnel in “acting” positions cannot
sign NSLs.
Are NSLs classified?
The NSLs themselves are not classified, nor
is the material received in return from NSLs classified.
That information may be used in criminal proceedings without
any declassification issue.
