Legal Digest: Important Investigative Tools for Joint Terrorism Task Force Offcers, Part 1
Important Investigative Tools for Joint Terrorism Task Force Officers
Part 1 of 2
By David J. Gottfried, J.D.
Assistant General Counsel Gottfried is a legal instructor at the FBI Academy.
The attacks on 9/11 profoundly changed the United States. In the aftermath, significant efforts began focusing on identifying and correcting deficiencies in U.S. defenses, including counterterrorism and counterintelligence practices. The nature of the 9/11 attacks and the continuing threat posed by international terrorists required law enforcement and intelligence agencies to change their approach to terrorism investigations.
Agencies learned that they no longer can operate separately in a vacuum. Instead, they need to share information across agency boundaries to counter the threat. In this regard, change has been widespread, improving the relationship between federal, state, and local agencies, including the interaction between federal agencies and local police departments. An example of the latter is the expansion of Joint Terrorism Task Forces (JTTFs). While JTTFs date back to 1980, the National Joint Terrorism Task Force (NJTTF) was established shortly after 9/11. The national program exists in every state, and as of October 2012, approximately 1,650 full- and part-time task force officers (TFOs) are assigned to JTTFs.
In the aftermath of 9/11, preventing terrorism also has become a top priority with investigative efforts focused on detecting and disrupting terrorist plots before terrorists carry them out. To this end, investigators need to identify terrorists and operatives during the planning stage. Critical to disrupting terrorist activity at the early stage is the need to access certain types of information that can help identify the terrorists. These details focus on two essential ingredients in most terror plots—money and conspirators. Access to minimally intrusive historical information about individuals’ finances and with whom they associate often proves critical in detecting and disrupting a terrorist attack.1 Investigators need access to these important details, which usually reside in the hands of third parties, like banks and communications service providers, and in a way that does not alert subjects and their associates.
|In the aftermath of 9/11,
has become a
The national security letter (NSL) is a tool authorized by Congress that allows FBI investigators access to limited types of historical information. An NSL is a written demand for specific types of entities to provide records or information relevant to an FBI national security investigation. NSLs are not court orders, so courts are not involved in its issuance.
The statutes authorizing NSLs are not new and over the years have undergone numerous changes brought about by Congress’ response to terrorist attacks and constitutional challenges. For decades various federal statutes have authorized the FBI to issue NSLs seeking production of limited types of records in furtherance of an FBI national security investigation. In each statute, Congress attempted to balance the privacy interests of individuals against the government’s need for information relevant to an open investigation. NSLs require recipients to provide promptly the information sought by the FBI and to do so without revealing the existence of the government’s request. For nearly two decades, the legitimacy or constitutionality of these requests were not legally challenged.
The first statute to authorize NSLs was the Right to Financial Privacy Act (RFPA).2 Originally passed in 1978, RFPA allows the government to obtain limited banking records from financial institutions identified by the statute as banks, brokerage houses, casinos, insurance companies, automobile dealerships, credit unions, real estate companies, travel agencies, and pawn shops.3
Congress increased NSL authority for federal investigators to obtain a consumer’s credit report in the Fair Credit Reporting Act (FCRA).4 In international terrorism investigations, the government may obtain all information (e.g., a full credit report) relating to an identified consumer.5 For national security investigations dealing with clandestine intelligence activities, Congress limited the scope of the obtainable information to only a consumer’s name, address, former residences, and current and past employers.6
|The statutes authorizing
NSLs are not new and
over the years have
The intelligence value of historical information relating to communications is reflected in the Electronic Communications Privacy Act (ECPA) authorizing the use of NSLs for a broad range of historical records relating to communications.7 Such NSLs seek, for example, the subscriber information (e.g., name, address, and length of service) of a particular customer. Other records obtainable with such an NSL include toll billing records and electronic communication transactional records.
NSLs are authorized by different statutes. However, they share the same general core components.
Specific federal officials certify that NSLs meet the statutory requirements governing their specific type and approve them. The level of official who can sign NSLs changed significantly after 9/11, leading to more widespread use.
NSLs must specify that the legal standard as described in the specific statutory provision has been met. As originally drafted, the NSL statutes required the FBI to certify that there were “specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertains to a foreign power or an agent of a foreign power.”8 This requirement often prohibited the FBI from using NSLs to develop evidence at the early stage of an investigation—precisely when most useful. Following 9/11, Congress changed the legal standard required for NSLs to a more general “relevance” standard.
The types of records an NSL may request are limited to only those within the scope of the statutory authorization. For example, NSLs are issued only to telephone companies, Internet service providers (ISP), consumer credit reporting agencies, and financial institutions. The information sought must be historical in nature, and the acquisition of content (e.g., actual telephone conversations) is expressly prohibited.
Historically an NSL automatically included a nondisclosure provision prohibiting the recipient of the NSL from disclosing its existence to other parties. The rationale behind this prohibition was tied to the NSL’s national security purpose and the secret, typically classified environment in which such intelligence-gathering activities take place. However, recently the use of nondisclosure provisions and their impact on the recipient of the NSL have been the subject of litigation and congressional action.
Limitations on Dissemination of Information
There are safeguards in place with respect to the dissemination of NSL-derived information. ECPA and RFPA permit dissemination only if the information clearly is relevant to the responsibilities of the recipient agency, and FCRA allows for the dissemination of the identity of financial institutions and consumer identifying information to other federal agencies only as necessary for the approval or conduct of a foreign counterintelligence investigation.9
1 As opposed to “real-time” information, which is outside of the scope of an NSL.
2 See 12 U.S.C. § 3401 et. seq. See also Bank Secrecy Act, 31 U.S.C. § 5312.
3 12 U.S.C. § 3414 as amended by USAPATRIOT Act, Pub. L. No. 107-56, section 505.
4 See 15 U.S.C. §§ 1681u and 1681v.
5 See 15 U.S.C. § 1681v.
6 See 15 U.S.C. § 1681u.
7 See 18 U.S.C. § 2709.
8 18 U.S.C. § 2709(b).
9 See 18 U.S.C. § 2709(d); 12 U.S.C. § 3412(a); and 15 U.S.C. § 1681(u).