Legal Digest: Important Investigative Tools for Joint Terrorism Task Force Offcers, Part 2
Important Investigative Tools for Joint Terrorism Task Force Officers
Part 2 of 2
By David J. Gottfried, J.D.
Evolution of NSLs in the Post-9/11 Era
National security letters (NSL) long have served as valuable tools for the FBI in its counterintelligence and counterterrorism investigations. As the nature of the terrorism threat has evolved, especially after the events on 9/11, Congress modified the statutory provisions governing NSLs so that they would become an even more effective tool in facing the complexity of the existing threats.
USA Patriot Act Amendments
Less than two months after the 9/11 attacks, Congress expanded the FBI’s authority to issue NSLs by enacting Section 505 of the Uniting and Strengthening America by Providing Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act).10
The Patriot Act eliminated the requirement to certify the existence of “specific and articulable facts” showing a connection to a foreign power or agent of a foreign power as a precondition to issuing an NSL. The amendments replaced that requirement with the need to certify that the information sought is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.” This represents a dramatic expansion of scope from the more limited foreign power (most commonly a foreign government or group engaged in international terrorism) or agent of a foreign power (someone who works for or on behalf of a foreign power) to merely anything relevant to any investigation involving international terrorism or spying.11 Another change brought about by the Patriot Act allows a special agent in charge, in addition to an assistant director and some deputy assistant directors at FBI Headquarters, to issue NSLs.12 Congress also recognized that in a post-9/11 world, government officials need a streamlined system for issuing NSLs.
Because the NSLs require documentation of the facts supporting the “agent of a foreign power” predicate and because they require the signature of a high-ranking official at FBI headquarters, they often take months to be issued. This is in stark contrast to criminal subpoenas, which can be used to obtain the same information, and are issued rapidly at the local level. In many cases, counterintelligence and counterterrorism investigations suffer substantial delays while waiting for NSLs to be prepared, returned from headquarters, and served. The section [505 procedures] would streamline the process of obtaining NSL authority.13
The modifications enacted by the Patriot Act resulted in an increased use of NSLs. Shortly thereafter, various groups brought legal actions challenging the constitutionality of the government’s use of NSLs. The first legal challenge was in 2004 in Doe v. Ashcroft.14 On behalf of an Internet service provider (ISP), the American Civil Liberties Union (ACLU) filed suit in the southern district of New York alleging that the NSL provision in the Electronic Communications Privacy Act (ECPA) violated the ISP’s First and Fourth Amendment rights. Central to the case was the assertion that the NSL constituted a search under the Fourth Amendment and that the nondisclosure provision contained in the NSL violated First Amendment free speech rights.
The court rejected the Fourth Amendment claim, citing a longstanding Supreme Court precedent stating that when an individual voluntarily gives certain information to a third party, the individual no longer has a reasonable expectation of privacy in that same information. Accordingly, when the government acquires the information from the third party, the individual about whom the information pertains suffers no infringement on his or her Fourth Amendment rights.15
The First Amendment argument was more problematic. The plaintiff in Doe argued that the nondisclosure provision violated the company’s free speech rights (i.e., to make known publicly that the FBI had requested information about a particular named customer). The district court agreed with the plaintiff, holding that the nondisclosure provision was unconstitutional. The government appealed, and while the appeal was pending before the court of appeals, Congress amended the NSL statutes to address the nondisclosure requirement.
Congress passed the USAPATRIOT Act Additional Reauthorizing Amendments Act of 2006, which contained changes to the NSL nondisclosure provisions.16 As amended, the statutes now allow an NSL recipient to consult with an attorney and to challenge the NSL in court if it is believed that responding to the NSL was “unreasonable, oppressive, or otherwise unlawful.”17
In addition, the amendments no longer allow for the automatic inclusion of nondisclosure provisions in all NSLs. Instead the official who approves the NSLs must certify that disclosing the request “may result [in] danger to the national security of the United States; interference with a criminal, counterterrorism, or counterintelligence investigation; interference with diplomatic relations; or danger to the life or physical safety of any person.”18 Only with such a certification may the FBI include a nondisclosure provision. Congress also allows the recipient to reveal the NSLs to anyone who must be told in order to comply with the request, and the NSL statutes also indicate that the government can compel the recipient to identify all persons to whom such disclosure has been or will be made, with the exception of any attorney consulted for advice about complying with the NSL.19
The 2006 amendments also allow the recipient to challenge the nondisclosure provision in court.20 If the recipient makes such a challenge within one year of the request, the government may recertify the danger of disclosure, and the court must treat the recertification as conclusive absent a showing of bad faith.21 Subsequent litigation in the Second Circuit Court of Appeals ruled that the recipient merely must inform the FBI about the wish to challenge the nondisclosure provision and that the government holds responsibility to initiate judicial review.22 Also, the 2006 amendments provide a mechanism for the FBI to enforce compliance with the NSL by authorizing the attorney general to petition for a court order compelling the NSL recipient to comply with the request and allowing the court to punish any noncompliance with contempt sanctions.23
Oversight of the Government’s Use of NSLs
Given that the government may issue an NSL without court involvement, Congress envisioned the need for oversight and began requiring periodic reports on each statute’s use.24 The 2006 amendments went further, requiring the attorney general to report annually and publicly to Congress certain information regarding the use of NSLs (e.g., the number of U.S. persons who were the subject of NSLs). Congress also directed the U.S. Department of Justice’s inspector general to conduct an audit detailing the “specific functions and particular characteristics of the NSLs issued” and commenting on “the necessity of this law enforcement tool.”25
The use of NSLs has proven essential in a post-9/11 world. The necessity to prevent another terrorist attack requires the government to have an effective tool by which it legally can obtain certain information early in national security investigations to help detect and disrupt terrorist plots and the activities of spies.
Assistant General Counsel Gottfried is a legal instructor at the FBI Academy.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
10 Pub. L. No. 107-56. See also Terrorism Prevention Reauthorization Act of 2005, Pub. L. No. 109-177.
11 See 50 U.S.C. § 1801(a); and 50 U.S.C. § 1801(b).
12 Currently, the issuance of an NSL may be approved by the director or those he has designated, which includes the deputy director; executive assistant director (EAD) and associate EAD for the National Security Branch; assistant directors and deputy assistant directors for the Counterintelligence Division, Counterterrorism Division, Cyber Division, and Weapons of Mass Destruction Directorate; general counsel; deputy general counsel; National Security Law Branch; assistant director in charge in the New York, Washington, and Los Angeles field divisions; and all special agents in charge.
13 Hearing before the H. Comm on the Judiciary, 107th Cong. 57 (2001).
14 See Doe v. Ashcroft, 334 F. Supp 2d 471 (S.D.N.Y. 2004).
15 See California v. Greenwood, 486 U.S. 35 (1988); and United States v. Miller, 425 U.S. 435 (1976).
16 See Pub. L. No. 109-178.
17 18 U.S.C.§ 3511(a).
18 Id. § 2709c.
19 See H.R. Rep. No. 109-133, at 95-96 (2005).
20 18 U.S.C. § 3511(b).
21 18 U.S.C § 3511(b)(2). The attorney general, deputy attorney general, the assistant attorney general for National Security, and the director of the FBI may make this certification.
22 Doe v. Mukasey, 549 F. 3d 861 (2008).
23 Id. § 3511(c).
24 See, for example, 18 U.S.C. § 2709(e); 15 U.S.C. § 1681(v)(f); and 15 U.S.C. § 1681(u)(h). These mandate on a semiannual basis that the director of the FBI shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives, the Select Committee on Intelligence in the Senate, the Committee on the Judiciary of the House of Representatives, and the Committee on the Judiciary of the Senate concerning all requests made under…this section.
25 H.R. Rep. No. 109-333, at 97.