LESSON 4: STATUTORY LAW
4.6 Penal Statutes (U.S. Code Title 18: Crimes and Criminal Procedure)
4.6.4 National Security Letters
Annotated Lecture Transcript
In Title 18, there’s also provisions related to the issuance of National Security Letters (NSLs).
Ø 18 U.S.C. Chapter 121: Stored Wire and Electronic Communications and Transactional Records Access: Specifically, Chapter 121, which contains provisions of the Electronic Communications Privacy Act that deal with the government’s access to stored wire and electronic communications as well as transactional records access.
o This contains some of the provisions that allow the government to get your phone or financial records without a warrant, using administrative subpoenas and national security letters.
Title 18 is not the only place where statutory authority to issue national security letters is codified.
There are actually five separate statutes scattered across the U.S. Code that each authorize investigators to use national security letters to demand information from third-parties about targeted individuals without warrants.
Specifically, the statutes allow these administrative subpoenas to be used in a variety of situations by investigators seeking transactional data from third-party service providers—like telephone records, bank records, etc.
The 5 different sections are:
Ø Section 1114(a)(5) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5));
Ø Sections 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u);
Ø Sections 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v);
Ø Section 2709 of title 18 of the United States Code; and
Ø Section 802 of the National Security Act (50 U.S.C. 436).
Three of the five NSL statutes give issuance authority exclusively to the FBI:
Ø Title 18: Electronic Communications Privacy Act: Title 18 has the NSL provisions of the Electronic Communications Privacy Act (18 U.S.C. 2709);
Ø Title 15: Fair Credit Reporting Act: Sections 626 of the Fair Credit Reporting Act (15 U.S.C. 1681u);
Ø Title 12: Right to Financial Privacy Act: Title 12, which contains section 1114(a)(5) of the Right to Financial Privacy Act (12 U.S.C. 3414(a)(5));
o Under this provision, the FBI can demand information from.
§ Financial Institutions like
· Credit Unions;
· Stock Brokers;
· Commodities Brokers;
· Investment Bankers;
· Currency Exchanges;
§ Plus tangentially relevant businesses like:
· Insurance Companies;
· Jewelry Stores;
· Travel Agencies;
· Car and Boat dealerships;
· Jewelry stores;
· Real Estate Agents; and
· The United States Postal Service.
One statute gives NSL issuance authority to agencies investigating employees with access to classified information pursuant to a signed consent form obtained from the targeted employee.
Ø Title 50: National Security Act: Section 802 of the National Security Act is codified in Chapter 15 of Title 50.
Ø New NSL Authority Available to Any Agency Involved in Counterintelligence or Counterterrorism (Title 15: Sections 627 of the Fair Credit Reporting Act): Title 15: Sections 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v): Section 505 of the USA PATRIOT Act, amended the Fair Credit Report Act’s NSL provision—section 626—which previously granted NSL issuance authority only to the FBI.
o It added a new section—section 627—that lets any agency issue NSLs similar to the FBI’s.
Ø USA PATRIOT Act and NSLs: The USA PATRIOT Act weakened the restrictions on the FBI’s use of NSLs under these statutes, which led to widespread abuse of the technique by agents discovered during an investigation by the DOJ’s Inspector General.
Ø The IG’s investigation revealed that agents had issued NSL demands 192,499 times between 2003 and 2006.
So, Title 18 has quite a few statutes relevant to intelligence law.
 National security letters are a form of administrative subpoena issued usually by the FBI to individuals and entities in possession of certain business and communications data about a suspect in an espionage or counterterrorism investigation. They require no warrant or judicial approval to be issued, but require only the approval of senior FBI officials or the Special Agent in Charge of the issuing field office. They are relatively terrifying to receive because not only do they include an implied accusation that the person targeted is involved in espionage or terrorism, but they also threaten recipients with substantial fines and jail time if they ever tell anybody they’ve received the letter. After this power was expanded by the USA PATRIOT ACT, the FBI’s use of national security letters rose from 8,500 in 2000 to 47,000 in 2005. This upward trend continues to this day. Approximately 26% of these are issued for counterintelligence investigations, which means that 12,220 were issued against counterintelligence suspects in 2005 alone. Considering that there have only been 32 arrests for espionage in the last 19 years, it seems unlikely that all of these were bona fide spy threats. See Charles Doyle, Congressional Research Serv., National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments (Sept. 8, 2009) (discussing recent Inspector General investigations and Congressional legislation aimed at curbing the FBI’s skyrocketing use of national security letters to investigate domestic counterintelligence targets).
 See Charles Doyle, Congressional Research Serv., National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL33320_9-8-2009.pdf (“Five federal statutes authorize intelligence officials to request certain business record information in connection with national security investigations. The authority to issue these national security letters (NSLs) is comparable to the authority to issue administrative subpoenas. The USA PATRIOT Act expanded the authority under four of the NSL statutes and created the fifth. Thereafter, the authority has been reported to have been widely used. Prospects of its continued use dimmed, however, after two lower federal courts held the lack of judicial review and the absolute confidentiality requirements in one of the statutes rendered it constitutionally suspect. A report by the Department of Justice’s Inspector General (IG) found that in its pre-amendment use of expanded USA PATRIOT Act authority the FBI had “used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies,” but that no criminal laws had been broken. A year later, a second IG report confirmed the findings of the first, and noted the corrective measures taken in response. The USA PATRIOT Improvement and Reauthorization Act (H.R. 3199), P.L. 109-177, and its companion P.L. 109-178, amended the five NSL sections to expressly provide for judicial review of both the NSLs and the confidentiality requirements that attend them. The sections have also been made explicitly judicially enforceable and sanctions recognized for failure to comply with an NSL request or to breach NSL confidentiality requirements with the intent to obstruct justice. The use of the authority has been made subject to greater congressional oversight. Following amendment, an appellate court dismissed one of the earlier cases as moot and remanded the second for reconsideration in light of the amendments. On remand, the lower court found the amended procedure contrary to the demands of the First Amendment. The Court of Appeals, however, ruled that the amended statutes could withstand constitutional scrutiny, if the government confined itself to a procedure which requires (1) notice to the recipient of its option to object to a secrecy requirement; (2) upon recipient objection, prompt judicial review at the government’s petition and burden; and (3) meaningful judicial review without conclusive weight afforded a government certification of risk. Using this procedure, the district court upheld continuation of the Doe nondisclosure requirement following an ex parte, in camera hearing and granted the plaintiff’s motion for an unclassified, redacted summary of the government declaration on which the court’s decision was based.”).
 See Charles Doyle, Congressional Research Serv., National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL33320_9-8-2009.pdf (“In the 108th Congress, the scope of the Right to Financial Privacy Act NSL was enlarged by defining the financial institutions subject to the authority to include not only banks and credit unions but also car dealers, jewelers, and real estate agents, among others. [Citing P.L. 108-177, §374, 117 Stat. 2628 (2004), 12 U.S.C. 3414(d), adopts the definition of financial institution found in 31 U.S.C. 5312(a)(2), (c)(1), i.e.: “(A) an insured bank (as defined in 12 U.S.C. 1813(h)); (B) a commercial bank or trust company; (C) a private banker; (D) an agency or branch of a foreign bank in the United States; (E) any credit union; (F) a thrift institution; (G) a broker or dealer registered with the Securities and Exchange Commission; (H) a broker or dealer in securities or commodities; (I) an investment banker or investment company; (J) a currency exchange; (K) an issuer, redeemer, or cashier of travelers’ checks, checks, money orders, or similar instruments; (L) an operator of a credit card system; (M) an insurance company; (N) a dealer in precious metals, stones, or jewels; (O) a pawnbroker; (P) a loan or finance company; (Q) a travel agency; (R) a licensed sender of money or any other person who engages as a business in the transmission of funds, including any person who engages as a business in an informal money transfer system or any network of people who engage as a business in facilitating the transfer of money domestically or internationally outside of the conventional financial institutions system; (S) a telegraph company; (T) a business engaged in vehicle sales, including automobile, airplane, and boat sales; (U) persons involved in real estate closings and settlements; (V) the United States Postal Service; (W) an agency of the United States Government or of a State or local government carrying out a duty or power of a business described in this paragraph; (X) a casino, gambling casino, or gaming establishment with an annual gaming revenue of more than $1,000,000 which – (i) is licensed as a casino, gambling casino, or gaming establishment under the laws of any State or any political subdivision of any State; or (ii) is an Indian gaming operation conducted under or pursuant to the Indian Gaming Regulatory Act other than an operation which is limited to class I gaming (as defined in section 4(6) of such Act); (Y) any business or agency which engages in any activity which the Secretary of the Treasury determines, by regulation, to be an activity which is similar to, related to, or a substitute for any activity in which any business described in this paragraph is authorized to engage; (Z) any other business designated by the Secretary whose cash transactions have a high degree of usefulness in criminal, tax, or regulatory matters; [ or (AA)] any futures commission merchant, commodity trading advisor, or commodity pool operator registered, or required to register, under the Commodity Exchange Act.””).
 See Charles Doyle, Congressional Research Serv., National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL33320_9-8-2009.pdf (“The National Security Act NSL provision authorized access to credit and financial institution records of federal employees with security clearances who were required to give their consent as a condition for clearance. Passed in the wake of the Ames espionage case, it is limited to investigations of classified information leaks. As noted at the time, “The Committee believes section 801 will serve as a deterrent to espionage for financial gain without burdening investigative agencies with unproductive recordkeeping or subjecting employees to new reporting requirements.... The Committee recognizes that consumer credit records have been notoriously inaccurate, and expects that information obtained pursuant to this section alone will not be the basis of an action or decision adverse to the interest of the employee involved.””) (internal footnotes omitted).
 Section 802 of the National Security Act, codified at 50 U.S.C. 436.
 See Charles Doyle, Congressional Research Serv., National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL33320_9-8-2009.pdf (“Subsection 358(g) of the USA PATRIOT Act amended the Fair Credit Reporting Act to add a fifth and final NSL section; the provision had one particularly noteworthy feature, it was available not merely to the FBI but to any government agency investigating or analyzing international terrorism: ‘Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer reporting agency shall furnish a consumer report of a consumer and all other information in a consumer’s file to a government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism when presented with a written certification by such government agency that such information is necessary for the agency’s conduct or such investigation, activity or analysis.’ [Citing P.L. 107-56, §358(g), 115 Stat. 327 (2001).] Although the subsection’s legislative history treats it as a matter of first impression, Congress’s obvious intent was to provide other agencies with the national security letter authority comparable to that enjoyed by the FBI under the Fair Credit Reporting Act. The new section had a nondisclosure and a safe harbor subsection, 15 U.S.C. 1681v(c), (e), but no express means of judicial enforcement or penalties for improper disclosure of a request under the section.”) (internal footnotes omitted).
 See Charles Doyle, Congressional Research Serv., National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL33320_9-8-2009.pdf (“The USA PATRIOT Act amended three of the four existing NSL statutes and added a fifth. In each of the three NSL statutes available exclusively to the FBI—the Electronic Communications Privacy Act section (18 U.S.C. 2709), the Right to Financial Privacy Act section (12 U.S.C. 3414(a)(5)), and the Fair Credit Reporting Act section (15 U.S.C. 1681u)—Section 505 of the USA PATRIOT Act: expanded FBI issuing authority beyond FBI headquarter officials to include the heads of the FBI field offices (i.e., Special Agents in Charge (SAC)); eliminated the requirement that the record information sought pertain to a foreign power or the agent of a foreign power; required instead that the NSL request be relevant to an investigation to protect against international terrorism or foreign spying; added the caveat that no such investigation of an American can be predicated exclusively of First Amendment protected activities. [Citing P.L. 107-56, §505, 115 Stat. 365-66 (2001).] The amendments allowed NSL authority to be employed more quickly (without the delays associated with prior approval from FBI headquarters) and more widely (without requiring that the information pertain to a foreign power or its agents).”) (some internal footnotes omitted).
 For example, after the Inspector General of the Department of Justice found widespread abuse of the use of national security letters by FBI field offices and evidence of false reporting of FISA statistics to Congress, the FBI updated its FISA Management System (FISAMS) to include a National Security Letter subsystem which tracks relevant issuance data for accurate reporting to Congress. See Letter of Ronald Weich, Assistant Attorney General, Office of Legislative Affairs, U.S. Department of Justice, to Harry Reid, Senate Majority Leader, Re: FISA Statistics for Calendar Year 2008, May 14, 2009, available at www.fas.org/irp/agency/doj/fisa/2008report.pdf (last visited July 2, 2010).
 See Charles Doyle, Congressional Research Serv., National Security Letters in Foreign Intelligence Investigations: Legal Background and Recent Amendments (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL33320_9-8-2009.pdf (“Five statutory provisions vest government agencies responsible for certain foreign intelligence investigations (principally the Federal Bureau of Investigation (FBI)) with authority to issue written commands comparable to administrative subpoenas. [Citing 18 U.S.C. 2709; 12 U.S.C. 3414; 15 U.S.C. 1681v; 15 U.S.C. 1681u; 50 U.S.C. 436.] A National Security Letter (NSL) seeks customer and consumer transaction information in national security investigations from communications providers, financial institutions and credit agencies. Section 505 of the USA PATRIOT Act expanded the circumstances under which an NSL could be used. [Citing P.L. 1-7-56, 115 Stat. 365 (2001).] Subsequent press accounts suggested that their use had become wide-spread. [Citing From calendar year 2003 through 2005, the FBI issued approximately 44,000 NSLs containing 143,074 requests. In one investigation, it issued 9 NSLs requesting information relating to 11,000 telephone numbers. U.S. Department of Justice, Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters (IG Report I) at xviii-xix (March 2007), available on Sept. 3, 2009 at http://www.usdoj.gov/oig/special/s0703b/ final.pdf. It issued another 49, 425 requests in 2006 for a total 192,499 requests over the four year period from 2003 through 2006, U.S. Department of Justice, Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters (IG Report II) at 9 (March 2008), available on Sept. 3, 2009 at http://www.usdoj.gov/oig/special/s0803b/final.pdf.”]”).