National Security Letters: Proposed Amendments in the 111th Congress
Released: 2010-12-27T00:00:00

Introduction

National security letters (NSL) are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information. Five bills, introduced in the 111 th Congress, proposed substantial changes in the law governing NSL authority:

H.R. 1800 , the National Security Letters Reform Act of 2009 (Representative Nadler); H.R. 3845 , the USA PATRIOT Amendments Act of 2009 (Representative Conyers); H.R. 3969 , the Counterterrorism Authorities Improvements Act of 2009 (Representative Reyes); S. 1686 , the Judicious Use of Surveillance Tools in Counterterrorism Efforts Act (JUSTICE Act) of 2009 (Senator Feingold)/ H.R. 4005 (Representative Holt); S. 1692 , the USA PATRIOT Act Sunset Extension Act of 2009 (Senator Leahy); and S. 2336 , the USA PATRIOT Reauthorization Act of 2009 (Senator Sessions).

The Senate Judiciary Committee sent an amended version of S. 1692 to floor on October 13, 2009, S.Rept. 111-92 (2009). The House Judiciary Committee reported out an amended version of H.R. 3845 on December 16, 2009, H.Rept. 111-382 Pt. 1 (2009). The 111 th Congress adjourned without taking further on any of the proposals.

In summary, the Feingold/Holt bill would have repealed immediately one of the existing NSL statutes, section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v), created in the USA PATRIOT Act. The Leahy bill would have repealed section 627 effective December 31, 2013, and on that date would have returned the other NSL statutes to their pre-USA PATRIOT Act form. The Conyers bill would have returned all five NSL statutes to pre-USA PATRIOT Act form effective December 31, 2013, thereby effectively repealing section 627. The Nadler bill would have returned all but the National Security Act statute (50 U.S.C. 436) to their pre-USA PATRIOT Act form after five years; which would have had the effect of repealing section 627, the NSL created by the USA PATRIOT Act. While the Nadler bill dealt exclusive with NSL matters, the Leahy bill addressed other national security issues, as did the Feingold/Holt and Conyers bills, which also spoke to related law enforcement issues. The Reyes bill closely resembled the nondisclosure and judicial review features of the Leahy bill. The Sessions bill, S. 2336 , addressed various Foreign Intelligence Act provisions and the judicial review provisions governing NSL secrecy orders, exclusively.

Background

Prior to the USA PATRIOT Act, the NSL statutes were four. One, 18 U.S.C. 2709, obligated communications providers to supply certain customer information upon the written request of the Director of the Federal Bureau of Investigation (FBI) or a senior FBI headquarters official. When customer identity, length of service, and toll records were sought, the letters had to certify (1) that the information was relevant to a foreign counterintelligence investigation and (2) that specific and articulable facts gave reason to believe the information pertained to a foreign power or its agents. When only customer identity and length of service records (but not toll records) were sought, the letters had to certify (1) again that the information was relevant to a foreign counterintelligence investigation, but (2) that specific and articulable facts gave reason to believe that the customer information pertained to use of the provider's facilities to communicate with foreign powers, their agents or those engaged in international terrorism or criminal clandestine intelligence activities.

In like manner a second statute, section 1114(a)(5) of the Right to Financial Privacy Act, obligated financial institutions to provide the FBI with customers' financial records upon written certification of the FBI Director or his designee (1) that the records were sought for foreign counterintelligence purposes and (2) that specific and articulable facts gave reason to believe that the records were those of a foreign power or its agents.

And so it was with a third, section 626 of the Fair Credit Report Act, which obligated consumer credit reporting agencies to provide customer identification, and the names and addresses of financial institutions at which a designated consumer maintained accounts. Here too, the obligation was triggered by written certification of the FBI Director or his designee (1) that the information was necessary for a foreign counterintelligence investigation, and (2) that specific and articulable facts gave reason to believe that the consumer was either a foreign power, a foreign official, or the agent of a foreign power and was engaged in international terrorism or criminal clandestine intelligence activities.

The fourth, section 802 of the National Security Act, was a bit different. It reached a wider range of potential recipients at the demand of large group of federal officials, but for a more limited purpose. It rested the obligation to provide consumer reports, together with financial information and records, upon consumer reporting agencies, financial agencies, and financial institutions, or holding companies. The requirement was triggered by the certification of senior officials of law enforcement and intelligence agencies, but confined to information pertaining to federal employees with access to classified information and being sought for clearance purposes and inquiries into past or potential security leaks.

USA PATRIOT Act

Section 505 of the USA PATRIOT Act altered the FBI's NSL authority under section 2709, the Right to Financial Privacy Act, and the Fair Credit Reporting Act in several ways:

it expanded issuing authority to include the heads of FBI field offices (special agents in charge (SACs)); it eliminated the requirement of specific and articulable facts demonstrating a nexus to a foreign power or its agents; it required instead that the information was sought for or relevant to various national security investigations; and it directed that no NSL related investigation of a "U.S. person" (American citizen or foreign resident alien) be predicated exclusively on First Amendment protected activities. The National Security Act NSL section remained unchanged, but section 358(g) of the USA PATRIOT Act added a new Fair Credit Reporting Act NSL section 627, 15 U.S.C. 1681v. The new section obligated consumer reporting agencies to provide consumer information and reports to a federal agency "authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism." Senior federal agency officials were empowered to issue the NSL with a certification that the information was "necessary for the agency's conduct or such investigation, activity, or analysis."

2006 Amendments

Several of the USA PATRIOT Act's intelligence gathering provisions were temporary and originally set to expire after five years. The NSL statutes were not among them, but Congress amended the statutes in the USA PATRIOT Improvement and Reauthorization Act of 2005 and the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 nonetheless. The NSL statute amendments were driven both by sensitivity to an Administration desire for more explicit enforcement authority and by judicial developments which had raised questions as to the statutes' constitutional vitality as then written. The statutes then came with open-ended nondisclosure provisions which barred recipients from disclosing the fact or content of the NSL—ever or to anyone. Yet, they featured neither a penalty provision should the confidential requirement be breached nor in most cases an enforcement mechanism should a NSL obligation be ignored (the original Fair Credit Report Act statute alone had an explicit judicial enforcement component).

The amendments:

created a judicial enforcement mechanism and a judicial review procedure for both the requests and accompanying nondisclosure requirements; established specific penalties for failure to comply with the nondisclosure requirements; made it clear that the nondisclosure requirements did not preclude a recipient from consulting an attorney; provided a process to ease the nondisclosure requirement; expanded Congressional oversight; and called for Inspector General's audits of use of NSL authority.

IG Reports

The First IG Report

The Department of Justice Inspector General reports, one released in March of 2007, the second in March of 2008, and the third in January of 2010, were less than totally favorable. The first report noted that FBI use of NSLs had increased dramatically, expanding from 8,500 requests in 2000 to 47,000 in 2005, IG Report I at 120. During the three years under review, the percentage of NSLs used to investigate Americans ("U.S. persons") increased from 39% in 2003 to 53% in 2005. A substantial majority of the requests involved records relating to telephone or e-mail communications, Id.

The report and the subsequent report a year later provided a glimpse at how the individual NSL statutes were used and why they were considered available. In case of the 18 U.S.C. 2709, the Electronic Communications Privacy Act (ECPA) NSL statute, the reports explained that:

Through national security letters, an FBI field office obtained telephone toll billing records and subscriber information about an investigative subject in a counterterrorism case. The information obtained identified the various telephone numbers with which the subject had frequent contact. Analysis of the telephone records enabled the FBI to identify a group of individuals residing in the same vicinity as the subject. The FBI initiated investigations on these individuals to determine if there was a terrorist cell operating in the city.

Headquarters and field personnel told us that the principal objective of the most frequently used type of NSL—ECPA NSLs seeking telephone toll billing records, electronic communication transactional records, or subscriber information (telephone and e-mail)—is to develop evidence to support applications for FISA orders.

The Right to Financial Privacy Act (RFPA) NSL statute, 12 U.S.C. 3414(a)(5), also affords authorities access a wide range of information (bank transaction records v. telephone transaction records) as demonstrated by the instances where it proved useful:

The FBI conducted a multi-jurisdictional counterterrorism investigation of convenience store owners in the United States who allegedly sent funds to known Hawaladars (persons who use the Hawala money transfer system in lieu of or parallel to traditional banks) in the Middle East. The funds were transferred to suspected Al Qaeda affiliates. The possible violations committed by the subjects of these cases included money laundering, sale of untaxed cigarettes, check cashing fraud, illegal sale of pseudoephedrine (the precursor ingredient used to manufacture methamphetamine), unemployment insurance fraud, welfare fraud, immigration fraud, income tax violations, and sale of counterfeit merchandise.

The FBI issued national security letters for the convenience store owners' bank account records. The records showed that two persons received millions of dollars from the subjects and that another subject had forwarded large sums of money to one of these individuals. The bank analysis identified sources and recipients of the money transfers and assisted in the collection of information on targets of the investigation overseas.

The Fair Credit Reporting Act NSL statutes, 15 U.S.C. 1681u (FCRAu) and 1681v (FCRAv) can be even more illuminating, "The supervisor of a counterterrorism squad told us that the FCRA NSLs enable the FBI to see 'how their investigative subjects conduct their day-to-day activities, how they get their money, and whether they are engaged in white collar crime that could be relevant to their investigations.'"

Overall, the report notes that the FBI used the information gleaned from NSLs for a variety of purposes, "to determine if further investigation is warranted; to generate leads for other field offices, Joint Terrorism Task Forces, or other federal agencies; and to corroborate information developed from other investigative techniques." Moreover, information supplied in response to NSLs provides the grist of FBI analytical intelligence reports and various FBI databases.

The report was somewhat critical, however, of the FBI's initial performance:

[W]e found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies. In addition, we found that the FBI circumvented the requirements of the ECPA NSL statute when it issued at least 739 "exigent letters" to obtain telephone toll billing records and subscriber information from three telephone companies without first issuing NSLs. Moreover, in a few other instances, the FBI sought or obtained telephone toll billing records in the absence of a national security investigation, when it sought and obtained consumer full credit reports in a counterintelligence investigation, and when it sought and obtained financial records and telephone toll billing records without first issuing NSLs. Id . at 124.

More specifically, the report found that:

a "significant number of NSL-related possible violations were not being identified or reported" as required; the only FBI data collection system produced "inaccurate" results; the FBI issued over 700 exigent letters acquiring information in a manner that "circumvented the ECPA NSL statute and violated the Attorney General's Guidelines ... and internal FBI policy;" the FBI's Counterterrorism Division initiated over 300 NSLs in a manner that precluded effective review prior to approval; 60% of the individual files examined showed violations of FBI internal control policies; the FBI did not retain signed copies of the NSLs it issued; the FBI had not provided clear guidance on the application of the Attorney General's least-intrusive-feasible-investigative-technique standard in the case of NSLs; the precise interpretation of toll billing information as it appears in the ECPA NSL statute is unclear; SAC supervision of the attorneys responsible for review of the legal adequacy of proposed NSLs made some of the attorneys reluctant to question the adequacy of the underlying investigation previously approved by the SAC; there was no indication that the FBI's misuse of NSL authority constituted criminal conduct; personnel both at FBI headquarters and in the field considered NSL use indispensable; and information generated by NSLs was fed into a number of FBI systems. IG Report I at 121-24.

Exigent Letters

Prior to enactment of the Electronic Communications Privacy Act (ECPA), the Supreme Court held that customers had no Fourth Amendment protected privacy rights in the records the telephone company maintained relating to their telephone use. Where a recognized expectation of privacy exists for Fourth Amendment purposes, the Amendment's usual demands such as those of probable cause, particularity, and a warrant may be eased in the face of exigent circumstances. For example, the Fourth Amendment requirement that officers must knock and announce their purpose before forcibly entering a building to execute a warrant can be eased in the presence of certain exigent circumstances such as the threat of the destruction of evidence or danger to the officers. Satisfying Fourth Amendment requirements, however, does not necessarily satisfy statutory prohibitions.

The ECPA prohibits communications service providers from supplying information concerning customer records unless one of the statutory exceptions applies. There are specific exceptions for disclosure upon receipt of a grand jury subpoena or an NSL. A service provider who knowingly or intentionally violates the prohibition is subject to civil liability, but there are no criminal penalties for the breach.

The Inspector General found that contrary to assertions that "the FBI would obtain telephone records only after it served NSLs or grand jury subpoenas, the FBI obtained telephone bill records and subscriber information prior to serving NSLs or grand jury subpoenas" by using "exigent letters." The FBI responded that it had barred the use of exigent letters, but emphasized that the term "exigent letter" does not include emergency disclosures under the exception now found in 18 U.S.C. 2702(c)(4). Thus, the FBI might request that a service provider invoke that exception to the record disclosure bar "if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information," 18 U.S.C. 2702(c)(4). Moreover, the Justice Department's Office of Legal Counsel subsequently advised the FBI in a classified memorandum that "under certain circumstances the ECPA does not prohibit electronic communications service providers from disclosing certain call detail records to the FBI on a voluntary basis without legal process or a qualifying emergency under Section 2702."

The Second IG Report

The second IG Report reviewed the FBI's use of national security letter authority during calendar year 2006 and the corrective measures taken following the issuance of the IG's first report. The second Report concluded that:

"the FBI's use of national security letters in 2006 continued the upward trend ... identified ... for the period covering 2003 through 2006; "the percentage of NSL requests generated from investigations of U.S. persons continued to increase significantly, from approximately 39% of all NSL requests issued in 2003 to approximately 57% of all NSL requests issued in 2006;" the FBI and DoJ are committed to correcting the problems identified in IG Report I and "have made significant progress in addressing the need to improve compliance in the FBI's use of NSLs;" [and] "it [was] too early to definitively state whether the new systems and controls developed by the FBI and the Department will eliminate fully the problems with NSLs that we identified," IG Report II at 8-9.

The Third IG Report

The third IG Report examined the FBI's use of exigent letters and other informal means of acquiring communication service provider's customer records in lieu of relying on NSL authority during the period from 2003 to 2007. The IG's Office discovered that "the FBI's use exigent letters became so casual, routine, and unsupervised that employees of all three communications service providers sometimes generated exigent letters for FBI personnel to sign and return to them."

Some of the informality was apparently the product of proximity. In order to facilitate cooperation, communications providers had assigned employees to FBI offices. In addition to a relaxed exigent letter process, the on-site feature gave rise to a practice of sneak peeks, that is, of providing the FBI with "a preview of the available information for a targeted phone number, without documentation of any justification for the request." "In fact, at times the service providers' employees simply invited FBI personnel to view the telephone records on their computer screens. One senior FBI counterterrorism official described the culture of casual requests for telephone records by observing, 'It [was] like having the ATM in your living room."

Not surprisingly, the IG's review " ... found widespread use by the FBI of exigent letters and other informal requests for telephone records. These other requests were made ... without first providing legal process or even exigent letters. The FBI also obtained telephone records through improper 'sneak peeks,' community of interest █████, and hot-number ████ Many of these practices violated FBI guidelines, Department policy, and the ECPA statute. In addition, we found that the FBI also made inaccurate statements to the FISA Court related to its use of exigent letters."

Although critical of the FBI's initial response and recommending further steps to prevent reoccurrence, the IG's Report concluded that "the FBI took appropriate action to stop the use of exigent letters and to address the problems created by their use."

Secrecy, Judicial Review, and the Second Circuit

The current secrecy and judicial review provisions applicable to NSLs must be read in light of the Second Circuit's John Doe, Inc. v. Mukasey decision, 549 F.3d 861 (2d Cir. 2008). Under the NSL statutes, secrecy is not absolutely required. Instead NSL recipients are bound to secrecy only upon the certification of the requesting agency that disclosure of the request or response may result in a danger to national security; may interfere with diplomatic relations or with a criminal, counterterrorism, or counterintelligence investigation; or may endanger the physical safety of an individual. A recipient may disclose the request to those necessary to comply with the request and to an attorney the recipient consults for related legal advice or assistance. In doing so, the recipient must advise them of the secrecy requirements. Aside from its attorney the recipient must also identify, at the requesting agency's election, those to whom it has disclosed the request.

Judicial Review of NSLs

Under the statute, 18 U.S.C. 3511, a recipient may petition the court to modify or extinguish any NSL secrecy requirement within a year of issuance. Thereafter, it may petition to have the veil of secrecy lifted, although it may resubmit a rejected request only once a year. Section 3511 provides that the court may modify or set aside the restriction if it finds "no reason to believe that disclosure may" endanger national security or personal safety or interfere with diplomatic relations or a criminal, countterrorism, or counterintelligence investigation. The section, however, binds the court to the assertion of a senior executive branch official that such an adverse consequence is possible .

In addition to authority to review and set aside NSL nondisclosure requirements, the federal courts also enjoy jurisdiction to review and enforce the underlying NSL requests. Under section 3511, recipients may petition and be granted an order modifying or setting aside an NSL, if the court finds that compliance would be unreasonable, oppressive, or otherwise unlawful. The "unreasonable or oppressive" standard is used for grand jury and other subpoenas issued under the Federal Rules of Criminal Procedure. The Rules afford protection against undue burdens and protect privileged communications. Compliance with a particular NSL might be unduly burdensome in some situations, but the circumstances under which NSLs are used suggest few federally recognized privileges. The Rules also impose a relevancy requirement, but in the context of a grand jury investigation a motion to quash will be denied unless it can be shown that "there is no reasonable possibility that the category of materials the Government seeks will produce information relevant" to the investigation. The authority to modify or set aside a NSL that is "unlawful" affords the court an opportunity to determine whether the NSL in question complies with the statutory provisions under which it was issued. Section 3511 also vests the court with authority to enforce the NSL against a recalcitrant recipient. Failure to comply with the court's order thereafter is punishable as contempt of court. A breach of a confidentiality requirement committed knowingly and with the intent to obstruct an investigation or related judicial proceedings is punishable by imprisonment for not more than five years and/or a fine of not more than $250,000 (not more than $500,000 for an organization).

The Second Circuit has concluded that the procedure can survive First Amendment scrutiny only if it involves the following:

notice to NSL recipients that they may contest any secrecy order; expeditious government petition for judicial review of a secrecy order upon recipient request; government burden to establish the validity of its narrowly tailored secrecy order; no conclusive weigh may be afforded governmental assertions; and recipients may apply or reapply annually for judicial review where the government's burden remains the same.

On remand, the district upheld continuation of the nondisclosure order under the procedure suggested by the Second Circuit.

Proposed Amendments

Sunset and Repeal

Three provisions governing foreign intelligence investigations sunset on February 28, 2011. The NSL provisions are not among them. Nevertheless, each of the bills, other than the Reyes and Sessions bills, proposed sunset in one form or another. The Feingold/Holt bill would have repealed immediately one of the existing NSL statutes, section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v). The Leahy bill would have repealed section 627 effective December 31, 2013 and on that date would have returned the others to their pre-USA PATRIOT Act form. The Conyers bill would have returned all five NSL statutes to pre-USA PATRIOT Act form effective December 31, 2013, thereby effectively repealing section 627. The Nadler bill would have returned all but the National Security Act statute (50 U.S.C. 436) to their pre-USA PATRIOT Act form after five years.

The USA PATRIOT Act expanded existing authority under 18 U.S.C. 2709, the Right to Financial Privacy Act, and the Fair Credit Reporting Act. It also created new NSL authority in the form of section 627 of the Fair Credit Reporting Act (15 U.S.C. 1681v). It did not expand the reach of the National Security Act NSL statute. A return to the state of the law prior to enactment of the USA PATRIOT Act would have had the effect of eliminating the amendments it made in the pre-existing NSL statutes as well as any subsequent amendments, and of repealing section 627.

In general terms for the three pre-existing NSL statutes, the USA PATRIOT Act:

expanded issuing authority to include the heads of FBI field offices (special agents in charge (SACs)); eliminated the requirement of specific and articulable facts demonstrating a nexus to a foreign power or its agents; required instead that the information was sought for or relevant to various national security investigations; and directed that no NSL related investigation of a "U.S. person" (American citizen or foreign resident alien) be predicated exclusively on First Amendment protected activities.

This means that:

NSLs are more readily available to FBI field agents at a lower level of supervisory control; NSLs can be used to obtain information pertaining to individuals two, three, or more steps removed from the foreign power or agent of a foreign power that is the focus of the investigation; and NSL-related investigations may not be predicated solely on the basis of activities protected by the First Amendment.

A return to the state of the law prior to the effective date of the USA PATRIOT Act would mean that NSLs would need to be approved by the FBI Director or a senior FBI headquarters official, and it would have to be based on specific and articulable facts giving reason to believe that the information sought pertains to a foreign power or agent of a foreign power. A witness at an earlier Congressional hearing indicated that the "specific and articulable" facts standard grew out of the standards employed in counterintelligence investigations and did not always translate well in a counterterrorism context:

My point is that the "specific and articulable facts" standard was particularly suited to the counterintelligence operations of the era in which it was created. A FBI counterintelligence investigation involved examining a linear connection between a foreign intelligence officer (about whom much was known) and his contacts (potential spies). The information known about the intelligence officer was specific in nature, and could be readily used to meet the NSL legal standards.... Unlike the traditional linear counterintelligence case, in which the foreign agent tried to recruit the domestic spy using infrequent and highly secure forms of communication, many counterterrorism cases involved complex networks generating a much larger volume of communication and financial transactions. In counter-terrorism cases, the starting point was often not a clearly identifiable agent of a foreign power (as in counterintelligence); indeed, the relevant "foreign power" was itself an imperfectly understood terrorist organization that might defy precise definition. As a consequence, counter-terrorism investigators often had a far more difficult time meeting the "specific and articulable facts" standard.

The language precluding NSL-related investigations grounded exclusively on the exercise of First Amendment rights would also have disappeared. It is at best unclear, however, that the First Amendment unaided does not embody a comparable prohibition.

At the first sunset of USA PATRIOT Act provisions, Congress amended each of the NSL statutes in the USA PATRIOT Improvement and Reauthorization Act and the USA PATRIOT Act Additional Reauthorization Amendments Act. The amendments state the grounds upon which the NSLs may be made subject to a secrecy requirement (gag order); advise recipients that the order does not preclude disclosure to the recipient's attorney or to those necessary for execution of the request; and notify recipients of their right to judicial review of the order. They too would disappear were the law carried back to its pre-USA PATRIOT Act state.

The impact might be less significant that would at first appear. By and large, 18 U.S.C. 3511 governs judicial review of NSL nondisclosure requirements. When implemented as required by the Second Circuit's decision in John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008), and at the election of the recipient, the government has the burden of persuading the court of the validity of the gag order under the same standards as found in the expired portions of the NSL statutes. Although each of the legislative proposals would amend section 3511, explicitly or implicitly, they each reinforce rather than erode the recipient protections of section 3511 as discussed infra .

Section 627, the NSL statute created in the USA PATRIOT Act, is arguably the most sweeping of the NSL statutes. It offers the most extensive array of information (all information pertaining to a consumer held by a consumer credit reporting agency) to the widest range of requesters (any federal agency "authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis relating to, international terrorism"). Its repeal might be seen to facilitate oversight, since it would centralize authority to issue NSLs in the FBI (other than in the case of employee security investigations under the National Security Act). Moreover, the Justice Department IG reported that both the FBI and consumer reporting agencies have experienced difficulty distinguishing between authority under 1681u and 1681v.

In contrast, the National Security Act NSL statute, left unamended by the USA PATRIOT Act, is arguably the least intrusive. It reaches only information pertaining to federal employees who have consented to their disclosure.

Nondisclosure

Each of the NSL statutes has a nondisclosure provision. They state that the issuing agency may prohibit recipients from disclosing the request—to anyone other than their attorney and those necessary to comply with the request, ever. In order to activate the authority, agency officials must certify that disclosure may endanger national security, endanger individual safety, or may interfere with diplomatic relations or with a criminal, counterintelligence, or counterterrorism investigation.

A federal district court may modify or set aside a NSL secrecy requirement on the petition of a recipient, if it concludes that there is no reason to believe that disclosure might result in any such danger or interference. If the petition for review is filed more than a year after issuance of the NSL, the agency must either terminate the gag order or recertify the need for its continuation. There is no explicit provision for disclosure to the party to whom the information pertains.

The Second Circuit in John Doe, Inc. v. Mukasey held that these provisions only survive First Amendment scrutiny if the agency petitions for judicial review and convinces the court that the agency proposed order is narrowly crafted to meet to the statutorily identified adverse consequences of disclosure.

The Nadler, Conyers, Reyes, Feingold/Holt, Leahy, and Sessions bills would have each modified the statutory provisions governing the issuance and judicial review of NSL nondisclosure orders. The Conyers, Reyes, Feingold/Holt, Leahy, and Sessions bills would have codified a procedure comparable in many respects to that which the Second Circuit identified as constitutionally acceptable. Under each of the bills, the agency issuing the NSL would have made the initial determination of whether to include a nondisclosure provision in the NSL and that determination would be subject to judicial review. The Nadler bill would have used a different approach to meet the Second Circuit requirement that the government seek and justify judicial approval for a nondisclosure order. Under the Nadler bill, recipients would be under a disclosure ban for 30 days during which the agency might apply to the court to issue a nondisclosure order.

The Leahy, Reyes, Sessions, and Conyers bills would have left unchanged the concerns a requesting official might rely upon in order to impose a nondisclosure order: reason to believe disclosure may endanger national security or individual safety or interfere with diplomatic relations or a criminal, counterterrorism, or counterintelligence investigation (but in the Conyers bill the court would have been required to find that disclosure would—rather than might—result in one or more of the adverse consequences). The Nadler and Feingold/Holt bills would have adopted a higher threshold and would have established a narrower range of adverse consequences necessary to justify nondisclosure: reason to believe disclosure "will" (rather than "may") result in a danger to personal safety; flight from prosecution; destruction or tampering with evidence; witness intimidation; a serious danger to national security by tipping off the foreign agent who is the target of the investigation, or his associates, or the foreign power that is the agent's principal; or (only in the case of the Feingold/Holt bill) interfere with diplomatic relations.

In all six bills, the government would have had the burden of petitioning for and securing U.S. district court approval of a nondisclosure provision, although in the Sessions bill the court would have been required to give "substantial weight" to the government's certification of the possible adverse consequences of disclosure. In the Nadler bill, the recipient would have been subject to a preliminary 30 day nondisclosure requirement during which the issuing agency might seek a court nondisclosure order. In the Feingold/Holt bill, should the agency have determined that nondisclosure was appropriate it would have inform the recipient that he had 21 days to ask for judicial review. Those who elected not to request judicial review would have been bound by the nondisclosure requirement for not more than a year. In the case of those who request judicial review, the agency would have had 21 days to petition the court for review. In the Leahy, Sessions, Reyes, and Conyers bills, the agency would have notified the recipient of the right to judicial review and petition for review within 30 days of a recipient's request for judicial review.

Each of the bills would have required that the agency's application for judicial approval or review include a statement of facts giving reason to believe that disclosure would have (or might in the case of the Leahy, Reyes, and Conyers bills) resulted in one of the statutory list of adverse consequences—(A) in the Leahy, Reyes, Sessions, and Conyers bills, endanger national security or individual safety or interfere with diplomatic relations or with a criminal, counterterrorism, or counterintelligence investigation; or (B) in the Nadler and Feingold/Holt bills, endanger personal safety; flight from prosecution; destruction or tampering with evidence; witness intimidation; a serious danger to national security by tipping off the foreign agent who is the target of the investigation, or his associates, or the foreign power that is the agent's principal; or (only in the case of the Feingold/Holt bill) interfere with diplomatic relations.

The Feingold/Holt bill would have compelled applicants to explain how the adverse consequences relate to the investigation in which NSL is sought and how the secrecy order is narrowly crafted to counter the possibility of those adverse consequences. In addition, the Feingold/Holt bill would have required that agency applicants recommend when the secrecy order should expire.

Should the court feel the agency had met its burden, it would have been authorized to approve the requested secrecy order. The Feingold/Holt bill would have limited the order to no more than a year; the Nadler and Conyers bills to no more than 180 days. Renewals would have been available under the same conditions and with the maximum duration as in the original. Unlike the other bills, the Leahy, Reyes, and Sessions bills had no such explicit provision for maximum duration of a gag order, and unlike existing law, they had no explicit provision to allow a recipient to petition for judicial review after the passage of time. On the other hand, they would have placed no express time limit on the recipient's right to judicial review nor upon the court's jurisdiction over the question; they stated only that the recipient would have a right to judicial review of the order, that the recipient would have needed to notify the agency of any desire for judicial review, and that the agency would have been obligated to petition the court for review within 30 days of receiving a recipient's request.

Judicial Review of NSL Itself

Existing law permits the recipient of a NSL to petition the U.S. district court to modify it or set aside under the same grounds as a grand jury subpoena might be quashed or modified or if it is otherwise unlawful. The Conyers, Feingold/Holt, Leahy, and Sessions bills would not have changed existing law here, although all but the Sessions bill would have provided that a NSL include a statement informing the recipient of his right to seek judicial review and of the procedures for doing so. The Nadler bill contained a provision which appeared to be designed to replace existing law, although the bill would have neither repealed nor expressly amended the current provision. The Nadler proposal would have allowed a recipient to petition the U.S. district court to modify or set aside the NSL for failure to comply with the statutory requirements associated with the issuance of NSL or based "upon any constitutional or other legal right or privilege" of the recipient.

Issuance and Content

The NSL statutes now authorize the NSLs upon certification that the information is sought for, or is relevant to, various national security investigations. The Nadler bill would have required certification of specific and articulable facts supporting a belief that the information pertained to a foreign power or one of its agents. The Conyers bill would have required a separate writing documenting specific and articulable facts demonstrating reasonable grounds to believe that the information sought either (1) pertained to a foreign power or one of its agents; (2) was relevant to the activities of a suspected foreign agent who was the subject of the investigation; or (3) pertained to an individual in contact with or known to such a suspected foreign agent. The Feingold/Holt bill would have required certification of specific and articulable facts supporting a belief that the information pertained to (i) a suspected agent of a foreign power or the subject of a national security investigation, (ii) an individual in contact with or directly linked to such an individual, or (iii) the activities of such an individual when the activities were the subject of a national security investigation and the NSL was the least intrusive means to identifying persons involved. The Leahy and Reyes bills had no comparable provision, but would have insisted upon a written statement of facts supporting the conclusion that the information sought was relevant to the investigation for which it was sought.

Both the Nadler bill and the Feingold/Holt bill would have prohibited NSL demands that would have been considered unreasonable or privileged, if sought under a grand jury subpoena duces tecum. The Conyers, Reyes, Leahy, and Sessions bills had no comparable provisions.

Minimization Requirements

In a general sense "minimization" refers to limitations on what information is acquired; how it is acquired; how it is maintained; who has access to it within the capturing agency and under what circumstances; to whom and under what circumstances it is disclosed beyond the capturing agency; how long it is preserved; and when and under what circumstances it is expunged. Minimization standards are drawn with an eye to the purposes for which information is acquired; the authority under which it is acquired; the legitimate interests which may be affected by its acquisition, use, or disclosure; and the governmental interests served by its acquisition, maintenance, use, and disclosure.

Minimization standards ordinarily reinforce statutory and regulatory limitations that attend the use of possibly invasive means of acquiring information. For example, the Foreign Intelligence Surveillance Act (FISA) provides fairly rigorous statutory procedures that must be honored before electronic surveillance or physical searches may be authorized in a national security context. It also supplies statutory conditions under which information acquired using those techniques may be used, and both judicial and legislative oversight procedures. As an additional safeguard, it also calls for the creation and implementation of minimization procedures to protect private information relating to Americans consistent with the U.S. foreign intelligence interests.

Section 119(f) of the USA PATRIOT Improvement and Reauthorization Act directed the Attorney General and the Director of National Intelligence to report to the Congressional intelligence and judiciary committees on the feasibility of NSL minimization procedures "to ensure the protection of the constitutional rights of Untied States persons." The Inspector General's reports noted the need for minimization standards or their regulatory equivalent:

In our first NSL report, the OIG noted the proviso in the Attorney General's NSI Guidelines that national security investigations should use the "least intrusive collection techniques feasible" to carry out the investigations. The OIG reported that we found no clear guidance on how Special Agents should reconcile the Attorney General guidelines' limitations with the expansive authority provided in the NSL statutes. Our concerns over the lack of formal guidance were magnified because of the volume of NSLs generated by the FBI each year and because the information collected is retained for long periods in databases available to many authorized law enforcement personnel.

The Justice Department convened a working group to study and make recommendations concerning possible NSL minimization standards in response to its statutory obligation and the Inspector General's initial report. The working group's proposals apparently have yet to be finalized and accepted, and the Inspector General testified that "final guidance is needed and overdue."

Each of the bills, other than the Sessions proposal, had minimization components. Some took the form of statutory limitations and others instructions for Justice Department guidelines. The Leahy, Feingold/Holt, and Conyers bills would have directed the Attorney General to promulgate minimization procedures within 180 days with features comparable to the FISA definition in 50 U.S.C. 1801(h): procedures that are calculated, consistent with U.S. needs for foreign intelligence information, to minimize the capture and retention of private information (information not publicly available) relating to a U.S. person (and to ban its retention); procedures that preclude the disclosure of private information relating to a U.S. person (that is not foreign intelligence information) that identifies the person, unless necessary to appreciate its significance; and procedures that permit evidence of a crime to be retained and disclosed. The Reyes bill would have provided a 90-day deadline for "procedures for collection, use, and storage of information obtained in response to a national security letter" under any of the four NSL statutes, other than the National Security Act statute, 50 U.S.C. 436. The Feingold/Holt bill would have also insisted that the procedures called for the return or destruction of information acquired outside the scope of the NSL or in a manner that failed to comply with the NSL statute.

The Nadler bill would have given the Attorney General 90 days to promulgate minimization procedures that were calculated to minimize the capture and retention of private information (information not publicly available) relating to a U.S. person (and to ban its dissemination). The additional requirements would have focused on procedures for the return or destruction of information that did not reflect the activity of an agent of a foreign power; that was superfluous; or that exceeded the bounds of the original NSL request.

In provisions modeled after those in FISA, the Nadler and Feingold/Holt bills would also have added explicit provisions describing some of the circumstances under which NSL generated information might be disclosed. They would have:

prohibited disclosure except for lawful purposes and in compliance with minimization procedures; required a statement of origin and of Attorney General approval when used in criminal proceedings; when the information was to be used in federal proceedings, directed that the person to whom the information relates and the tribunal be informed beforehand of the information's source; when the information was to be used in state proceedings, directed that the person to whom the information related, the tribunal, and the Attorney General be informed beforehand of the information's source and intended use; when the information was to be used in either state or federal proceedings, afforded the person to whom the information relates an opportunity to move for suppression based on the NSL statute, the Constitution, or other laws of the United States; authorized the U.S. district court to order suppression should it find that due process so required or that the NSL was not issued in compliance with the NSL statute, the Constitution, or other laws of the United States; and made binding the U.S. district court's suppression decisions except for federal appellate purposes.

The Conyers bill would have required the prior approval of the Attorney General or senior Justice Department official before NSL information could be used in a criminal proceeding.

The Feingold/Holt bill also included a "least intrusive means" section. The current Attorney General's guidelines governing FBI intelligence investigations in this country state that the FBI investigations should use the "least intrusive method feasible" in light of the circumstances. The Feingold/Holt bill would have established a statutory least intrusive means NSL standard and would have required recourse to other sources before the issuance of a NSL directed to a bookstore or library.

Emergency Practices

The IG's first report indicated that in a number of instances the FBI had used "exigent letters" and "certificate letters" rather than NSL statutory authority to "circumvent" NSL requirements. Although they had not relied upon it, the FBI asserted that in some of those instances they might have invoked the voluntary disclosure provisions of 18 U.S.C. 2702.

Section 2702 authorizes communications providers to supply "a governmental entity" with customer communications content and records, "if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications [or information] relating to the emergency."

The Nadler and Feingold/Holt bills would have amended section 2702 to limit the exception to where the risk of death or serious injury is imminent or immediate. The Feingold/Holt bill would also have added a provision to the Right to Financial Privacy Act to allow a comparable disclosure of customer records by financial institutions under similar circumstances. The change seemed intended to make clear that there are no implicit emergency grounds for disclosure of such records.

Reports and Audits

Some of the NSL statutes provide for periodic reports to various Congressional committees. In addition, the USA PATRIOT Improvement and Reauthorization Act instructed the Attorney General to prepare, in unclassified form, an annual report to Congress on the number of NSLs issued in the previous year. The same legislation directed the Inspector General of the Department of Justice to audit and report on the use of NSL authority for calendar years 2002 through 2006.

All but the Sessions and Reyes bills would have expanded the annual statistical report to include a breakdown of the number of NSLs issued concerning U.S. persons, those who were not U.S. persons, the targets of national security investigation, and those who were not the target of a national security investigation. The Leahy, Reyes, and Conyers bills would also have called for Inspector General audits and reports covering the years 2007 through 2009 and annual audits and reports for calendar years 2010 and 2011(as well as 2012 and 2013 under the Reyes and Conyers bill).

Text of NSL Statutes on October 25, 2001 and Now (emphasis added)

12 U.S.C. 3414(a)(5) (on October 25, 2001)

* * *

(a) . . . .

(5)(A) Financial institutions, and officers, employees, and agents thereof, shall comply with a request for a customer's or entity's financial records made pursuant to this subsection by the Federal Bureau of Investigation when the Director of the Federal Bureau of Investigation (or the Director's designee) certifies in writing to the financial institution that such records are sought for foreign counter intelligence purposes and that there are specific and articulable facts giving reason to believe that the customer or entity whose records are sought is a foreign power or the agents of a foreign power as defined in section 1801 of title 50 .

(B) The Federal Bureau of Investigation may disseminate information obtained pursuant to this paragraph only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency.

(C) On a semiannual basis the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests made pursuant to this paragraph.

(D) No financial institution, or officer, employee, or agent of such institution, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to a customer's or entity's financial records under this paragraph.

12 U.S.C. 3414(a)(5) (now)

* * *

(a) ...

(5)(A) Financial institutions, and officers, employees, and agents thereof, shall comply with a request for a customer's or entity's financial records made pursuant to this subsection by the Federal Bureau of Investigation when the Director of the Federal Bureau of Investigation (or the Director's designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director ) certifies in writing to the financial institution that such records are sought for foreign counter intelligence purposes to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States. (B) The Federal Bureau of Investigation may disseminate information obtained pursuant to this paragraph only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency. (C) On the dates provided in section 415b of Title 50, the Attorney General shall fully inform the congressional intelligence committees (as defined in section 401a of Title 50) concerning all requests made pursuant to this paragraph.

(D) Prohibition of certain disclosure.—

(i) If the Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, certifies that otherwise there may result a 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 , no financial institution, or officer, employee, or agent of such institution, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to a customer's or entity's financial records under subparagraph (A).

(ii) The request shall notify the person or entity to whom the request is directed of the nondisclosure requirement under clause (i).

(iii) Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice or legal assistance with respect to the request shall inform such persons of any applicable nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under clause (i).

(iv) At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under this section shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the Director or such designee of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request for financial records under subparagraph (A).

15 U.S.C. 1681u(a), (b)(on October 25, 2001)

(a) Identity of financial institutions

Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer reporting agency shall furnish to the Federal Bureau of Investigation the names and addresses of all financial institutions (as that term is defined in section 3401 of Title 12) at which a consumer maintains or has maintained an account, to the extent that information is in the files of the agency, when presented with a written request for that information, signed by the Director of the Federal Bureau of Investigation, or the Director's designee, which certifies compliance with this section. The Director or the Director's designee may make such a certification only if the Director or the Director's designee has determined in writing that—

(1) such information is necessary for the conduct of an authorized foreign counterintelligence investigation; and

(2) there are specific and articulable facts giving reason to believe that the consumer —

(A) is a foreign power (as defined in section 1801 of title 50) or a person who is not a United States person (as defined in such section 1801 of title 50) and is an official of a foreign power; or

(B) is an agent of a foreign power and is engaging or has engaged in an act of international terrorism (as that term is defined in section 1801(c) of title 50) or clandestine intelligence activities that involve or may involve a violation of criminal statutes of the United States.

(b) Identifying information

Notwithstanding the provisions of section 1681b of this title or any other provision of this subchapter, a consumer reporting agency shall furnish identifying information respecting a consumer, limited to name, address, former addresses, places of employment, or former places of employment, to the Federal Bureau of Investigation when presented with a written request, signed by the Director or the Director's designee, which certifies compliance with this subsection. The Director or the Director's designee may make such a certification only if the Director or the Director's designee has determined in writing that—

(1) such information is necessary to the conduct of an authorized counterintelligence investigation; and

(2) there is information giving reason to believe that the consumer has been, or is about to be, in contact with a foreign power or an agent of a foreign power (as defined in section 1801 of title 50).

* * *

15 U.S.C. 1681u(a), (b)(now)

(a) Identity of financial institutions

Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer reporting agency shall furnish to the Federal Bureau of Investigation the names and addresses of all financial institutions (as that term is defined in section 3401 of Title 12) at which a consumer maintains or has maintained an account, to the extent that information is in the files of the agency, when presented with a written request for that information, signed by the Director of the Federal Bureau of Investigation, or the Director's designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by the Director , which certifies compliance with this section. The Director or the Director's designee may make such a certification only if the Director or the Director's designee has determined in writing, that such information is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

(b) Identifying information

Notwithstanding the provisions of section 1681b of this title or any other provision of this subchapter, a consumer reporting agency shall furnish identifying information respecting a consumer, limited to name, address, former addresses, places of employment, or former places of employment, to the Federal Bureau of Investigation when presented with a written request, signed by the Director or the Director's designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge of a Bureau field office designated by the Director , which certifies compliance with this subsection. The Director or the Director's designee may make such a certification only if the Director or the Director's designee has determined in writing that such information is sought for the conduct of an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States .

* * *

18 U.S.C. 2709 (as of October 25, 2001)

(a) Duty to provide.—A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

(b) Required certification.—The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director, may—

(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that—

(A) the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to foreign counterintelligence investigation; and

( B) there are specific and facts giving reason to believe that the person or entity to whom the information sought pertains is a foreign power or an agent of a foreign power as defined in section 101 of the Foreign intelligence Surveillance Act of 1978 (50 U.S.C. 1801 ); and

(2) request the name, address, and length of service of a person or entity if the Director (or his designee in a position not lower than Deputy Assistant Director) certifies in writing to the wire or electronic communication service provider to which the request is made that—

(A) the information sought is relevant to an authorized foreign counterintelligence investigation; and

(B) There are specific and articulable facts giving reason to believe that communication facilities registered in the name of the person or entity have been used, through the services of such provider, in communications with —

(i) an individual who is engaging or has engaged in international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States; or

(ii)a foreign power or agent of a foreign power under circumstances giving reason to believe that the communication concerned international terrorism as defined in section 101(c) of the Foreign Intelligence Surveillance Act or clandestine intelligence activities that involve or may involve a violation of the criminal statutes of the United States .

(c) Prohibition of certain disclosure.—No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

(d) Dissemination by bureau.—The Federal Bureau of Investigation may disseminate information and records obtained under this section only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency.

(e) Requirement that certain congressional bodies be informed.—On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all requests made under subsection (b) of this section.

18 U.S.C. 2709 (now)

(a) Duty to provide.—A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.

(b) Required certification.—The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director , may—

(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States. ; and

(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States .

(c) Prohibition of certain disclosure.—

(1) If the Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, certifies that otherwise there may result a 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 , no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

(2) The request shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1).

(3) Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice or legal assistance with respect to the request shall inform such person of any applicable nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).

(4) At the request of the Director of the Federal Bureau of Investigation or the designee of the Director, any person making or intending to make a disclosure under this section shall identify to the Director or such designee the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the Director or such designee of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request under subsection (a).

(d) Dissemination by bureau.—The Federal Bureau of Investigation may disseminate information and records obtained under this section only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency.

(e) Requirement that certain congressional bodies be informed.—On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all requests made under subsection (b) of this section.

(f) Libraries. — A library (as that term is defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), the services of which include access to the Internet, books, journals, magazines, newspapers, or other similar forms of communication in print or digitally by patrons for their use, review, examination, or circulation, is not a wire or electronic communication service provider for purposes of this section, unless the library is providing the services defined in section 2510(15) ( " electronic communication service " ) of this title.

15 U.S.C. 1681v (as of October 25, 2001)

NONE. This section was created by the USA PATRIOT Act, effective October 26, 2001.

15 U.S.C. 1681v (now)

(a) Disclosure

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.

(b) Form of certification

The certification described in subsection (a) of this section shall be signed by a supervisory official designated by the head of a Federal agency or an officer of a Federal agency whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate.

(c) Confidentiality

(1) If the head of a government agency authorized to conduct investigations of intelligence or counterintelligence activities or analysis related to international terrorism, or his designee, certifies that otherwise there may result a 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, no consumer reporting agency or officer, employee, or agent of such consumer reporting agency, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request), or specify in any consumer report, that a government agency has sought or obtained access to information under subsection (a) of this section.

(2) The request shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1).

(3) Any recipient disclosing to those persons necessary to comply with the request or to any attorney to obtain legal advice or legal assistance with respect to the request shall inform such persons of any applicable nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under paragraph (1).

(4) At the request of the authorized government agency, any person making or intending to make a disclosure under this section shall identify to the requesting official of the authorized government agency the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the requesting official of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request for information under subsection (a) of this section.

(d) Rule of construction

Nothing in section 1681u of this title shall be construed to limit the authority of the Director of the Federal Bureau of Investigation under this section.

(e) Safe harbor

Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent or employee thereof making disclosure of consumer reports or other information pursuant to this section in good-faith reliance upon a certification of a government agency pursuant to the provisions of this section shall not be liable to any person for such disclosure under this subchapter, the constitution of any State, or any law or regulation of any State or any political subdivision of any State.

(f) Reports to Congress

(1) On a semi-annual basis, the Attorney General shall fully inform the Committee on the Judiciary, the Committee on Financial Services, and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary, the Committee on Banking, Housing, and Urban Affairs, and the Select Committee on Intelligence of the Senate concerning all requests made pursuant to subsection (a) of this section.

(2) In the case of the semiannual reports required to be submitted under paragraph (1) to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, the submittal dates for such reports shall be as provided in section 415b of Title 50.

50 U.S.C. 436 (as of October 25, 2001)

(a) Generally

(1) Any authorized investigative agency may request from any financial agency, financial institution, or holding company, or from any consumer reporting agency, such financial records, other financial information, and consumer reports as may be necessary in order to conduct any authorized law enforcement investigation, counterintelligence inquiry, or security determination. Any authorized investigative agency may also request records maintained by any commercial entity within the United States pertaining to travel by an employee in the executive branch of Government outside the United States.

(2) Requests may be made under this section where—

(A) the records sought pertain to a person who is or was an employee in the executive branch of Government required by the President in an Executive order or regulation, as a condition of access to classified information, to provide consent, during a background investigation and for such time as access to the information is maintained, and for a period of not more than three years thereafter, permitting access to financial records, other financial information, consumer reports, and travel records; and

(B)(i) there are reasonable grounds to believe, based on credible information, that the person is, or may be, disclosing classified information in an unauthorized manner to a foreign power or agent of a foreign power;

(ii) information the employing agency deems credible indicates the person has incurred excessive indebtedness or has acquired a level of affluence which cannot be explained by other information known to the agency; or

(iii) circumstances indicate the person had the capability and opportunity to disclose classified information which is known to have been lost or compromised to a foreign power or an agent of a foreign power.

(3) Each such request—

(A) shall be accompanied by a written certification signed by the department or agency head or deputy department or agency head concerned, or by a senior official designated for this purpose by the department or agency head concerned (whose rank shall be no lower than Assistant Secretary or Assistant Director), and shall certify that—

(i) the person concerned is or was an employee within the meaning of paragraph (2)(A);

(ii) the request is being made pursuant to an authorized inquiry or investigation and is authorized under this section; and

(iii) the records or information to be reviewed are records or information which the employee has previously agreed to make available to the authorized investigative agency for review;

(B) shall contain a copy of the agreement referred to in subparagraph (A)(iii);

(C) shall identify specifically or by category the records or information to be reviewed; and

(D) shall inform the recipient of the request of the prohibition described in subsection (b) of this section.

(b) Disclosure of requests

Notwithstanding any other provision of law, no governmental or private entity, or officer, employee, or agent of such entity, may disclose to any person that such entity has received or satisfied a request made by an authorized investigative agency under this section.

* * *

50 U.S.C. 436 (now)

(a) Generally

(1) Any authorized investigative agency may request from any financial agency, financial institution, or holding company, or from any consumer reporting agency, such financial records, other financial information, and consumer reports as may be necessary in order to conduct any authorized law enforcement investigation, counterintelligence inquiry, or security determination. Any authorized investigative agency may also request records maintained by any commercial entity within the United States pertaining to travel by an employee in the executive branch of Government outside the United States.

(2) Requests may be made under this section where—

(A) the records sought pertain to a person who is or was an employee in the executive branch of Government required by the President in an Executive order or regulation, as a condition of access to classified information, to provide consent, during a background investigation and for such time as access to the information is maintained, and for a period of not more than three years thereafter, permitting access to financial records, other financial information, consumer reports, and travel records; and

(B)(i) there are reasonable grounds to believe, based on credible information, that the person is, or may be, disclosing classified information in an unauthorized manner to a foreign power or agent of a foreign power;

(ii) information the employing agency deems credible indicates the person has incurred excessive indebtedness or has acquired a level of affluence which cannot be explained by other information known to the agency; or

(iii) circumstances indicate the person had the capability and opportunity to disclose classified information which is known to have been lost or compromised to a foreign power or an agent of a foreign power.

(3) Each such request—

(A) shall be accompanied by a written certification signed by the department or agency head or deputy department or agency head concerned, or by a senior official designated for this purpose by the department or agency head concerned (whose rank shall be no lower than Assistant Secretary or Assistant Director), and shall certify that—

(i) the person concerned is or was an employee within the meaning of paragraph (2)(A);

(ii) the request is being made pursuant to an authorized inquiry or investigation and is authorized under this section; and

(iii) the records or information to be reviewed are records or information which the employee has previously agreed to make available to the authorized investigative agency for review;

(B) shall contain a copy of the agreement referred to in subparagraph (A)(iii);

(C) shall identify specifically or by category the records or information to be reviewed; and

(D) shall inform the recipient of the request of the prohibition described in subsection (b) of this section.

(b) Prohibition of certain disclosure

(1) If an authorized investigative agency described in subsection (a) of this section certifies that otherwise there may result a 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 , no governmental or private entity, or officer, employee, or agent of such entity, may disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that such entity has received or satisfied a request made by an authorized investigative agency under this section.

(2) The request shall notify the person or entity to whom the request is directed of the nondisclosure requirement under paragraph (1).

(3) Any recipient disclosing to those persons necessary to comply with the request or to an attorney to obtain legal advice or legal assistance with respect to the request shall inform such persons of any applicable nondisclosure requirement. Any person who receives a disclosure under this subsection shall be subject to the same prohibitions on disclosure under paragraph (1) .

(4) At the request of the authorized investigative agency, any person making or intending to make a disclosure under this section shall identify to the requesting official of the authorized investigative agency the person to whom such disclosure will be made or to whom such disclosure was made prior to the request, except that nothing in this section shall require a person to inform the requesting official of the identity of an attorney to whom disclosure was made or will be made to obtain legal advice or legal assistance with respect to the request under subsection (a) of this section.

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