Congress Seeks to Limit National Security Letter Powers

On March 30, Congress took its first step toward reforming the USA PATRIOT Act when Reps. Jerrold Nadler (D-NY) and Jeff Flake (R-AZ) introduced the National Security Letters Reform Act of 2009 (H.R. 1800). The bill is designed to narrow the powers granted to the executive branch under the National Security Letter (NSL) provision of the Patriot Act. Public interest advocates contend that the NSL is only one component of the Patriot Act in need of reform.

The use of NSLs dates back to the Right to Financial Privacy Act of 1978, which gave the Federal Bureau of Investigation (FBI) authority to demand records about American citizens without judicial oversight. When it passed the Patriot Act in 2001, Congress greatly expanded executive branch authority to use the letters. Under the Patriot Act, the federal government may use the letters to collect information on individuals simply because those individuals may be relevant to an investigation. The letters are generally submitted to telephone companies, Internet providers, and financial institutions and effectively serve as subpoenas without the need for a warrant.

NSL Problems

Since the Patriot Act expanded the NSL authority, there have been allegations that the executive branch has abused the power, including imposing gag orders. Department of Justice (DOJ) Inspector General reports released in 2007 and 2008 concluded that the FBI both sought and obtained information "outside of the normal approval process" and that the FBI understated problems concerning the law enforcement agency’s compliance with NSL restrictions. In hundreds of cases, poor record keeping prevented the inspector general from being able to tell if proper legal procedure had been followed.

Although the FBI attempted to reform its use of the letters by adding extra review processes and increasing personnel training, the efforts failed to effect any change. The 2008 inspector general report, which reviewed NSL activities for 2006 and assessed the FBI’s corrective actions, still found eleven blanket NSLs that did not comply with Bureau policy and eight letters that imposed unlawful nondisclosure requirements. Further, the FBI failed to comply with the narrowed use of gag orders required by the Second Circuit Court of Appeals' ruling in Doe v. Holder.

Reforming the Patriot Act

The new legislation would increase judicial oversight of NSLs by limiting the gag order to 30 days and requiring that FBI requests for extensions of gag orders be made to a district court within any district that the investigation is taking place. Gag order extensions would be limited to a total of 180 days. The legislation also requires that the FBI specially demonstrate how lifting the gag order would endanger evidence, the safety of an individual, or the national security of the United States. Moreover, anyone receiving a NSL would have the right to petition a court to modify or set aside the letter or to suppress the evidence gathered as a result of the letter. The legislation goes even further to require the destruction of information that is wrongly obtained by the FBI pursuant to an NSL request.

Similar legislation was considered by Congress in 2007. That bill was introduced in the Senate by Russ Feingold (D-WI) but never came up for a vote.

Civil liberties and government accountability groups have called for further reforms of the Patriot Act that go beyond addressing the NSL problems. The American Civil Liberties Union (ACLU) recently issued a report, Reclaiming Patriotism: A Call to Reconsider the Patriot Act, that calls for reform of the Material Support Statute that criminalizes various activities regardless of whether they are intentionally meant to further terrorist goals. Opponents of the material support statue complain that the provisions have reduced humanitarian aid to the Middle East as charities worry about possible prosecution if some individuals helped are in some way connected to terrorism. Also, the ACLU has sought to remove the ideological exclusion section of the law, which denies admission to foreign nationals who support political or social groups that endorse acts of terrorism. The contention is that such support is an expression of freedom of speech, not an illegal act.

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