By Cliff Montgomery – Apr. 23rd, 2015
Congress has failed to curb U.S. intelligence agencies’ use of National Security Letters (NSLs) – documents which in essence are administrative subpoenas created without judicial approval – even though two federal courts have declared that “NSLs, read to their fullest, are inconsistent with the proscriptions of the First Amendment right to free speech and the principles of separation of powers,” according to a little-noticed federal report released this January.
The study was prepared by the Congressional Research Service (CRS). The CRS is “a division of the Library of Congress,” which “provides high-quality research and analysis for committees and members of Congress,” states the Gallagher Law Library at the University of Washington School of Law.
“These reports, studies, and issue briefs are succinct and well-researched and many are regularly updated,” adds the Gallagher Library.
Below, offers for its readers some of the CRS study’s most salient points:
“A National Security Letter (NSL) is roughly comparable to an administrative subpoena. An NSL needs no prior judicial approval. 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.
“The 111th and 112th Congresses as well as the 113th Congress saw a number of proposals to amend NSL authority. None were enacted. […]
“Various intelligence agencies use NSLs to demand certain customer information from communications providers, financial institutions, and consumer credit reporting agencies under the Right to Financial Privacy Act, the Fair Credit Reporting Act, the National Security Act, and the Electronic Communications Privacy Act.
“Congress weighed several NSL amendments during the 113th Congress. The House passed one, H.R. [House legislation] 3361. The Senate failed to provide the three-fifths vote necessary for cloture on another, S. [Senate bill] 2685. Yet in the end, the 113th Congress adjourned without enacting any of the proposed NSL amendments.
“The bills in the 113th Congress that would have amended the NSL statutes proposed adjustments in four areas: (1) the grounds for issuing an NSL, (2) confidentiality requirements and judicial review, (3) reports and audits, and (4) sunset and repeal. S. 1551 (Wyden), H.R. 3361 (House-passed), S. 1599 (Leahy), and S. 2685 (Leahy) would have defined more precisely the circumstances under which an NSL might be issued.
“Initially, the U.S. Court of Appeals for the Second Circuit and later the District Court for the Northern District of California concluded that the statutory secrecy and judicial review provisions relating to NSLs, read to their fullest, are inconsistent with the proscriptions of the First Amendment right to free speech and the principles of separation of powers. S. 1215 (Leahy), H.R. 3361 (House-passed), S. 1599 (Leahy), and S. 2685 (Leahy) would have amended the provisions in question roughly along lines suggested by the Second Circuit.
“In the past, Congress has counter-balanced expanded NSL authority with increased oversight mechanisms. For example, it directed the Department of Justice’s Inspector General to conduct an audit of NSL authority from 2001 to 2006, and instructed the Attorney General to report to Congress annually on the extent of NSL use.
“Several proposals in the 113th Congress would have supplemented the existing mechanisms. S. 1215, S. 1551, and S. 1599 would have called for greater detail in the Attorney General’s annual reports. H.R. 3035 (Lofgren), S. 1551, and H.R. 3361 and S. 1599 would have authorized recipients to issue public reports on the NSLs they receive.
“As an additional oversight tool, S. 1215 and S. 1599 would have returned all but two of the NSL statutes to their pre-USA PATRIOT Act form, effective June 1, 2015. The exceptions would have been the National Security Act NSL statute, which evokes few privacy concerns, and the sweeping, USA PATRIOT Act-born, Fair Credit Reporting Act NSL statute, which the bills would have repealed.”
