ACLU Section by Section of S. 2088, The National Security Letter Reform Act of 2007

NSL = National Security Letter
FBI = Federal Bureau of Investigation
FISA = Foreign Intelligence Surveillance Act
FISC = Foreign Intelligence Surveillance Court
AFP = Agent of a Foreign Power
AG = Attorney General

Sec. 1. Title and Table of Contents. Names the bill “NSL Reform Act of 2007.”

Sec. 2. NSLs for Communications Subscriber Records.

Records available: Permits the FBI to obtain subscriber information such as name, address and means of payment on consumers.

• Amends statute so that only “top line” data can be obtained by an NSL. More sensitive information, such as records of actual phone calls made or received, must be obtained through the FISC or grand jury subpoena.

Standard: Records must be relevant to an “ongoing, authorized and specifically identified national security investigation” and that there are specific and articulable facts that the records (i) pertain to a suspected agent of a foreign power, (ii) pertain to an individual in contact with a suspected AFP who is the target of an ongoing authorized and specifically identified investigation, or (iii) pertain to the activities of a suspected AFP who is the target of an ongoing authorized and specifically identified investigation, and obtaining the records “is the least intrusive means that could be used to identify persons believed to be involved in such activities.” NSLs should not be issued solely on the basis of First Amendment activity.

• Revokes the overly lenient “relevance” test that has been in place since the PATRIOT Act passed in 2001. The Justice Department’s Inspector General (IG) report of 2008 found that just fewer than 50,000 NSLs had been issued in 2006, with a majority of them collecting information on US persons. The 2007 report also found that many NSLs were issued against people two and three times removed from an actual suspected terrorist. It is absolutely vital that Congress rein in this authority by focusing scarce resources on suspects, their associates and their activities instead of trolling through, keeping and using information on innocent individuals.

Gag: Permits the FBI to issue initial 30 day gags with NSLs, if it certifies that the gag is narrowly tailored to meet one of the following harms of disclosure: (I) endangering the life or physical safety of any person; (II) flight from prosecution; (III) destruction of or tampering with evidence; (IV) intimidation of potential witnesses; (V) interference with diplomatic relations; or (VI) otherwise seriously endangering the national security of the US by alerting a target, a target’s associates or the foreign power of which the target is an agent, of the Government’s interest in the target. Requires the FBI to affirmatively tell the service provider that the gag is lifted if the facts requiring the gag end before the initial 30 day expiration date.

Allows the government to apply for 180 day extensions of the gag from a federal court on the grounds above.

• The current gag, as amended by the 2006 PATRIOT Reauthorization, authorizes the FBI unilaterally to impose blanket, indefinite, prior restraints on speech and strictly confines an NSL recipient’s ability to challenge the gag in court. This past September, a federal court struck down one of the NSL statutes in its entirety after finding the NSL statute’s gag provisions violated the First Amendment and the principle of separation of powers. The court held that gag orders must be subject to prompt judicial review and that courts must be permitted to invalidate gag orders that are not narrowly tailored to a compelling government interest. As long as the NSL statutes foreclose this kind of judicial review, the statutes are unconstitutional and the government risks losing the NSL authority altogether.

Minimization: Directs the Attorney General to establish minimization procedures governing the retention and dissemination of information collected by NSLs within six months. Procedures shall prohibit nonpublicly available information from being disseminated with identifying information unless it is necessary to understand or assess intelligence information; shall allow for use of information that contains evidence of a crime; and shall provide for return or destruction of information once the person it relates to is no longer of interest or if the information delivered to the FBI is outside the permissible scope of an NSL.

• The Justice Department’s Inspector General found that improperly collected information is often uploaded into databases and used by federal agencies. The affirmative requirement to destroy such information set forth in this bill is necessary. Further, the reporting to Congress is far more detailed, and therefore instructive, than the current overall annual number of NSLs that Congress receives. The bill would be even stronger if the use and dissemination of information, especially the destruction of innocent and non-relevant information, was regulated by statute.

Reporting: Requires semiannual reports to the Judiciary and Intelligence Committees about minimization procedures, any court challenges to NSLs, how information gathered by NSLs have helped intelligence investigations and criminal prosecutions.

• The mandatory Congressional reporting is far more detailed, and therefore instructive, than the current overall annual number of NSLs that Congress receives.

Use of Information: Requires the AG to grant authorization before NSL information is used in criminal proceedings. Requires federal, state and local officials to notify a person before NSL information is used against him in a trial, hearing, proceeding, etc. Allows an aggrieved person to seek suppression of NSL information on the grounds that the information was acquired in violation of the Constitution or the NSL statute. If an aggrieved person seeks to suppress NSL information, or discover it in litigation, the government may require the court to review information bearing on that decision in camera by certifying that disclosure would harm national security. Aggrieved persons shall have access to NSL information as governed by the Classified Information Procedures Act.

• Largely tracks with requirements for the use of information collected by trap and trace orders, wiretaps and physical searches under FISA. Requires that access to information by an aggrieved person be governed by the Classified Information Procedures Act that has been in operation for nearly 30 years in the context of criminal, but classified, proceedings.

Sec. 3. NSLs for Financial Records. Permits the FBI to seek the following information from financial institutions: the name and address of the customer; length of relationship with institution; or account numbers.

• Amends statute so that only “top line” data can be received by NSL. More sensitive information, such as actual financial transactions, must be obtained through the FISC or grand jury subpoena.

Applies the standard for issuance, gag, minimization requirements, reporting and use of information as those provisions apply to the communication records NSL discussed above.

Sec. 4. NSLs for Certain Consumer Report Records. Permits the FBI to obtain the following information from a consumer reporting agency: the name and current and former addresses of a consumer; the current and former place of employment of a consumer; and the names and address of financial institutions where the consumer has or had an account.

Applies the standard for issuance, gag, minimization requirements, reporting and use of information as those provisions apply to the communication records NSL discussed above.

Sec. 5. Judicial Review of NSLs. Allows the recipient of one of the three NSLs above – or of a National Security Act NSL for investigation of US intelligence employees – to challenge a gag before a federal judge on the basis of any legal right or privilege of the recipient, or for the NSLs failure to meet statutory requirements. The court shall review for the standards mentioned above for initial issuance, and determine whether the gag is narrowly tailored. Aggrieved person shall have access to relevant information consistent with the Classified Information Procedures Act.

• The current statutes severely limit the courts’ ability to review gags. Indeed, courts are required to treat certain FBI certifications about the need for disclosure as “conclusive” and cannot be set aside unless the certifications are made in bad faith. The Southern District of New York in Doe v. Mukasey found that this violated both the First Amendment and the principle of separation of powers. The constitutionally mandated court review of a prior restraint on speech is whether the gag is narrowly tailored to meet a compelling state interest, and therefore the current statute violates the First Amendment. The court also found that Congress’ attempt to thwart the judicial branch’s constitutional role violated separation of powers.

Sec. 6. NSL Compliance Program and Tracking Database. Requires tracking of all NSLs, including a copy of the NSL itself, the date of issuance, a description of the information sought, whether it applied to US or non-US persons, the specific authorized investigation it was sought in connection with, whether the information is sought on an actual target of an investigation, when the information was received, and if applicable destroyed, and whether the information was disclosed for law enforcement purposes.

Sec. 7. Public Reporting on NSLs. Breaks down public reporting into the number of NSLs issued for US persons versus non-US persons, and the number of NSLs issued against subjects of investigations and non-subjects.

Sec. 8. Sunset. Returns NSLs to their pre-PATRIOT Act form on December 31, 2009.

• If these statutes were to revert to pre-PATRIOT standards, they would still contain unconstitutional gags. The gag in this bill should not sunset as it provides procedural protections that were absent even in pre-PATRIOT NSLs.

Sec. 9. Privacy Protection for PATRIOT 215 Orders. Require that FISC applications for a court order for “any tangible thing” be based on specific and articulable facts providing reason to believe that they (i) pertain to a suspected AFP, or (ii) a person in contact with an AFP if the circumstances, suggest that the records will be relevant to an ongoing, authorized and specifically identified investigation of that AFP.

Gags and use of information are governed under the same rules as for NSLs above.

Sec. 10. Judicial Review of 215 Orders. Permits recipients to challenge 215 orders and their attendant gags on the same standards as NSLs above.

• The gag for 215 orders suffers the same failings as the NSL statutes discussed above. Requiring prompt, meaningful review of the gag will prevent First Amendment violations.

Sec. 11. Resources for FISA Applications. Provides additional resources to fund an electronic filing system for FISA applications, personnel and information technology.

• Recent debate has included a number of complaints that the FISA application process is too burdensome. While there is some evidence to the contrary, these new resources will make sure that the FISA process is efficient and responsive to the needs of the government.

Sec. 12. Enhanced Protections for Emergency Disclosures. Amends the Electronic Communications Privacy Act so that companies can voluntarily release records and communications to the government if they have a reasonable belief that there is an immediate danger. The government must notify a court of the disclosure, and the basis for the emergency.

Explicitly authorizes financial institutions and consumer reporting agencies to release records under the same standards and procedures as above.

• The statue currently only requires a “good faith” belief and does not require that the danger be imminent. This returns the statute to pre-PATRIOT levels. The IG found that so-called “exigent” letters were being issued, perhaps in accordance with this section that allows the providers to release information. This would reinvigorate the standard so that extra-NSL sharing of information is truly only in emergency situations, and provides Congress with the information necessary to evaluate whether this provision is being abused. Also creates a new emergency authority to share financial and consumer data with after the fact court notification.

Sec. 13. Data Retention. Clarifies that when the government requests a company to preserve evidence pending a court order or other process, the company wait for the actual order or other process before divulging information.

Sec. 14. Least Intrusive Means. Directs the AG to issue guidelines requiring that the least intrusive means are used in national security investigations. The Guidelines shall include instruction with particular attention to the effect of privacy on individuals, the potential damage to the reputation of individuals and any special First Amendment concerns including NSLs directed libraries or booksellers.