Hon. Pat Roberts, Chair
Hon. John D. Rockefeller IV, Vice Chair
Senate Select Committee on Intelligence
Hon. Porter J. Goss, Chair
Hon. Jane Harmon, Ranking Member
House Permanent Select Committee on Intelligence
Re: Expanded authority for ""national security letters"" in H.R. 2417 and S. 1025, the Intelligence Authorization Act for FY2004
Dear Senators Roberts and Rockefeller and Representatives Goss and Harmon:
On behalf of the American Civil Liberties Union and its more than 400,000 members, we write to express our alarm that this year's intelligence authorization bill would expand the reach of secret national security letters (NSLs) that force businesses and other institutions to disclose sensitive information about their customers without any judicial review or oversight. This major expansion of government power should not be adopted without adequate debate and public hearings before the intelligence and judiciary committees.
The Federal Bureau of Investigation (FBI) may issue NSLs to compel, without a court order, the disclosure of three broad categories of records - records of ""financial institutions,"" credit reports, and communications service provider (telephone or Internet) billing and transactional records. The intelligence authorization bill would change the definition of ""financial institution"" so that records in the hands of a wide array of businesses - including travel agencies and pawnbroker shops - could now be obtained using this power.
NSLs are a type of administrative subpoena issued by FBI agents. They do not require the approval of a judge, grand jury or federal prosecutor. As amended by section 505 of the USA PATRIOT Act, NSLs no longer require any individual suspicion that the person whose records are sought is involved with terrorism, espionage, or other criminal activities, but can be issued whenever deemed relevant to an intelligence or terrorism investigation. An automatic gag order bars the recipient of an NSL from informing anyone of its existence - including the person whose records are being sought, or a public interest group such as the ACLU.
Section 354 of the Senate-passed bill (section 334 of the House-passed bill) changes the definition of ""financial institution"" so that many more businesses must comply with NSLs. Financial institutions are currently defined to include (among others) banks, loan and trust companies, savings and loans, and credit unions. 12 U.S.C. § 3401(1). The bill would dramatically expand this definition to include a whole host of businesses and other institutions, including travel agencies, pawnbrokers, stock brokers, the post office, casinos, or any other business ""whose cash transactions have a high degree of usefulness in criminal, tax, or regulatory matters"" as designated by the Secretary of the Treasury. 31 U.S.C. § 5312(a)(1). Records held by these businesses about their customers must be turned over regardless of whether they concern financial matters, because ""financial records"" are defined as ""any record held by a financial institution pertaining to a customer's relationship with that institution."" 12 U.S.C. § 3401(2).
A business or other institution that receives an NSL must turn over the records, and may not inform their customers that the government is seeking their records. As a result of this secrecy, most Americans would never know that their personal records have been obtained by the government. Indeed, when the ACLU and other privacy organizations sought disclosure about the use of NSLs under the Freedom of Information Act, the government refused to release even generic information, such as the numbers of NSLs issued, instead providing six pages of internal reports that were entirely blacked out.
Under section 215 of the USA PATRIOT Act, the government may compel disclosure of any records or ""tangible things"" in intelligence investigations - including records that may not be obtained with an NSL - with a ""business records"" order from the Foreign Intelligence Surveillance Court. Passage of the bill in its current form would effectively eliminate this court order requirement for many records. The government could obtain a list of your purchases at the local jewelry store, the itinerary prepared by your travel agent, the forwarding address you left at the post office, or records of the kind of car you bought - all without your knowledge and without any court review at all.
Eliminating the PATRIOT Act's court order requirement though the enactment of administrative subpoenas has been very controversial. Although the ACLU does not believe this court order requirement provides for sufficiently meaningful review, defenders of the PATRIOT Act have argued it is a safeguard against abuse. In an interview with his hometown newspaper, House Judiciary Committee Chairman F. James Sensenbrenner (R-WI) noted, ""You can't in one breath defend [the] Patriot Act, saying [intelligence] warrants are reviewed by a judge, then in the second breath say we'll have administrative subpoenas"" that are not reviewed by a judge.
We urge you to drop this section in the final conference report on the intelligence bill so that there can be more study of this far-reaching proposal before it becomes law. At a minimum, any expansion of NSL authority should be limited to true financial records from genuine financial institutions, and should restore the requirement of individual suspicion.
Thank you for your consideration of our views.
Sincerely,
Laura W. Murphy
Director, Washington Legislative Office
Timothy H. Edgar
Legislative Counsel
cc: Members of the Conference Committee on H.R. 2417