Rep. Nadler’s H.R. 3189, the National Security Letter Reform Act of 2007 makes substantial changes to the government’s authority to issue National Security Letters (NSLs) and the attendant gag to meet constitutional muster.
Section 1. Short Title.
Entitles the bill the “National Security Letters Reform Act of 2007”
Section 2. National Security Letters Defined.
Makes the bill applicable to the four NSLs that are used to collect information on the public:
18 U.S.C. 2709(a) (communication service provider records); Section 626 of the Fair Credit Reporting Act (financial info and consumer reports); Section 627 of the Fair Credit Reporting Act (credit agency consumer records for counterterrorism investigations)Section 1114(a)(5)(A) of the Right to Financial Privacy Act (financial records)
Section 3. Procedural Protection for National Security Letters
Sec. 3a. Standard. Returns the standard of issuance to “specific and articulable facts giving reason to believe that the information or records sought by that letter pertain to a foreign power or agent of a foreign power.”
Issues: Revokes the over-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 instead of trolling through, keeping, and using information on innocent individuals.
Sec. 3b. First Amendment Limitations. States that NSLs should not be issued in connection with an investigation of a United States person solely upon the basis of activities protected by the First Amendment in accordance with the Attorney General’s (AG) guidelines on terrorism investigations.
Issues: The current NSL statutes includes no similar reference to the AG guidelines. Because the guidelines can be changed at any time by the AG, it may be preferable to take this reference out.
Sec. 3c. Other limitations on issuance. Subjects NSLs to the same standard as other administrative subpoenas by requiring that they not be “unreasonable” or contain otherwise privileged information. Also requires that NSLs notify the recipient that they have the right to seek judicial review and the procedures for doing so.
Issues: Some NSLs released in response to recent FOIA requests contain very strong nondisclosure language that may lead people to believe they do not have the ability to speak to a lawyer. Affirmatively requiring NSLs to inform recipients of their rights will help recipients determine whether to comply with or challenge an NSL.
Sec. 3d. Nondisclosure orders. Allows the FBI to issue automatic 30 day gags on NSL recipients, but allows NSL recipients to consult an attorney or those people necessary to comply with the order. After 30 days, the FBI may apply to a federal court in 180 day increments for extensions of the gag. The FBI must demonstrate that there are specific and articulable facts that disclosure will result in (A) endangering the life or physical safety of any person; (B) flight from prosecution; (C) destruction of or tampering with evidence; (D) intimidation of potential witnesses, or (E) 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. The court will apply the constitutionally mandated standard of review: whether the gag is narrowly tailored to meet a compelling state interest.
Issues: 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.
Sec. 3e. Judicial Review. Permits recipients to challenge NSLs and their gags in court. Allows the court to determine whether the orders or gags violate the statute, the constitution or some other legal right or privilege. Relevant information shall be handled in accordance with the Classified Information Procedures Act.
Issues: The current statutes severely limit 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 demonstrated, 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. 3f. Use of Information. Requires that the Attorney General give advance authorization before NSL acquired information is used in criminal proceedings. Requires federal, state, or local governments to notify the person whose information was collected by NSL before it is used against him or her in trials or hearings before courts, regulatory bodies, etc. Grants the person whose information is being used the opportunity to seek suppression of the information if the NSL violated the authorizing statute or the Constitution. Directs courts to hear government arguments about disclosure or suppression in camera. Access to NSL information on the part of the targeted person is governed by the Classified Information Procedures Act.
Sec. 4. Cause of Action for Misuse of NSLs. Allows the person whose information was acquired under an NSL to seek actual damages or $50,000, whichever is greater, if the NSL was issued “contrary to law or the certification on which it was based was without factual foundation.”
Sec. 5. Sunset. Creates a 5 year sunset on the bill. Directs the Attorney General to report to Congress about the utility of NSLs as compared to other authorities upon the sunset.
Issues: 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. 6. Minimization Procedures, Disposal of Wrongly Acquired Information, and Congressional Reporting. Requires the Attorney General to establish, and submit to Congress, minimization procedures – rules about the use and dissemination of information – relating to NSLs in unclassified format. The minimization procedures deal with the same topics as the Foreign Intelligence Surveillance Act and how that law deals with terrorism investigations and the use of records, and information collected through physical searches, and wiretaps. Requires the government to dispose of information collected without the legal authority of an NSL. Requires reporting on NSLs and applicable procedures including 1) the total number, 2) the number by different authority (communication, versus financial, versus credit information), 3) the number of US persons affected by each authority, 4) the number, as applied to the different categories of non-US persons, 5) the description of minimization procedures, 6) a summary of challenges made by recipients in court, 7) a description of how NSLs have aided investigations, and 8) a description of how NSLs have aided prosecutions.
Issues: 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. Finally, the existence of statutorily required and unclassified minimization procedures is a substantial step in the right direction. 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.
Sec. 7. Regulation of So-Called “Exigent Letters.” Amends the standard for when electronic communication service providers may voluntarily turn over communications and records to the government. Requires that the provider have a “reasonable belief” that there is “imminent” danger of death or serious physical injury to any person to require disclosure without delay. Requires that the AG report to the Judiciary Committees on a semiannual basis about how many of these disclosures were made and the factual basis for such.
Issues: 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 provide Congress with the information necessary to evaluate whether this provision is being abused.