Frequently Asked Questions
NATIONAL SECURITY LETTERS
What is a National Security Letter?
A National Security Letter (NSL) is a letter request for information from a third party that is issued by the FBI or by other government agencies with authority to conduct national security investigations.
What statutes provide NSL authority?
NSL authority is provided by five provisions of law:
- TheRight to Financial Privacy Act, 12 U.S.C.§ 3414(a)(5), for financial institution customer records;
- the Fair Credit Reporting Act, 15 U.S.C.§ 1681u(a) and (b), for a list of financial institution identities and consumer identifying information from a credit reporting company;
- the Fair Credit Reporting Act, 15 U.S.C. § 1681v, for a full credit report in an international terrorism case. This provision was created by the 2001 USA PATRIOT Act;
- the Electronic Communications Privacy Act, 18 U.S.C. § 2709, for billing and transactional communication service provider records from telephone companies and internet service providers; and
- the National Security Act, 50 U.S.C. § 436, for financial, consumer, and travel records for certain government employees who have access to classified information.
How valuable are NSLs?
In the post 9/11 world, the National Security Letter is an indispensable tool and building block of an investigation that contributes significantly to the FBI’s ability to carry out its national security responsibilities by directly supporting the furtherance of the counterterrorism, counterintelligence and intelligence missions.
How are NSLs different from subpoenas? Are NSLs subject to limitations?
- NSLs are similar to federal executive branch administrative subpoenas in that a government agency issues the request for information without prior judicial approval.
- Like grand jury subpoenas and administrative subpoenas, NSLs can be used to acquire information relevant to an authorized preliminary or full FBI national security investigation.
- NSLs, however, are subject to two significant limitations. First, they are only available for authorized national security investigations (international terrorism or foreign intelligence/counterintelligence investigations), not general criminal investigations or domestic terrorism investigations. Second, unlike administrative subpoenas and grand jury subpoenas, NSLs can only be used to seek certain transactional information permitted under the five NSL provisions, and NSLs cannot be used to acquire the content of any communications.
Why not just use subpoenas?
There are multiple benefits of NSLS over grand jury subpoenas:
- NSLs are less intrusive in contrast to other tools such as FISAs, and provide a means to obtain third-party information relevant to a national security investigation.
- NSLs can also be issued before an investigation is opened in a grand jury by a U.S. Attorney’s Office but must be relevant to an authorized FBI national security investigation.
- Although the non-disclosure provisions in NSLs no longer automatically attach, NSLs are a better investigative tool should the government decide that non-disclosure of the request is necessary on a long-term basis due to the sensitivity of the investigation and the potential harm from an NSL’s disclosure.
What types of transactional information may be obtained by an NSL?
The FBI may obtain the following transactional records:
- subscriber information;
- toll billing records;
- Internet service provider (ISP) login records;
- electronic communication transaction records;
- financial records;
- money transfers;
- credit records; and
- other consumer identifying information.
How are NSLs certified?
All NSLs require a certification that the records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities and that an investigation of a US person is not conducted solely on the basis of First Amendment activities.
Can a provider challenge an NSL?
Yes. All recipients have the right to challenge, in U.S. District Court, a NSL for which the recipient believes compliance would be either “unreasonable, oppressive, or otherwise.” The recipient may also challenge, in U.S. District Court, any applicable nondisclosure provisions. In other words, unless the Court finds certification in bad faith, the law leaves these determinations regarding U.S. national security and diplomatic relations to the Executive Branch.
Who is authorized to approve NSLs?
- Only the most senior FBI officials have this authority.
- As of March 9, 2006, the authority to sign NSLs has been delegated to:
- Deputy Director;
- EAD and Assistant EAD for the National Security Branch;
- Assistant Directors and all DADs for CI/CT/Cyber;
- General Counsel;
- Deputy General Counsel for National Security Law Branch;
- Assistant Director in Charge, and all SACs in NY, D.C., and LA; and
- All SACs in other field divisions.
- Personnel in “acting” positions cannot sign NSLs.
Are NSLs classified?
The NSLs themselves are not classified, nor is the material received in return from NSLs classified. That information may be used in criminal proceedings without any declassification issue.