Process without procedure: national security letters and First Amendment rights.

• Author: Bloch-Wehba, Hannah

1. INTRODUCTION

   When does the Constitution require procedural safeguards for infringements on First Amendment rights? Surprisingly, this general question has never been answered. (1) The absence of procedural protections for First Amendment rights can yield enormous and substantive implications. (2) One particular investigative tool, the National Security Letter (NSL), is illustrative. (3) Each year, the FBI uses tens of thousands of NSLs to obtain customer "toll billing" information, or transactional records--such as records related to telephone calls, emails, text messages, online forums, tweets, or Facebook messages--from service providers. (4) FBI nondisclosure orders, which usually accompany NSLs, prevent the recipient from speaking about the requests. (5) Since 2001, there have been only a handful of known challenges to NSLs. (6)

   Although, as a matter of principle, First Amendment jurisprudence accepts that adequate procedures are essential to protecting civil liberties, those procedures nevertheless vary greatly depending on context. The Supreme Court recognizes the essential nature of certain procedures in contexts such as licensing schemes, prior restraints, and speech regulations, which each apply different First Amendment analyses and implicate different procedural outcomes. (7)

   While the importance of adequate procedures to protect First Amendment rights is keenly felt in the criminal trial context, First Amendment doctrine plays a relatively minor role in prescribing procedural safeguards for investigative activity. (8) The Supreme Court has repeatedly recognized the "danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application." (9) Courts look askance at criminal sanctions for First Amendment activity. (10) Yet "[t]he rules that regulate government investigations have typically emerged from the Fourth and Fifth Amendments, not the First. Lawyers and judges generally do not think of the First Amendment as having much relevance to criminal procedure, let alone as providing its own criminal procedure rules." (11)

   This Article argues that the near total absence of procedural safeguards for NSL issuance violates the First Amendment rights of subscribers whose records the FBI obtains. In Part II, this Article describes the statutory framework authorizing NSL issuance for communication records. (12) Several examples illustrate that the NSL process has created a de facto regime in which recipients automatically comply with requests in the absence of any judicial review. (13) While litigation remains the only avenue for securing judicial review of either an NSL or an accompanying nondisclosure order, a number of factors make challenges to NSLs exceedingly rare. The result is that the FBI commonly obtains communication metadata entirely in secret and without judicial review. (14) As a threshold matter, judicial review is a prerequisite to actualizing meaningful and robust First Amendment safeguards. Whether the First Amendment protects an NSL target's communications is a constitutional question for the judicial branch to resolve. In Part III, this Article describes how NSLs are explicitly directed at uncovering specific subscribers' networks and associations, even though such subscribers are frequently not the target of the investigation. (15) This type of inquiry also detrimentally impacts the First Amendment rights of journalists and the press. (16)

   Finally, this Article situates the NSL compelled disclosure regime within the broader scope of national security law. (17) Although nondisclosure orders and communications surveillance are commonplace within the national security framework, NSLs present distinctive constitutional problems because of the conjunction between secrecy, absence of judicial review, and compelled disclosure of information about communication. While, practically speaking, secrecy is endemic to other similar surveillance practices, NSLs lack many of the procedural safeguards used in other national security information-gathering tools. Additionally, although secrecy undoubtedly is an important feature of the state's national security surveillance tools, traditional safeguards in other constitutional contexts--including notice, the opportunity for a hearing, ex ante judicial oversight, and the exclusionary rule--foster transparency by facilitating scrutiny of the investigative process. As a result, NSLs are a unique case study for assessing the adequacy of procedural safeguards for First Amendment rights in the national security framework.

2. NSLS: THE STATUS QUO

   Four statutes authorize NSL use to obtain subscriber information from third parties such as telephone companies, Internet service providers, financial service providers, and credit institutions. (18) This Article is primarily concerned with one of those four statutes: the Electronic Communications Privacy Act (ECPA). (19) A primary purpose of ECPA NSLs, like other forms of metadata surveillance, is to connect subjects of investigations with their networks in order to gather information justifying a warrant and court order under the Foreign Intelligence Surveillance Act (FISA). (20) The information gleaned through NSLs can "connect terrorism subjects and terrorism groups with each other," and "can assist in the identification of the investigative subject's family members, associates, living arrangements, and contacts." (21)

   ECPA NSLs are issued to communications providers in order to obtain data related to communications. (22) Investigative activity that targets communication presents special First Amendment problems. Like other statutory authorities regulating surveillance, the ECPA provides that an investigation of a United States citizen may not be based solely on activity protected by the First Amendment, such as religious or political activity. (23)

   1. Statutory Background

   As the Office of Legal Counsel recognized, an NSL is essentially an administrative subpoena requiring production of specified information in connection with an investigation. (24) Administrative subpoenas generally allow an administrative agency to compel a party to produce documents or testimony without judicial approval. (25) As an example, the Internal Revenue Service (IRS) commonly issues subpoenas, also referred to as summonses, in civil tax proceedings. (26) Additionally, the government frequently uses administrative subpoenas in criminal prosecutions. (27) ECPA NSLs permit the FBI to request the "local and long distance toll billing records" of any person from a "wire or electronic communication service provider." (28) "Toll billing records" are metadata, not communications content; using NSLs, the FBI may only request "the name, address, length of service, and local and long distance toll billing records of a person or entity." (29)

   In many ways, NSLs are akin to other forms of administrative subpoenas. First, NSLs are issued by a member of the Executive branch, such as the Director of the FBI, Deputy Assistant Director, or Special Agents in Charge at certain field offices, and are not issued by prosecutors or grand juries. (30) Like other administrative subpoenas, a NSL permits the issuing agency to obtain records on a showing of relevance to an investigation, which has been described as a lax standard. (31) The core requirement of the NSL statute is that the FBI must certify in writing that the information sought is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States." (32) As the Supreme Court held in analyzing an administrative subpoena issued to a newspaper company in 1946, an administrative subpoena need not be issued in connection with a "specific charge or complaint;" rather, "[i]t is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command." (33)

   As a corollary, when an agency issues an investigative subpoena, the agency itself determines whether the investigation is authorized. Courts are fairly deferential to this determination, finding a subpoena "sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant." (34) Likewise, an NSL may only be used in limited circumstances, but as with other forms of administrative subpoenas, the FBI itself decides whether those circumstances have been met. (35)

   Yet NSLs are unique. First, NSLs emerge from an unusual statutory context. Four out of the five statutes that include NSL provisions are designed to protect individual privacy and balance privacy interests against the needs of law enforcement; in these contexts, NSLs are national security exceptions to carefully drawn rules. (36) In contrast, many of the federal statutes authorizing administrative subpoenas are closely tied to the conferral of specific investigative authority within the same statute. For example, the Clean Air Act contains subpoena authority related to determinations and investigations of the various requirements and prohibitions contained in the Act. (37) The Inspector General Act of 1978 is the "single most significant source of administrative subpoena power," but the authority contained therein is limited to the functions of the Inspector General. (38) The Internal Revenue Service is authorized to "examine any books, papers, records, or other data which may be relevant or material" to "the purpose of inquiring into any offense connected with the administration or enforcement of the internal revenue laws." (39) The Treasury Department's broad subpoena authority is located in the Internal Revenue Code and clearly tied to violations of...