"Special" delivery: where do national security letters fit into the Fourth Amendment?

• Author: Weiner, Lauren M.

INTRODUCTION

In the summer of 2005, agents from the Federal Bureau of Investigation ("FBI") visited George Christian, a digital services manager for over three-dozen Connecticut libraries (1) and presented him with a "National Security Letter." (2) The letter directed Mr. Christian to turn over subscriber information and access logs of Internet users at a certain library. (3) Over 30,000 National Security Letters, or "NSLs," are issued each year, presumably to investigate terrorists. (4) But because NSLs require the recipient to keep the letter secret, (5) what do we really know about NSLs?

Historically, if an investigation concerned "international terrorist activities" it was subject to little oversight. (6) Serious abuses of investigative power, however, led Congress to enact legislation designed to protect civil liberties, even for "foreign intelligence investigations." (7) After the terrorist attacks of September 11, 2001 ("9/11"), Congress passed the USA PATRIOT Act ("PATRIOT Act") (8) to aid law enforcement efforts to fight terrorism. (9) The PATRIOT Act broadened the scope of certain investigatory tools, making the job of law enforcement easier and subjecting law enforcement agencies to fewer limitations. One such tool, National Security Letters, gives the government the authority to request certain types of transactional records without requiring judicial pre-approval and without giving the recipient a meaningful method to challenge it. (10) This begs the question: what does it mean to "fight terrorism?" Is the goal to prevent further terrorist attacks or to prosecute the perpetrators? That question has some important implications as the government struggles to sculpt a regulatory regime for terrorism cases that will be both effective and constitutional. There are different rules and procedures for domestic criminal investigations than for investigations that focus on foreign intelligence gathering. It is clear that a murder investigation is intended to gather evidence that will lead to the prosecution of the killer. When it comes to counter-terrorism, however, it is not as easy to determine whether the investigation is for the purpose of deterrence or prosecution. Furthermore, what safeguard is there to prevent a law enforcement officer, even one with good intentions, from using the less stringent standards for foreign intelligence operations to gather evidence that wouldn't otherwise be accessible if he had to follow the stricter procedures for a domestic criminal investigation?

In several of its sections, the PATRIOT Act combines the procedures for traditional criminal law enforcement with the looser procedural standards that are in place for foreign counterintelligence investigations. (11) In some respects, NSLs are similar to administrative subpoenas--an information-gathering tool for domestic criminal investigations. In fact, the Bush Administration has suggested granting the FBI administrative subpoena power for counter-terrorism investigations so they would have the same tools available to catch terrorists as are already available to catch doctors engaged in insurance fraud. (12) This suggestion, however, over-simplifies the issue and disregards the fundamental differences between foreign intelligence investigations and criminal investigations--especially as related to the constitutionality of warrantless searches.

So what are NSLs? Are they ordinary domestic law enforcement tools that have the looser standards of foreign intelligence-gathering tools? Or are they tools for foreign intelligence that may be used for ordinary domestic criminal investigations? Are they constitutional? And even if constitutional, are they still problematic?

This Comment will examine NSLs both in the context of foreign intelligence and domestic criminal investigations. There are substantial arguments on both sides of the debate over the constitutionality of NSLs; this Comment will primarily be focused on how to classify NSLs and how to use them in a manner that reduces the potential for abuse or over-reaching. This Comment will argue that NSLs are not foreign intelligence tools, but are merely foreign intelligence exceptions to domestic laws that allow law enforcement access to records that would otherwise be protected by privacy laws. Accordingly, NSLs must be able to satisfy the constitutional requirements for domestic searches. First, this Comment will provide background on NSLs, the Fourth Amendment, and the Foreign Intelligence Surveillance Act. Then, this Comment will examine NSLs in the context of the permissible exceptions to the warrant requirement for searches--specifically the "special needs" exception. Finally, this Comment will argue that even if NSLs are constitutional despite their issuance without a warrant, they still have great potential for abuse and additional safeguards beyond the recent revisions are necessary.

PART I: BACKGROUND

In evaluating laws pertaining to criminal procedure, one must make a distinction between investigations focused on "foreign agents," or general foreign intelligence, and ordinary domestic criminal investigations. (13) Law enforcement officials are authorized to use a more expansive set of tools to obtain records and information when the investigation pertains to foreign persons or intelligence activities. This section will first examine the statutes authorizing NSLs, and will outline their powers and their limitations. This section will also discuss the Fourth Amendment and its relationship to domestic and foreign investigations because, in some respects, NSLs are a hybrid of foreign and domestic investigatory standards.

1. National Security Letters

   Law enforcement officials are authorized to issue NSLs under three statutes: the Electronic Communications Privacy Act of 1986 ("ECPA"), (14) the Right to Financial Privacy Act, (15) and the Fair Credit Reporting Act. (16) These statutes were enacted to offer protection to individuals for records in the possession of third parties, an area not covered by the Fourth Amendment. (17) NSLs were included as an exception to this protection by allowing access to these records for government agencies "authorized to conduct foreign counter- or foreign positive-intelligence activities." (18)

   This Comment will primarily focus on the ECPA--the statute that has most frequently been evaluated in the context of national security. (19) The ECPA was designed to give statutory protection to stored electronic information held by a "wire or electronic communications service provider." (20)

   Section 2709, the national security provision of Title II of the ECPA, was designed to enable law enforcement to investigate suspected terrorists or foreign agents. (21) The original version of the ECPA section 2709 allowed the FBI to compel production of (1) subscriber information (limited to name, address, and length of service); (2) local and long distance toll billing records; and (3) electronic communication transactional records. (22)

   The standard for obtaining this information under the original version of the ECPA was that the information sought had to be "relevant to an authorized foreign counterintelligence investigation," and there had to be "specific and articulable facts giving reason to believe that the person or entity to whom the information sought pertain[ed] [was] a foreign power or agent of a foreign power." (23) There are other provisions of Title II of the ECPA that allow law enforcement to obtain similar types of information in the context of a "criminal investigation," but, unlike NSLs, those provisions require judicial pre-approval. (24) The fact that the ECPA provides access to records in domestic criminal investigations may be a significant factor in evaluating whether NSLs under section 2709 serve a purpose beyond the need for ordinary law enforcement. (25)

   Further, while domestic criminal investigations require the approval of a judge, NSLs for national security investigations are authorized by the agency that issues them. (26) Before passage of the PATRIOT Act, an NSL required only the approval of an FBI official with a rank "not lower than Deputy Assistant Director." (27) The issues of self-authorization and rank of law enforcement officials authorized to approve NSLs will be revisited in later sections of this Comment, as part of a discussion of the potential for overreaching on the part of the law enforcement agencies. (28)

   Section 2709 remained relatively unchanged (29) until the PATRIOT Act enlarged NSL power specifically, and foreign intelligence-gathering power more generally. Passed seven weeks after 9/11, the draft bill of the PATRIOT Act (30) called for, in pertinent part, expansion of the government's information-gathering powers by eliminating or reducing judicial oversight. (31) A period of intense negotiations between the legislative and executive branches followed. (32) The proposal by Senator Patrick Leahy would have allowed increased intelligence powers, but would have included significantly more judicial supervision than the administration's plan. (33) The Bush administration made it clear that its priority was to get new anti-terrorism legislation through Congress as quickly as possible. (34) While congressional democrats, like Senator Leahy, indicated that Congress would not be pushed to act in haste and that they would continue to work to balance law enforcement needs with constitutional rights, (35) many of the negotiations were done behind closed doors in private meetings. Senator Russ Feingold stated "there has not been an open process in the Judiciary Committee, much less the full Senate, for Senators to have an opportunity to raise concerns about how far this bill goes in giving power to law enforcement to ... investigate law-abiding U.S. citizens." (36) Regardless of such concerns, the PATRIOT Act was passed and on October 26, 2001, it was signed into laws. (37)

   The PATRIOT Act changed...