DOJ Report: FBI Needs Supervision in Use of Security Letters

The Center for Democracy and Technology has issued a scathing report on the FBI's attempts to self police with regard to compliance with regulations associated with the issuance of National Security Letters (NSLs). This comes as a result of two successive DOJ-IG reports showing systematic failures and abuses by the FBI in the management of these disclosure devices.

In October 2001, the PATRIOT Act dramatically weakened the standard for issuing NSLs by removing the requirement that the records sought with the NSL pertain to an "agent of a foreign power" such as a terrorist or a spy. The PATRIOT Act also eliminated the requirement that the government be able to articulate the factual basis for its suspicion.

Current law merely requires an FBI official to state "purely for internal purposes -- that the records are "relevant to" or "sought for" foreign counter-intelligence or terrorism purposes. Furthermore, an amendment adopted in 2003 dramatically expanded the institutions subject to NSLs to include travel agencies, real estate agents, jewelers, the Postal Service, insurance companies, casinos, car dealers and others.

Among other things, the IG found that the FBI issued NSLs when it had not even opened the investigation that is the only predicate for issuing an NSL. It found that the FBI retains almost indefinitely the information it obtains with an NSL, even if the record subject turns out to be innocent of any crime and of no intelligence interest.

It also found that the Attorney General had refused to adopt adequate "minimization" procedures designed to protect the privacy of information about innocent Americans obtained with an NSL, even though an interagency working group had recommended such procedures.

So, the CDT is calling for an overhaul of the legislation related to NSLs. After the 2007 IG report, CDT reports that the FBI did institute internal rules and training which improved things somewhat with regard to agents actually opening a case before issuing an NSL, or returning or destroying information received but not relevant to the investigation. However, the 2008 IG report still found that the internal review process prior to issuing an NSL was stil insufficient.