Academic journal article Fordham Urban Law Journal

"Special" Delivery: Where Do National Security Letters Fit into the Fourth Amendment?

Academic journal article Fordham Urban Law Journal

"Special" Delivery: Where Do National Security Letters Fit into the Fourth Amendment?

Article excerpt


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. …

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