National Security letters: law Reform

National Security letters: Why Reform is Necessary

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National Security letters: Why Reform is Necessary
Desirae L. Wells

2012 Cardozo L. Rev. de novo 216
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INTRODUCTION

A National Security Letter (“NSL”) is a form letter signed by an FBI Agent, with no judicial approval, compelling disclosure of sensitive information held by banks, credit companies, telephone carriers and Internet Service Providers. NSLs provide the Government with an extraordinary power and are controversial because of this extraordinary power. This power has been expanded under the Patriot Act. There has been much opposition to NSLs. Some argue that NSLs are an "unreasonable" search and seizure of customer records and thus a violation of the Fourth Amendment; the scope of NSLs is overreaching and unwarranted; NSLs are coercive in nature and the requirement of secrecy is dangerous; and most importantly, the lack of judicial oversight is unconstitutional. Essentially, opponents argue that we must not impede on our constitutional rights in the name of “protecting the country from terrorists.”1
However, there is also much support for NSLs. Proponents argue that NSLs serve as a key tool in allowing the FBI to follow leads when the target of an NSL is not necessarily the target of the investigation. NSLs assist the FBI in collecting information sufficient to eliminate concerns about investigative subjects and close national security investigations with a greater degree of confidence. Thus, in this post 9/11 world, national security is so important that extraordinary measures must be taken to protect its citizens. But can there be a balance? Are NSLs illegal, unwarranted searches that violate the First and Fourth Amendments, or are NSLs a necessary and highly effective counter terrorism and counterintelligence tool needed in this Post 9/11 area? Is there a way to improve NSLs so that they function as a [Page 217] necessary tool for the government while protecting the rights of citizens at the same time?
The answer is two-fold. As written, NSLs arguably violate tenets of the Constitution. They are intrusive in scope and method, they are coercive in nature and the secrecy surrounding the scope of their use and their operation complicates any effort at reform. Can they be improved? Yes, with precision and depth. Some statutes must be repealed and others may be simply enhanced with explicit protections for individual liberties. Admittedly, we want a government that is focused on protecting its citizens against terrorism in this post 9/11 world. However, we as citizens should not have to sacrifice our individual rights and privacy afforded under the Constitution to meet these tasks.
In this paper, I will describe the NSL statutes, the arguments for and against NSLs, how NSLs were used both pre and post 9/11 and detail suggested recommendations as to how NSLs can be improved.