ALA is currently supporting two legislative efforts to reform National Security Letters (NSLs). Both are House bills, and we are working for introduction in the Senate of similar legislation.
National Security Letter Judicial and Congressional Oversight Act (H.R. 1739), introduced by Rep. Harman (D-CA) in March with no co-sponsors.
National Security Letters Reform Act of 2007 (H.R. 3189), introduced by Rep. Nadler (NJ-D) in July with 20 co-sponsors. ALA participated in the press conference introducing this bill.
The bills have different strengths and weaknesses and some overlap. Overall, both have some important elements that should be enacted, and perhaps the best of both bills might be married during the process. Enactment of either would probably improve things over present law.
Here are a few points that our counsel provided:
- H.R. 1739 requires approval by a judge or special magistrate for issuance of an NSL; specifies that a certification of the need for nondisclosure, if challenged, is rebuttable and not conclusive; and has very strong reporting language.
H.R. 3189 omits certain NSLs issued under the National Security Act of 1947 from the definition; doesn’t include a requirement that the NSL be relevant to international terrorism or clandestine intelligence (as does 1739); requires notice to the recipient of a right to challenge disclosure (not in 1739); and imposes a gag for only 30 days order unless the FBI obtains a court order prohibiting disclosure (for not more than an additional 180 days).
Standards are set out for obtaining such an extension, and standards and requirements are also set out for using information obtained through an NSL in a criminal enforcement proceeding. There’s also a $50,000 potential damage liability for a person issuing or obtaining the NSL if it’s issued “contrary to law” or if the FBI agent’s certification is “without factual foundation.” Finally, every addition to the NSL authority after October 1, 2001, sunsets in 5 years, and various detailed reports are required.