A National Security Letter is an administrative order that compels the recipients to provide information to federal investigators. The letter is issued by a federal agency, most frequently the FBI, to subpoena information related to national security matters. Usually, a national security letter is issued to a wire or electronic communications service provider asking for information on subscribers and communications records.
As authorized by the USA PATRIOT Act, the letters included a non-disclosure requirement that forbade recipients from discussing the letter's contents and instructions with anyone other than a lawyer, the letters did not require a judge's authorization, and were subject to only limited judicial review.
In Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), the Second Circuit held that the letters' non-disclosure requirements and lack of judicial review violated the First Amendment. As a result, the relevant statutes were amended to increase judicial review of the non-disclosure requirement.
Currently, the relevant legislation governing national security letters is found at 18 USC §2709 which includes:
- Duty to provide - A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
- Required certification - The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may, using a term that specifically identifies a person, entity, telephone number, or account as the basis for a request—
- Request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and
- Request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
See also: A Review of the FBI's Use of National Security Letters
[Last updated in July of 2023 by the Wex Definitions Team]