National security letters and the amended patriot act

Cornell Law Review

Volumn 92, Issue 6, 2007, Pages 1201-1237

  Nieland, Andrew E ^a  

^a MIT Sloan School of Management   (United States)

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EID: 35548987609     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (276)

1. See Doe v. Ashcroft, 334 F. Supp. 2d 471, 502 (S.D.N.Y. 2004), vacated and remanded sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006).
2. The Right to Financial Privacy Act (RFPA) authorized various agencies to request financial records under a form of NSL authority. See infra Part I. Although requests were not mandatory, RFPA forbade the recipient from disclosing that he had either received or complied with such a request. See id.
3. See, e.g., 18 U.S.C. § 2709(c) (2000).
4. See Ashcroft, 334 F. Supp. 2d at 475.
5. See infra Part I.
6. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered sections of the U.S.C.).
7. See Ashcroft, 334 F. Supp. 2d at 482-84 (noting that the drafters replaced the "nexus to a foreign power" requirement and replaced it with a "broad standard of relevance to investigations of terrorism or clandestine intelligence activities," in an attempt to "harmonize [ ]" section 2709 with a federal prosecutor's power to issue a grand jury subpoena (citation omitted)).
8. The Justice Department released a "partial" classified tally of NSL usage to Congress but made no public reporting of NSL statistics prior to 2006. See Barton Gellman, The FBI's Secret Scrutiny: In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans, WASH. POST, NOV. 6, 2005, at A1.
9. See Ashcroft, 334 F. Supp. 2d at 502 (basing this estimate on the "long time span" between the passage of the first NSL statute and the present day, and information obtained via the Freedom of Information Act showing that "hundreds" of NSLs had been requested between 2001 and 2003). The FBI's Inspector General has subsequently asserted a much higher yearly tally - 8500 requests in 2000, and 7800 in 1999. OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, A REVIEW OF THE FEDERAL BUREAU OF INVESTIGATION'S USE OF NATIONAL SECURITY LETTERS 44 n.84 (2007), http://www.usdoj.gov/oig/special/s0703b/final.pdf. [hereinafter NSL AUDIT] .
10. The oft-repeated 30,000-per-year figure was first reported in November 2005 by Washington Post reporter Barton Gellman. See Gellman, supra note 8. The day after Gellman's article ran, the New York Times reported that "F.B.I, officials declined . . . to say how many letters the bureau had issued but expressed some skepticism about the accuracy of the 30,000 figure." Eric Lichtblau, Lawmakers Call for Limits on F.B.I. Power to Demand Records in Terrorism Investigation, N.Y. TIMES, NOV. 7, 2005, at A20. Gellman insists that his figure is accurate and retorted that the "skeptical" lack of an express denial was a tactic used by unnamed sources to deal with "a fact they don't want to, or can't, deny."
11. Barton Gellman, Washingtonpost.com, The FBI's Secret Scrutiny (Nov. 7, 2005), http://www.washingtonpost.com/wp-dyn/content/discussion/2005/11/07/ DI2005110700495.html. The Inspector General has subsequently estimated that the FBI issued over 39,000 requests annually between 2003 and 2005. See NSL AUDIT, supra note 9, at 37 chart 4.1. But because each physical letter may request information on numerous phone numbers or individuals, the number of letters issued during this period is smaller. See id. at 4 & chart 1.1.
12. See Ashcroft, 334 F. Supp. 2d at 475.
13. See id.
14. See Doe v. Gonzales, 386 F. Supp. 2d 66, 69 (D. Conn. 2005), dismissed as moot, 449 F.3d 415, 420 (2d Cir. 2006).
15. See id. at 70. Elsewhere, the judge notes that the Government "agreed to the docketing of the Redacted Complaint, which reveals that an investigation (of unknown topic) exists and that a[n] NSL was issued in Connecticut to an organization with library records." Id. at 81.
16. Id. at 70.
17. See id.
18. Id.
19. The challenged statute applies to any "wire or electronic communication service provider," but limits the information obtainable via NSL to "subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession." 18 U.S.C. § 2709(a) (2000). This section of the Patriot Act did not initially receive much scrutiny from either civil rights groups or library organizations - for example, a report on the important changes made by the Patriot Act, prepared for the American Association of Law Libraries by the Washington, D.C., firm of Wiley Rein & Fielding, did not even mention section 505. See WILEY REIN & FIELDING LLP, THE SEARCH & SEIZURE OF ELECTRONIC INFORMATION: THE LAW BEFORE AND AFTER THE USA PATRIOT ACT (2001), http://www.aallnet.org/ aallwash/uspatriotbefaft.pdf (the document is dated January 18, 2001, which must be incorrect because Congress had not yet drafted the Patriot Act, and was presumably issued in January of 2002).
20. Cf. John Ashcroft, Attorney Gen. of the U.S., Protecting Life and Liberty (Sept. 18, 2003), available at http://www.usdoj.gov/archive/ag/ speeches/2003/091803memphisremarks.htm.
21. See id. ("The fact is, with just 11,000 FBI agents and over a billion visitors to America's libraries each year, the Department of Justice has neither the staffing, the time nor the inclination to monitor the reading habits of Americans. No offense to the American Library Association, but we just don't care.").
22. a[C]ivil libertarians opposed the provision not because they knew it had been used . . . but because they expected it would be. It turns out that they were right to be concerned.").
23. See Gonzales, 386 F. Supp. 2d at 82-83 (ordering an eleven-day stay of judgment).
24. See Alison Leigh Cowan, Librarians Must Stay Silent in Patriot Act Suit, Court Says, N.Y. TIMES, Sept. 21, 2005, at B2.
25. See Doe v. Gonzales, 126 S. Ct. 1, 5 (2005), ordered unsealed by and superseded fry 127 S. Ct. 1 (2005).
26. See Cowan, supra note 23 ("Though the plaintiffs' organization has not been named in the various proceedings, a close reading of the court record suggests that it is Library Connection in Windsor, Conn. A search of a court-operated Web site offered a pointer to the plaintiffs' identity. There, a case numbered 3:2005cv01256 is listed under the caption, 'Library Connection Inc. v. Attorney General.'").
27. See Gellman, supra note 8.
28. See Elisabeth Bumiller, Bush Renews Patriot Act Campaign, N.Y. TIMES, Jan. 4, 2006, at A10. Lawmakers did agree to extend the provisions of the Act scheduled to expire at year's end until February 3, 2006. See id.
29. USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. 109-177, 120 Stat. 192 (codified as amended in scattered sections of the U.S.C).
30. See 18 U.S.C.A § 3511 (Supp. 2006).
31. See id. § 2709(c).
32. See id. § 3511.
33. See infra Part II.
34. Critics of the Patriot Act were particularly pleased by the FBI's decision to drop the Gonzales appeal. See Anahad O'Connor, Librarians Win as U.S. Relents on Secrecy Law, N.Y. TIMES, Apr. 13, 2006, at B1;
35. see also Editorial, Civil Liberties Score Win vs. Patriot Act, POST-STANDARD (Syracuse, N.Y.), Apr. 20, 2006, at A-10.
36. See Editorial, Renewing the Patriot Act, CHI. TRIB., Mar. 13, 2006, at 20.
37. See Editorial, The Rush to Renew the Patriot Act, N.Y. TIMES, Dec. 16, 2005, at A40 ("For example, the bill gives the government far too much power to issue 'national security letters,' demanding private financial, medical and library records, without the permission or oversight of a judge."). This is incorrect. See infra note 38.
38. See, e.g., Oversight of the USA PATRIOT Act: Hearings Before the S. Comm. on the Judiciary, 109th Cong. 385-86 (2005) (testimony of Bob Barr) ("A number of interested parties continue to claim, however, that Doe v. Ashcroft did not strike down a provision of the USA PATRIOT Act because section 2709, prior to the Act, did not contain a right to challenge and contained a gag order. This is inaccurate. First, whenever a statute is struck down in its entirety any then-operative amendments are also rendered unconstitutional. It is hard to see how a decision that strikes down every word of one section of a law can be said not to 'involve' that law. Second, analytically speaking, the USA PATRIOT Act is the 800-pound gorilla in the Marrero opinion, and clearly factored into his reasoning.").
39. In Doe v. Gonzales, 386 F. Supp. 2d 66, 74 n.6 (D. Conn. 2005), dismissed as moot, 449 F.3d 415 (2d Cir. 2006), the court asserts that the instant case, Doe v. Ashcroft, and a case in Detroit constitute the only challenges to national security letters. That statement appears to be inaccurate - the case in Detroit almost certainly refers to Muslim Community Ass'n of Ann Arbor v. Ashcroft, 459 F. Supp. 2d 592 (E.D. Mich. 2003), a 2003 challenge to section 215 of the Patriot Act, filed in the Eastern District Court of Michigan, which sits in Detroit. See, e.g., Fernando A. Bohorquez, Jr., Challenges to Challenging the Patriot Act: Limits on Judicial Review and a Proposal for Reform, N.Y. ST. B.J., Feb. 2005, at 24, 27-28. Section 215 amended the Foreign Intelligence Surveillance Act of 1978 (FISA), which deals with subpoenas issued by the Foreign Intelligence Surveillance Court (FISC). See id. at 25. NSLs, on the other hand, are authorized by, inter alia, the Electronic Communications Privacy Act (ECPA) and merely require internal FBI certification rather than FISC approval. See infra Part I.A. Ashcroft and Gonzales challenge the ECPA amendments contained in section 505 of the Patriot Act, which relax the standards for issuing NSLs. See infra Parts II.A & II.B. Thus, these cases appear to be the only legal challenges to NSL authority ever raised.
40. For example, the New York Times's confusion about medical records, supra note 35, likely stems from an incident during the summer of 2005, when FBI agents attempted to use an NSL to obtain the medical records of a North Carolina State University student suspected in the London Underground bombings. See Gellman, supra note 8. A high-ranking FBI official described such usage as erroneous. See id.
41. RFPA was, in turn, only Title XI of a massive banking regulation bill, the Financial Institutions Regulatory and Interest Rate Control Act of 1978, Pub. L. No. 95-630, 92 Stat. 3641 (codified as amended throughout 12 U.S.C.).
42. 425 U.S. 435 (1976).
43. H.R. REP. NO. 95-1383, at 34 (1978), as reprinted in 1978 U.S.C.C.A.N. 9273, 9306.
44. S. REP. NO. 99-307, at 15 (1986) (discussing the 1978 Act and the 1986 amendments to its NSL authority provisions); see also 12 U.S.C. §§ 3401-3413 (2000).
45. H.R. REP. NO. 95-1383, at 55.
46. See 12 U.S.C. § 3414(a) (2).
47. See id. § 3414(a) (1) ("Nothing in this chapter . . . shall apply to the production and disclosure of financial records pursuant to requests from [certain government authorities]."). Note that § 3414(a) (5), requiring financial institutions to comply, was not added until 1986. See Intelligence Authorization Act for Fiscal Year 1987, Pub. L. No. 99-569, § 404, 100 Stat. 3190, 3197 (1986) (codified as amended at 12 U.S.C. § 3414(a) (5)).
48. See 12 U.S.C. § 3414(a) (3) ("No financial institution, or officer, employee, or agent of such institution shall disclose to any person that a Government authority described in paragraph (1) has sought or obtained access to a customer's financial records.").
49. H.R. REP. NO. 95-1383, at 55.
50. S. REP. NO. 99-307, at 15 (1986).
51. See id. at 18-19 (discussing FBI requests for "telephone subscriber information or toll billing record information").
52. See id. at 19.
53. See Wikipedia.org, American Telephone & Telegraph Company, http://en.wikipedia.org/wiki/AT%26T_%281885-2005%29 (last visited Aug. 12, 2007).
54. See id.
55. See S. REP. NO. 99-307, at 19.
56. See Doe v. Ashcroft, 334 F. Supp. 2d 471, 480-81 (S.D.N.Y. 2004), vacated and remanded sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006). In the same year, Congress also added language making the RFPA NSLs mandatory. See 12 U.S.C. § 3414(a) (5) (A) (2000) ("Financial institutions . . . shall comply with a request . . . made pursuant to this subsection by the Federal Bureau of Investigation . . . .").
57. See 15 U.S.C.A. §§ 1681u-1681v (1998 & Supp. 2006).
58. See 50 U.S.C. § 436 (2000).
59. See Doe v. Gonzales, 386 F. Supp. 2d 66, 69 (D. Conn. 2005), dismissed as moot, 449 F.3d 415 (2d Cir. 2006); Ashcroft, 334 F. Supp. 2d. at 475.
60. See Ashcroft, 334 F. Supp. 2d at 480.
61. Id. at 481 (citing 18 U.S.C. § 2703 (2000)).
62. See 18 U.S.C. § 2709(a).
63. Id.
64. Id.
65. S. REP. NO. 99-307, at 20 (1986) (citing Reporters Comm. for Freedom of the Press v. Am. Tel. & Tel. Co., 593 F.2d 1030 (D.C. Cir. 1978)).
66. See S. REP. NO. 99-541, at 43-44 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3598-99. Indeed, Judge Marrero describes the addition as "inscrutable." See Ashcroft, 334 F. Supp. 2d at 482 n.34.
67. Electronic Communication Privacy Act of 1986, Pub. L. No. 99-508 § 201, 100 Stat. 1848, 1867 (1986) (current version at 18 U.S.C. § 2709(b) (Supp. IV 2004)).
68. id.
69. S. REP. NO. 99-541, at 44.
70. S. REP. NO. 99-307, at 15.
71. See id.
72. See id.
73. See id. at 19.
74. Doe v. Ashcroft, 334 F. Supp. 2d 471, 482-83 (S.D.N.Y. 2004), vacated and remanded sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006).
75. In the case mentioned, a caller, identifying himself only as an employee of the U.S. government, contacted a foreign embassy (whose phone lines were monitored), and offered to hand over "sensitive U.S. government information." H.R. REP. NO. 103-46 at 2 (1993), as reprinted in 1993 U.S.C.C.A.N. 1913, 1914. Since this call only gave the FBI reason to believe that the caller was volunteering to be a foreign agent and not that he was in fact a foreign agent they could not use an NSL to trace the call. Id. Subsequendy, the employee went on to surrender "highly sensitive information" to "representatives of the foreign nation." Id.
76. Id.
77. Act of Nov. 17, 1993, Pub. L. No. 103-142, 107 Stat. 1491 (codified as amended at 18 U.S.C. § 2709(b) (Supp. IV 2004)).
78. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as amended in scattered sections of the U.S.C.).
79. See 18 U.S.C. § 2709(b) (Supp. IV 2004).
80. See id.; supra note 65 and accompanying text.
81. 18 U.S.C. § 2709(b).
82. Id.
83. Administration's Draft Anti-Terrorism Act of 2001: Hearing Before the H. Comm. on the Judiciary, 107th Cong. 57 (2001) (consultation draft), available at http://commdocs.house.gov/committees/judiciary/hju75288.000/ hju75288_0f.htm.
84. See FBI Oversight: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 3 (2006) (statement of Sen. Edward M. Kennedy).
85. See, e.g., Paul Coggins, It Doesn't Stay in Vegas, RECORDER (San Francisco), Mar. 31, 2006, at 4 (discussing the abuses of NSL authority and the increased cost to businesses of complying with NSL requests).
86. See S. REP. NO. 99-307, at 19 (1986).
87. See id.
88. See 18 U.S.C. § 2709(a) (2000) ("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." (emphasis added)).
89. See id. § 2709(c) (current version at 18 U.S.C.A. § 2709(c) (Supp. 2006)) ("No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.").
90. See H.R. REP. NO. 103-46, at 3 (1993), as reprinted in 1993 U.S.C.C.A.N. 1913, 1914.
91. Congress and the agencies themselves regulate how the information obtained may be shared. They have done so in ways that are interesting and important, but beyond the scope of this Note.
92. See supra note 80 and accompanying text.
93. See supra note 7.
94. 18 U.S.C. § 2709(a). The statute defines "electronic communication service" quite broadly: "any service which provides to users thereof the ability to send or receive wire or electronic communications." Id. § 2510(15).
95. See S. REP. NO. 99-541 at 8-9 (1986), as reprinted in 1986 U.S.C.C.A.N. 3562-63.
96. See id.
97. Memorandum in Support of Plaintiffs' Motion for Summary Judgment, ACLU, Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004) (No. 04 Civ. 2614), 2004 WL 2402699 (citation omitted) [hereinafter ACLU Memorandum] ("Thus, the FBI could use an NSL to obtain information from an advocacy organization such as the National Rifle Association or Moveon.org.").
98. See 18 U.S.C. § 2709(a).
99. See ACLU Memorandum, supra note 95.
100. See id.
101. See supra text accompanying notes 6-10.
102. See supra Part LA.
103. See Gellman, supra note 8.
104. See Am. Civil Liberties Union, Challenge to the "National Security Letter" Authority (Sept. 29, 2004), http://www.aclu.org/safefree/ patriot/17458res20040929.html.
105. Congress codified the NSL provisions of the ECPA and the amendments making RFPA NSLs mandatory in 1986. See supra note 54 and accompanying text.
106. 334 F. Supp. 2d 471 (S.D.N.Y. 2004), vacated and remanded sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006).
107. Id. at 475.
108. id.
109. Id.
110. See id. at 480-91.
111. See id. at 494.
112. See id.
113. Id. at 495. However, Judge Marrero cited no cases supporting this assertion. See infra Part III.
114. See Ashcroft, 334 F. Supp. 2d at 498.
115. See id. (quoting INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) ("[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is fairly possible, [courts] are obligated to construe the statute to avoid such problems." (citation omitted)).
116. See id. at 499 (borrowing the phrase "sounds of silence" from SIMON & GARFUNKEL, SOUNDS OF SILENCE (Columbia Records 1966), to emphasize the importance of the law's silence to finding its meaning).
117. Id. at 500.
118. Id. at 501.
119. 372 U.S. 58 (1963).
120. See id. at 71-72.
121. Id. at 61-62.
122. Ashcroft, 334 F. Supp. 2d at 503.
123. Sullivan, 372 U.S. at 68.
124. See id. at 73-74 (Douglas, J., concurring); see also Ashcroft, 334 F. Supp. 2d at 505.
125. See Ashcroft, 334 F. Supp. 2d at 511.
126. Id. at 511-12.
127. See id. at 512-13.
128. See id. at 513.
129. Id. at 514.
130. 467 U.S. 20 (1984).
131. See Ashcroft, 334 F. Supp. 2d at 516.
132. Rhinehart, 467 U.S. at 22-23.
133. Id. at 25-26.
134. Id. at 36-37; see also Ashcroft, 334 F. Supp. 2d at 516.
135. 494 U.S. 624 (1990).
136. See Ashcroft, 334 F. Supp. 2d at 516-17.
137. Butterworth, 494 U.S. at 626-28.
138. Id. at 632-33 (holding that Florida could still enforce the part of the statute "which prohibits the witness from disclosing the testimony of another witness").
139. 44 F.3d 106 (2d Cir. 1994).
140. Ashcroft, 334 F. Supp. 2d at 512.
141. Kamasinski, 44 F.3d at 110.
142. Id. at 111.
143. Ashcroft, 334 F. Supp. 2d at 519.
144. Id.
145. See id. at 520 ("[A] case may arise in which the Government's investigation has long since been completed and information about it has become public through Government sources or otherwise, in which the material obtained through an NSL revealed that there was no basis whatsoever to pursue the subject or target of the Government's investigation, or in which the disclosure may have been made by a person in the chain of information, such as an employee or agent of the NSL recipient, who was not informed in any way of the secrecy requirement").
146. See id. at 521.
147. See id. at 522.
148. Id. at 522-23.
149. See, e.g., CIA v. Sims, 471 U.S. 159, 178 (1985).
150. See Ashcroft, 334 F. Supp. 2d at 524 n.256 (quoting Detroit Free Press v. Ashcroft, 303 F.3d 681, 709 (6th Cir. 2002)); see also Doe v. Gonzales, 386 F. Supp. 2d 66, 77 n.9 (D. Conn. 2005), dismissed as moot, 449 F.3d 415 (2d Cir. 2006).
151. Ashcroft, 334 F. Supp. 2d at 523 (quoting Sims, 471 U.S. at 178).
152. See id.
153. See id.
154. Id. (citing N. Jersey Media Group v. Ashcroft, 308 F.3d 198, 219 (3d Cir. 2002)).
155. Id. at 523-24 (quoting Zadvydas v. Davis, 533 U.S. 678, 696 (2001)).
156. Id. at 524.
157. See id.
158. id. at 522. "Because the Court . . . granted Plaintiffs' motion . . . on other grounds, [it] decline [d] to address Plaintiffs' alternative argument that the statute violates the Fifth Amendment by failing to provide notice to persons to whom the records pertain." Id. at 527 n.268.
159. 386 F. Supp. 2d 66 (D. Conn. 2005), dismissed as moot, 449 F.3d 415 (2d Cir. 2006).
160. Id. at 68-69 (quoting 18 U.S.C. § 2709(a) (2000)).
161. See id. at 70.
162. See id. at 82-83.
163. See id. at 71-72 (noting the need for showing irreparable injury and a clear or substantial likelihood of success on the merits).
164. Id. at 72.
165. Id. at 73.
166. 372 U.S. 58 (1963).
167. Gonzales, 386 F. Supp. 2d at 74 (quoting Sullivan, 372 U.S. at 67).
168. id. at 74 n.5.
169. Id. Judge Hall otherwise does not mention the lack of any enforcement mechanism for compliance with § 2709 NSLs.
170. Id. at 75 (quoting Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 130-31 (1992)).
171. Id.
172. See id. at 76 (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) ("[T]he United States Constitution . . . most assuredly envisions a role for all three branches when individual liberties are at stake.")).
173. Id. at 76.
174. Id. at 77.
175. Id. at 78.
176. Id. at 79-80 (citing Doe v. Ashcroft, 334 F. Supp. 2d 471, 501-03 (S.D.N.Y. 2004), vacated and remanded sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006)).
177. Id. at 80.
178. Id.
179. Id.
180. Id. at 81-82.
181. Id.
182. Id. at 81.
183. See supra note 20 and accompanying text.
184. Gonzales, 386 F. Supp. 2d at 81.
185. Id. at 82-83.
186. Id. (citing Rodriguez v. DeBuono, 175 F.3d 227, 235 (2d Cir. 1999)).
187. Alison Leigh Cowan, Hartford Libraries Watch as U.S. Makes Demands, N.Y. TIMES, Sept. 2, 2005, at B5.
188. Doe v. Gonzales, 126 S. Ct. 1, 3 (2005), ordered unsealed by and superseded by 127 S. Ct. 1 (2005).
189. Id. at 5.
190. Id. at 4. The italicized text, redacted in the original opinion, became public in August 2006. See Press Release, Am. Civil Liberties Union, Supreme Court Unseals Documents in Patriot Act Case (Aug. 3, 2006), http://www.aclu.org/safefree/nationalsecurityletters/26379prs20060803.html.
191. Gonzales, 126 S. Ct. at 4.
192. Id. (citation omitted).
193. Id.; see supra note 188.
194. USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (codified as amended in scattered sections of the U.S.C).
195. See supra notes 28-34 and accompanying text.
196. 18 U.S.C.A. § 3511(a) (Supp. 2006).
197. Id. § 3511(c).
198. Id. § 2709(c).
199. Id. Congress added this mandatory identification requirement at the request of the Director of National Intelligence. See H.R. REP. NO. 109-333, at 95-96 (2005), as reprinted in 2006 U.S.C.C.A.N. 184, 190, available at http://frwebgate.access.gpo.gov/cgi- bin/getdoc.cgi?dbname=109_cong_reports&docid=f:hr333.109.pdf.
200. See 18 U.S.C.A. § 3511(b).
201. H.R. REP. NO. 109-333, at 96.
202. 18 U.S.C.A. § 3511(b)(2). The "Attorney General, Deputy Attorney General, an Assistant Attorney General, or the Director of the Federal Bureau of Investigation" may make this certification. Id.
203. Id. § 3511 (b) (3). At this point, the designee of the FBI Director "in a position not lower than Deputy Assistant Director at Bureau Headquarters or a Special Agent in Charge in a Bureau field office" may make the recertification. Id.
204. H.R. REP. NO. 109-333, at 96.
205. USA PATRIOT Improvement and Reauthorization Act of 2005 § 118(c) (1), Pub. L. 109-177, 120 Stat. 192, 218 (codified as amended in scattered sections of the U.S.C.).
206. See H.R. REP. NO. 109-333, at 97 ("Congress understands that current reporting may somewhat overstate the number of different U.S. persons about whom requests for infor-mation are made, because NSLs seeking information on a particular person may be served at different times and from different FBI field offices.").
207. As any good reporter knows, Friday is the day when you release information you would prefer the public overlook.
208. Dan Eggen, FBI Sought Data on Thousands in '05, WASH. POST, May 2, 2006, at A4.
209. H.R. REP. NO. 109-333, at 97.
210. NSL AUDIT, supra note 9, at xvi.
211. See, e.g., 425 U.S. 435 (1976).
212. See, e.g., Press Release, Bernard Sanders, ACLU, American Library Association, Patriot Act Gag Order Press Conference (Sept. 28, 2005), http://action.aclu.org/reformthepatriotact/legal/sanders.pdf.
213. 386 F. Supp. 2d 66 (D. Conn. 2005).
214. See id. at 78 n.11.
215. See, e.g., Mike Allen, House Votes to Curb Patriot Act, WASH. POST, June 16, 2005, at A1.
216. For example, take the 1995 movie Se7en (a.k.a. Seven): DETECTIVE SOMERSET (Morgan Freeman): "For years, the FBI's been hooked into the library system . . . monitoring reading habits . . . . Books about on say, nuclear weapons, or Mein Kampf. Anyone who checks out a flagged book has his library records fed to the FBI's computers from then on . . . ." DETECTIVE MILLS (Brad Pitt): "Wait, wait, wait . . . how is this legal?" DETECTIVE SOMERSET: "Legal, illegal . . . these terms don't apply. You can't use the information direcdy, it's just a useful guide. See it might sound silly, but you can't get a library card without an ID and a current phone bill." SE7EN (New Line Cinema 1995). Interestingly, Somerset and Mills use the FBI list to track a villain named "John Doe." Id. For another Hollywood conception of the FBI's interest in popular reading habits, see CONSPIRACY THEORY (Warner Bros. 1997) (depicting a federal government that keeps tabs on a secret team of brainwashed assassins by monitoring purchases of The Catcher in the Rye, a book the assassins are programmed to buy compulsively).
217. Of course, assuming satisfaction of the relevance requirement, a grand jury subpoena or, after the Patriot Act, a FISA subpoena, could compel disclosure of such records. See supra note 37.
218. 18 U.S.C. § 2709(b) (1) (Supp. IV 2004).
219. See Eggen, supra note 206.
220. See Gellman, supra note 8.
221. See Doe v. Ashcroft, 334 F. Supp. 2d 471, 483-84 (S.D.N.Y. 2004), vacated and remanded sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006).
222. See supra note 83 and accompanying text.
223. See Gellman, supra note 8.
224. See Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 COLUM. L. REV. 749, 758 (2003).
225. See id. at 758-59.
226. See id.
227. See Gellman, supra note 8.
228. See supra note 146 and accompanying text.
229. See Graham Hughes, Administrative Subpoenas and the Grand Jury: Converging Streams of Criminal and Civil Compuhory Process, 47 VAND. L. REV. 573, 580 (1994).
230. See id. at 581-82.
231. See id. at 582.
232. Id.
233. See id.
234. See, e.g., Lauren M. Weiner, Comment, "Special" Delivery: Where Do National Security Letten Fit into the Fourth Amendment?, 33 FORDHAM URB. L.J. 1453, 1470 (2006).
235. See Gellman, supra note 8.
236. See, e.g., Doe v. Ashcroft, 334 F. Supp. 2d 471, 522 (S.D.N.Y. 2004).
237. See id. at 523 (noting the importance of determining whether even isolated disclosures implicate national security).
238. See id.
239. See Risa Berkower, Note, Sliding Down a Slippery Slope? The Future Use of Administrative Subpoenas in Criminal Investigations, 73 FORDHAM L. REV. 2251, 2271 (2005).
240. Tooh to Fight Terrorism: Subpoena Authority and Pretrial Detention of Terrorists: Hearing Before the Subcomm. on Terrorism, Technology and Homeland Security of the S. Comm. on the Judiciary, 108th Cong. 43-44 (2004) (statement of Rachel Brand, Principal Deputy Assistant Att'y Gen.), available at http://judiciary.senate.gov/testimony.cfm?id=1235&wit_id=3609.
241. See generally CHARLES DOYLE, AM. LAW DIV., CONG. RESEARCH SERV., USA PATRIOT ACT SUNSET: PROVISIONS THAT EXPIRE ON DECEMBER 31, 2005 (2004), http://www.fas.org/irp/crs/RL32186.pdf (describing the Patriot Act sections that included sunset provisions).
242. See id.; supra Part I.B.
243. See supra Part U.C.
244. See supra Part I.A.
245. See id.
246. See 18 U.S.C.A. § 3511(c) (Supp. 2006).
247. Most of the information that the FBI can compel via NSLs could alternatively be obtained, at least in theory, via computer hacking. This further emphasizes the novelty of the Fourth Amendment questions presented by such a form of compulsion.
248. The FBI has used hacking as a form of "self-help" in nondomestic computer crimes investigations. See, e.g., United States v. Gorshkov, No. CR00-550C, 2001 WL 1024026 (W.D. Wash. May 23, 2001) (validating the FBI's use of a "sniffer" program, which allowed the FBI to obtain the suspect's password in a case involving international seizure of computer equipment).
249. See, e.g., United States v. Ventresca, 380 U.S. 102 (1965).
250. See YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE: CASES, COMMENTS AND QUESTIONS 358-63 (11th ed. 2005).
251. See generally David J.S. Ziff, Note, Fourth Amendment Limitations on the Execution of Computer Searches Conducted Pursuant to a Warrant, 105 COLUM. L. REV. 841 (2005) (comparing computer searches to physical searches of property).
252. See Doe v. Ashcroft, 334 F. Supp. 2d 471, 522 (S.D.N.Y. 2004), vacated and remanded sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006).
253. See id. at 494 n.118.
254. See id. at 511.
255. See KAMISAR, supra note 248, at 316-17.
256. See supra Part ILA-B.
257. See supra Part II.C.
258. See supra note 194.
259. Cf. Doe v. Ashcroft, 334 F. Supp. 2d 471, 481 (S.D.N.Y. 2004), vacated and remanded sub nom. Doe v. Gonzales, 449 F.3d 415 (2d Cir. 2006) (noting that, even before the ECPA, "the FBI had been issuing non-mandatory NSLs to communications providers, who, in most cases, complied voluntarily").
260. See supra Part III.C.1.
261. See supra Part II.B.
262. See Ashcroft, 334 F. Supp. 2d at 521.
263. See id. at 496.
264. See id. at 495 ("[T] he constitutionality of the administrative subpoena is predicated on the availability of a neutral tribunal to determine . . . whether the subpoena actually complies with the Fourth Amendment's demands.").
265. See id.
266. See id. at 506.
267. See id.
268. See id. at 505-06.
269. Miranda v. Arizona, 384 U.S. 436 (1966).
270. United States v. Edwards, 415 U.S. 800 (1974).
271. See KAMISAR, supra note 248, at 715 (collecting and summarizing cases).
272. See supra notes 120-121.
273. See supra Part II.A-B.
274. See id.
275. See id.
276. See, e.g., Editorial, Patriot Act Cosmetics, ST. PETERSBURG TIMES, Mar. 10, 2006, at 14A.