Understanding Federal Subpoenas vs. National Security Letters

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Last Updated on: 2nd October 2023, 05:52 pm

 

Understanding Federal Subpoenas vs. National Security Letters

When the government wants to obtain records or documents related to an investigation, they have a few options. Two of the main tools are federal subpoenas and National Security Letters (NSLs). Both allow the government to compel a company or organization to hand over information, but there are some key differences between the two.

What is a Federal Subpoena?

A federal subpoena is a writ or order issued by a federal court or grand jury that compels a person or organization to produce documents, records, or testimony relevant to a criminal investigation. Subpoenas are commonly used in both criminal and civil cases.

To issue a subpoena, federal agents must first obtain approval from a federal prosecutor. The prosecutor then goes before a federal judge or grand jury to get the subpoena authorized. This provides some judicial oversight of the subpoena process.

Once issued, the subpoena is served on the target, who is then legally required to provide the requested records or testimony. There are penalties for failing to comply with a federal subpoena, including being held in contempt of court.

Key Features of Federal Subpoenas

• Require prosecutor approval
• Must be authorized by judge or grand jury
• Target can challenge or modify subpoena in court
• Failure to comply may result in contempt of court charges

In summary, federal subpoenas provide some due process protections and oversight by requiring judicial approval. The target also has the ability to challenge the subpoena in court if they believe it is overly broad or unreasonable.

What is a National Security Letter?

A National Security Letter (NSL) is an administrative subpoena issued directly by the FBI or other government agencies like the CIA or NSA. NSLs allow the government to compel internet service providers, banks, credit bureaus and other organizations to hand over certain customer records and data.

NSLs were expanded under the USA PATRIOT Act passed after 9/11. They allowed the FBI to quickly gather records related to national security investigations without court approval.

Key Features of National Security Letters

• Issued directly by FBI or government agency
• No need for prosecutor or judicial approval
• Gag order prevents recipient from disclosing NSL
• Limited ability for recipient to challenge NSL

NSLs allow the government to obtain sensitive information without any independent oversight. The gag orders also mean that recipients cannot even disclose they received an NSL, preventing public awareness of their use.

Key Differences

When comparing federal subpoenas vs. NSLs, there are some important distinctions:

• Judicial Oversight – Subpoenas require approval by a judge or grand jury, while NSLs do not.
• Gag Order – NSLs come with gag orders preventing disclosure, subpoenas do not.
• Challenge Process – Subpoenas can be challenged or modified in court, NSLs cannot.
• Investigative Tool – Subpoenas are used for criminal cases, NSLs for national security/counterterrorism.

In summary, NSLs give the FBI and other agencies a powerful, secretive tool to compel records without judicial oversight. Subpoenas provide more balanced due process with checks on government power.

Criticisms of National Security Letters

NSLs have faced criticism from civil liberty advocates and legal scholars. Some of the main concerns include:

• Lack of judicial oversight creates potential for abuse of power
• Gag orders violate the First Amendment right to free speech
• Overly broad NSL requests invade privacy without sufficient justification
• Limited ability for recipients to challenge NSLs in court

Several court cases have challenged the use of NSLs on Constitutional grounds:

• Doe v. Ashcroft – Ruled the NSL gag order violated the First Amendment
• Doe v. Mukasey – Found NSL gag orders and lack of proper judicial review were unconstitutional

While these cases established some limits, NSLs remain a powerful tool used thousands of times per year with minimal oversight.

Reforming and Overhauling NSLs

There have been legislative attempts to reform or overhaul the NSL process to add more accountability and judicial scrutiny. For example:

• Require higher level FBI approval before issuing NSLs
• Establish specific guidelines for narrow NSL requests
• Add a mandatory review process by a judge within 30 days
• Limit gag order periods and increase oversight of gag orders
• Require periodic audits of NSL use by the DOJ Inspector General

While incremental changes have passed, civil liberties groups continue to advocate for more substantial reform to NSLs to protect Constitutional freedoms.

Conclusion

Federal subpoenas and National Security Letters give the government tools to obtain information related to investigations. However, NSLs lack sufficient checks and balances that subpoenas provide through judicial oversight. Reforms to rein in NSL overreach face opposition from security agencies like the FBI. With NSL use continuing out of public view, the debate over national security vs. civil liberties persists.