Understanding Federal Subpoenas vs. National Security Letters

Understanding Federal Subpoenas vs. National Security Letters

When the government wants to get information from a company or person, they have a few options. Two common ways are federal subpoenas and National Security Letters. These seem kind of similar, but there are some big differences. Let’s break it down so you can understand when each one is used and how they work.

What is a Subpoena?

A subpoena is a request for information from a court. There are a few types of federal subpoenas:

• Grand Jury Subpoena – This is issued by a federal grand jury during an investigation into a possible crime. The subpoena orders someone to hand over information that could help the investigation.
• Trial Subpoena – This orders someone to testify at a trial or provide evidence like documents.
• Subpoena Duces Tecum – This Latin name just means a subpoena to bring physical evidence to court.

The main thing about regular subpoenas is that they come from a court. A judge reviews the subpoena before it goes out to make sure the request seems reasonable. The court can put limits on what information has to be shared.

What is a National Security Letter?

A National Security Letter (NSL) is an administrative subpoena issued by the FBI or other government agencies. They are used to get information for national security investigations, like terrorism or spying. Some examples of when NSLs are used:

• Getting financial records from a bank related to the investigation
• Getting phone records from a cell provider for someone under investigation
• Getting electronic communication records from an internet company

Unlike regular subpoenas, NSLs don’t come from a court. The FBI can issue them without a judge reviewing them first. The FBI just needs to say the information is relevant to an investigation.

When are NSLs Used?

The FBI uses NSLs when they need information quickly for an investigation related to national security. Going through the court to get a subpoena takes more time. The FBI says this delays could harm investigations where time is critical.

NSLs are also useful when the FBI doesn’t want to reveal many details about an early ongoing investigation. Subpoenas through court could expose details about the case.

NSL Gag Orders

NSLs often came with a gag order. This meant the company getting the request couldn’t talk about it. The FBI said this was important to protect investigations.

But some companies fought back against the gag orders. They argued it violated free speech. In 2008, a court agreed the gag orders were not constitutional. Now gag orders are only allowed for limited periods when the FBI can show it’s needed.

Lack of Judicial Oversight

Another controversial part of NSLs is the lack of judicial oversight. Regular subpoenas have a judge reviewing them to prevent abuse of power. But the FBI can issue NSLs without any approval from a judge.

Civil liberties groups argued this power could be abused or misused without checks and balances. Some people said the NSL process should require the FBI to prove to a judge that the request is reasonable and related to an investigation.

Supporters argued that adding judicial oversight would just slow down investigations. The FBI said they use internal checks to prevent misuse of NSLs.

When is a Regular Subpoena Used Instead?

The FBI can’t use an NSL just anytime they want information. There are rules about when they need to use a regular subpoena with court oversight instead. Some examples:

• If the investigation focuses on ordinary crimes not related to national security
• If they need to get testimony from a witness
• If they need information for a trial instead of an investigation

In these cases, the FBI has to go through the court process and get a judge’s approval. The subpoena gives the target a chance to object or negotiate limitations.

Number of NSLs Issued

The FBI issues thousands of NSLs each year. In 2020, over 54,000 NSLs were issued. The number issued has increased dramatically since 9/11 and the Patriot Act expanded NSL powers.

The FBI says NSLs are essential tools to quickly gather information for national security investigations. But civil liberties groups argue there needs to be more transparency and oversight.

Fighting Back Against NSLs

When a company gets an NSL, they face a tough choice. They can comply with the request for information. Or they can fight back in court and try to get the NSL invalidated.

Some major companies like Google, Facebook, and Yahoo have chosen to fight NSLs. They argued the gag orders violated the First Amendment. And they said the FBI was overusing NSLs to get broad amounts of data.

The court battles led to some reforms like shorter gag order periods. But most attempts to require judicial oversight for NSLs have failed. Companies face an uphill legal battle if they want to fight back against an NSL.

NSL vs Subpoena Comparison

Here is a quick comparison of the key differences between NSLs and standard federal subpoenas:

Only used for national security investigationsCan be used for any federal investigation or trial

As you can see, federal subpoenas give the target more rights and have more oversight. But NSLs give the FBI a powerful tool to quickly get information without all those checks and balances.

Reforming the NSL Process

There is ongoing debate around reforming National Security Letters. Privacy advocates argue the NSL process needs more judicial oversight and transparency. But the FBI says this would undermine a crucial tool for national security.

Some reform ideas proposed include:

• Requiring the FBI to get court approval for NSLs
• Limiting gag orders to 30 days unless extended by a judge
• Requiring the FBI to notify targets when the investigation closes
• Increasing public reporting on how many NSLs are issued

But major reforms have stalled so far. The FBI continues to issue thousands of NSLs each year with minimal oversight. The battle over national security vs. civil liberties continues.