In re: Under Seal v. Jefferson Sessions
Filing
FILED OPINION (SANDRA S. IKUTA, N. RANDY SMITH and MARY H. MURGUIA) AFFIRMED. Judge: SSI Authoring, FILED AND ENTERED JUDGMENT. [10510050] [16-16067, 16-16081, 16-16082]
Case: 16-16067, 07/17/2017, ID: 10510050, DktEntry: 87-2, Page 1 of 4
Termination Procedures for National Security Letter Nondisclosure Requirement
I. References
a.
b.
c.
d.
Right to Financial Privacy Act (RFPA), 12 U.S.C. §§ 3401-3422.
Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681-1681x.
Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2701-2712.
Domestic Investigations and Operations Guide, Federal Bureau of Investigation,
2015.
e. Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective
Discipline over Monitoring Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015).
II. Introduction
The FBI is statutorily authorized to issue NSLs only in connection with investigations to protect
against international terrorism or clandestine intelligence activities and to obtain one of only four
types of basic records: (i) telephone subscriber information, toll records, and other non-content
electronic communication transactional records, see 18 U.S.C. § 2709; (ii) consumer-identifying
information possessed by consumer reporting agencies (names, addresses, places of employment,
and institutions at which a consumer has maintained an account), see 15 U.S.C. § 1681u; (iii) full
credit reports, see 15 U.S.C. § 1681v; and (iv) financial records, see 12s
U.S.C. § 3414. An NSL
sion 01an investigation to
may issue for these records only if the information being sought is relevant to 7
es
protect against international terrorism or clandestine intelligence activities, except that NSLs
l v. S ly 11, 2
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may not be used to obtain a full credit report r S
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de in counterintelligence investigations unless there is
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an international terrorism nexus. in
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The FBI may impose a nondisclosure requirement on the recipient of an NSL only after
1 -1
o. of 6 authorized investigative agency, or an appropriate designee, that
certification by the N
head an
one of the statutory standards for nondisclosure is satisfied; that is, where there is good reason to
believe disclosure may endanger the national security of the United States; interfere with a
criminal, counterterrorism, or counterintelligence investigation; interfere with diplomatic
relations; or endanger the life or physical safety of any person. See, e.g., 18 U.S.C. § 2709(c).
The nondisclosure requirement prohibits the recipient of an NSL from disclosing information
protected by the nondisclosure requirement to anyone other than: (i) those persons to whom
disclosure is necessary in order to comply with the request; (ii) an attorney in order to obtain
legal advice or assistance regarding the request; or (iii) other persons as permitted by the head of
the authorized investigative agency, or a designee, described in the respective statute.
An NSL may issue, and a nondisclosure requirement may be imposed, only after rigorous review
and approval at a high level. With respect to the NSL itself, an agent must justify in writing why
the NSL is needed, i.e., the agent must provide a detailed explanation of the predication for the
investigation as well as the relevance of the information sought. That written explanation, as
well as the proposed NSL itself and any associated nondisclosure requirement, must be reviewed
and approved by the Supervisory Special Agent, Chief or Associate Division Counsel, Assistant
Special Agent in Charge, and Special Agent in Charge, or the equivalent-level officials at FBI
Headquarters (FBIHQ).
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The procedures set forth below (the “NSL Procedures”) govern the review of the nondisclosure
requirement in NSLs and termination of the requirement when the facts no longer support
nondisclosure. These NSL Procedures also ensure that such reviews are initiated at established
points in the life cycle of an investigation, and that such reviews and determinations are
documented in the FISA Management System (FISAMS) and the FBI’s central recordkeeping
system, and any successor systems.
These NSL Procedures recognize and incorporate by reference existing limits mandated by
statute on the imposition of the nondisclosure requirement in NSLs. The agent or analyst,
Supervisory Special Agent, Chief or Associate Division Counsel, Assistant Special Agent in
Charge, and Special Agent in Charge must assess whether the facts no longer support the
nondisclosure requirement included in an NSL. If the facts no longer support the nondisclosure
requirement, the FBI will provide notice to the recipient of the NSL, or officer, employee, or
agent thereof, as well as to any applicable court, as appropriate, when the nondisclosure
requirement has been terminated.
III. Review Procedures
A. Timeframe for Review
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Under these NSL Procedures, the nondisclosure requirement esanio shall17
of s NSL 0 terminate upon the
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v
1, provision was
closing of any investigation in which an NSL containing nondisclosure2
Sealof the July 1statutory standards issued
except where the FBI makes a determination r
for
de that one on existing
nondisclosure is satisfied. The FBI also will review d NSL nondisclosure determinations on the
in Un rchive all
cited 06 of the
three-year anniversary of the initiation7 a full investigation and terminate nondisclosure at
16
that time, unless the FBI determines that one of the statutory standards for nondisclosure is
. 161
othe effective date of these procedures, an investigation closes and/or
N
satisfied. When, after
reaches the three-year anniversary of the initiation of the full investigation, the agent assigned to
1
Among other things, the USA FREEDOM Act requires the FBI to “review at appropriate intervals” the
nondisclosure requirement of an NSL to assess whether facts supporting nondisclosure continue to exist. In the
legislative history accompanying the Act, Congress indicated that:
[t]hese procedures are based upon nondisclosure reforms proposed by President
Obama in January 2014. In remarks accompanying the issuance of PPD-28,
President Obama directed the Attorney General ‘to amend how we use National
Security Letters so that [their] secrecy will not be indefinite, and will terminate
within a fixed time unless the government demonstrates a real need for further
secrecy.’ In January 2015, as part of its Signals Intelligence Reform 2015
Anniversary Report, the Director of National Intelligence announced that: In
response to the President’s new direction, the FBI will now presumptively
terminate National Security Letter nondisclosure orders at the earlier of 3 years
after the opening of a fully predicated investigation or the investigation’s close.
Continued nondisclosure orders beyond this period are permitted only if a
Special Agent in Charge or a Deputy Assistant Director determines that the
statutory standards for nondisclosure continue to be satisfied and that the case
agent has justified, in writing, why continued nondisclosure is appropriate.
H. Rep. No. 114-109 (2015) at 24-25.
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the investigation will receive notification, automatically generated by FBI’s case management
system, indicating that a review is required of the continued need for nondisclosure for all NSLs
issued in the case that included a nondisclosure requirement. Thus, for cases that close after the
three-year anniversary of the full investigation, the NSLs that continue to have nondisclosure
requirements will be reviewed on two separate occasions; cases that close before the three-year
anniversary of the full investigation will be reviewed on one occasion. Moreover, NSL
nondisclosure requirements will be reviewed only if they are associated with investigations that
close and/or reach their three-year anniversary date on or after the effective date of these
procedures.
B. Review Requirements
The assessment of the need for continued nondisclosure of an NSL is an individualized one; that
is, each NSL issued in an investigation will need to be individually reviewed to determine if the
facts no longer support nondisclosure under the statutory standard for imposing a nondisclosure
requirement when an NSL is issued—i.e., where there is good reason to believe disclosure may
endanger the national security of the United States; interfere with a criminal, counterterrorism, or
counterintelligence investigation; interfere with diplomatic relations; or endanger the life or
physical safety of any person. See, e.g., 18 U.S.C. § 2709(c). This assessment must be based on
current facts and circumstances, although agents may rely on the same reasons used to impose a
nondisclosure requirement at the time of the NSL’s issuance where thes
current facts continue to
ion
snondisclosure of an NSL, the
support those reasons. If the facts no longer support the need for
Ses 1, 2017
nondisclosure requirement must be terminated. eal v.
1
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uly
ndertheved on J requirement will be subject to the
U
Every determination to continue interminate hi nondisclosure
ted or NSLs
iprocess that7 arccontaining a nondisclosure requirement are subject
c
same review and approval
06
to at the time of their issuance.1Thus, (i) the case agent will review the NSL, the original written
6- 6
1
No.
justification for nondisclosure, and any investigative developments to determine whether
nondisclosure should continue; (ii) the case agent will document the reason for continuing or
terminating the nondisclosure requirement; (iii) the case agent’s immediate supervisor will
review and approve the case agent’s written justification for continuing or terminating
nondisclosure; (iv) an attorney—either the Chief Division Counsel or Associate Division
Counsel in the relevant field office or an attorney with the National Security Law Branch at
FBIHQ—will review and approve the case agent’s written justification for continuing or
terminating nondisclosure; (v) higher-level supervisors—either the Assistant Special Agent in
Charge in the field or the Unit Chief or Section Chief at FBIHQ—will review and approve the
case agent’s written justification for continuing or terminating nondisclosure; and (vi) a Special
Agent in Charge or a Deputy Assistant Director at FBIHQ will review and make the final
determination regarding the case agent’s written justification for continuing or terminating
nondisclosure. In addition, those NSLs for which the nondisclosure requirement is being
terminated will undergo an additional review at FBIHQ for consistency across field offices and
programs. This review process must be completed within 30 days from the date of the review
notice given by the FBI’s case management system.
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C. Notification of Termination
Upon a decision that nondisclosure of an NSL is no longer necessary, written notice will be
given to the recipient of the NSL, or officer, employee, or agent thereof, as well as to any
applicable court, as appropriate, that the nondisclosure requirement has been terminated and the
information contained in the NSL may be disclosed. Any continuing restrictions on disclosure
will be noted in the written notice. If such a termination notice is to be provided to a court, the
FBI field office or FBIHQ Division that issued the NSL, in conjunction with FBI’s Office of
General Counsel, shall coordinate with the Department of Justice to ensure that notice
concerning termination of the NSL nondisclosure requirement is provided to the court and any
other appropriate parties.
D. Use of FBI Recordkeeping Systems
FBI will use its FISAMS system, or any successor system, to facilitate and document the review
process described above. Once the decision to continue or terminate a nondisclosure
requirement has been approved under the above review process, FISAMS will generate an
electronic communication (“EC”) that documents the justification and determination that will be
serialized into the FBI’s central recordkeeping system, unless otherwise exempted from being
serialized. The FBI will also use FISAMS and its central recordkeeping system, and any
successor systems, to facilitate the creation and transmittal of termination notices to NSL
ns
recipients and any court, as appropriate.
essio
017
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1, 2
eal vbe included during the annual NSL
S will n July 1
Audits to ensure compliance with thesender
procedures
o
reviews conducted by FBI’s Inspection Division, as d as during periodic National Security
in U rchive well
d
c te 067 Justice at each of FBI’s 56 field offices.
Reviews conducted by theiDepartment ofa
6
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o.Matters
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E. Administrative
This policy is not intended to, and does not, create any right or benefit, substantive or procedural,
enforceable at law or equity by any party against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other person.
The NSL Procedures will be effective 90 days from the date of the Attorney General’s approval.
November 24, 2015
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