About National Security Letters (NSL)

From time to time in the past we've made reference to "National Security Letters" (NSLs), as commonly used by the FBI in counterintelligence and counter terrorism investigations. The virtually certain use of NSLs in the various Russia Hoax related investigations also raised issues concerning the type of investigations that were opened.

This morning I was reading Jen Dyer's ruminations on the Tucker Carlson matter--Asking the right questions about the monitoring of Tucker Carlson. For the most part Dyer is discussing the same issues that we referred to (more briefly) here and here.

Dyer's questions are, of course, the right questions--she has the background to understand the importance of those questions for grasping what's going on. The bottom line, as we've discussed, is that the real issue is not that NSA is collecting data that pertains to USPERs like Tucker Carlson. The NSA collects all available data regarding all of us. But the real question is, What investigative agency is acquiring data pertaining to Tucker and using it in an investigation of some sort? The overwhelmingly most likely answer to that question is: The FBI.

What Dyer brings up in her article, in passing, touches on a slightly different matter, but one that is well worth understanding and keeping in the back of your mind. I'll reproduce here that brief passage, then unpack it a bit:

About National Security Letters

A post at Zerohedge yesterday alerted me to the fact that I've probably been remiss in failing to cover explicitly an important aspect of FBI national security investigations. That aspect is the use of what are called National Security Letters (NSL), in lieu of the Grand Jury Subpoenas that are used in criminal investigations. The Zerohedge post is Secret FBI Subpoenas For Personal Data Go Far Beyond Previously Known, so it's important to keep that distinction in mind. National Security Letters are what are known as administrative subpoenas:

An administrative subpoena under U.S. law is a subpoena issued by a federal agency without prior judicial oversight. Critics say that administrative subpoena authority is a violation of the Fourth Amendment to the United States Constitution, while proponents say that it provides a valuable investigative tool.

Well, the two are not, of course, mutually exclusive. A violation of the Fourth Amendment may well be, almost certainly will be, at the same time a "valuable investigative tool."

An important feature of administrative subpoenas, and especially in the case of NSLs, is that third parties--i.e., the persons and/or entities on the receiving end of these subpoenas--are subject to non-disclosure agreements: the very existence and issuance of these subpoenas or NSLs cannot be revealed to the targets. The validity of these non-disclosure agreements has been upheld in court--by the Ninth Circuit--as recently as 2017.

A second important feature of NSLs is that, like other administrative subpoenas, the issuing agency need only claim that the material or information sought is "relevant" to their investigation. In other words, there are none of the elaborate requirements and oversight schemes associated with that other premier counterintelligence investigative tool: FISA. FISA, as we know, requires probable cause of a crime, an elaborate approval process, and submission to a special court, the FISC. NSLs require essentially none of that--there is some oversight, on paper, but if FISAs are said to be "rubberstamped," you can imagine what the situation is like with NSLs. Basically, "revelant" is good enough and, like beauty, "revelant" is in the eye of the beholding agency: the FBI.