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Unpublished Paper
Enforcing the Enforcer: Enhancing the FBI’s Accountability for the Use of National Security Letters
ExpressO (2011)
  • Joshua C. McDaniel
Abstract

In 2007, the U.S. Justice Department’s Office of the Inspector General issued the first in a series of three reports revealing that on thousands of occasions the FBI had improperly or illegally used its authority to issue national security letters. The national security letter enables the FBI to obtain confidential customer information from banks, ISPs, telephone companies, and other institutions without first obtaining a warrant or a grand jury subpoena and without the customer ever realizing.

This Comment argues that the abuses of NSL authority revealed in the Inspector General’s reports result significantly from the FBI’s lack of horizontal accountability (to the legislative and judicial branches and to other agencies within the executive branch) and vertical accountability (to individuals bringing lawsuits against the government or government officials). The absence of accountability is a unique feature of the FBI’s NSL authority and derives from the FBI’s need for secrecy in carrying out national security investigations.

Given the Inspector General’s findings of widespread abuse of the NSL authority, the case for reform is compelling. I offer two proposals that policymakers might consider. First, I propose the explicit creation of a statutory cause of action to affected individuals, along with a delayed disclosure mechanism intended to allow aggrieved individuals to learn of the FBI’s request of the individuals’ records. Second, I propose establishing an exclusionary rule for NSL-derived information, which would require certification in applications for FISA orders and in criminal proceedings of the validity of NSL-derived information. I argue that each of these proposals, though not comprehensive solutions, would enhance accountability and better protect individuals’ civil liberties while minimizing the costs in terms of the FBI’s ability to effectively carry out national security investigations.

Keywords
  • accountability,
  • private right of action,
  • exclusionary rule,
  • FBI,
  • national security letters,
  • ECPA
Disciplines
Publication Date
September 5, 2011
Citation Information
Joshua C. McDaniel. "Enforcing the Enforcer: Enhancing the FBI’s Accountability for the Use of National Security Letters" ExpressO (2011)
Available at: http://works.bepress.com/joshua_mcdaniel/1/