Congress continues to exercise oversight of the Federal Bureau of Investigation's (FBI) misuse of USA PATRIOT Act powers. The Senate Judiciary Subcommittee on the Constitution, Civil Rights and Property Rights held a hearing on the Department of Justice (DOJ) Inspector General report on the misreporting and abuse of National Security Letter (NSL) powers. A common theme from the four witnesses at the hearing was the need for Congress to reform the USA PATRIOT Act and curtail the FBI's NSL powers.

The DOJ Inspector General reported on March 9 that the FBI has been systematically underreporting to Congress the number of NSL requests and has repeatedly violated federal law and agency policies in collecting personal information. Without court approval, the FBI can issue NSL requests that require Internet service providers, telephone companies, credit reporting agencies, and banks to disclose information relating to individuals':

• Internet use: websites visited and the e-mail addresses to which and from which e-mails were sent or received
• Telephone use: the times and durations of calls and the numbers to which or from which calls were received or dialed
• Financial transactions: checking and savings account information, credit card transactions, loan information, credit reports and other financial information

The witnesses before the Senate subcommittee criticized the expansions made to the FBI's NSL powers under the USA PATRIOT Act. The USA PATRIOT Act significantly broadened the NSL provisions — previously restricted to suspected terrorists or spies — to cover any information that is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities." The USA PATRIOT Act also expanded approval authority of NSLs beyond senior FBI Headquarters officials to all special agents in charge of the FBI's 56 field offices. There is no policy regarding how long information collected through NSLs can be maintained or under what circumstances information must be disposed.

Suzanne E. Spaulding, former Deputy General Counsel of the Central Intelligence Agency, stated in her testimony, "Clear rules and careful oversight provide essential protections for those on the front lines of our domestic counterterrorism efforts. Unfortunately, it appears both were lacking in the implementation of national security letter authorities."

Former Rep. Bob Barr (R-GA) testified, "For over five years, those of us who fight to defend the Constitution from government overreach have pleaded with Congress to put reasonable checks and balances on intrusive powers created by the PATRIOT Act. Those pleas have largely fallen on deaf ears; and until a few weeks ago, the FBI operated in the dark, hiding its abuse of power from Congress and the public."

The DOJ Inspector General report found:

• Reporting Errors: 22 percent of the NSL requests investigated by the Inspector General were not reported
• Violations of Law and Policy: One-fifth of the investigated NSL files contained unreported violations of federal law and policy
• Abuse of Exigent Letters: 700 exigent letters (letters to request information in emergency situations) were used illegally in non-emergency situations to collect information from three telecommunications companies on over 3,000 telephone numbers

All of the witnesses, including Peter Swire, former Chief Counselor for Privacy in the Clinton administration, called for reform of the NSL powers of the USA PATRIOT Act. Swire stated that Congress should require judicial approval of NSL requests and narrow the showing of a connection to a terrorist or a foreign power. Additionally, Swire recommended mandating that information that is no longer pertinent be destroyed, reforming the gag rule for NSL recipients, and requiring the issuance of a "Statement of Rights and Responsibilities" to accompany NSL requests.

"We should update our law enforcement and intelligence tools to respond to new technology and new threats," said Swire. "We should similarly update checks and balances to draw on the traditions and capabilities of all three branches of government."

According to the Congressional Research Service, two federal courts have found the "NSL statutes could not withstand constitutional scrutiny unless more explicit provisions were made for judicial review and permissible disclosure by recipients." The ruling in Doe v. Ashcroft found that the USA PATRIOT Act provisions are in violation of the Fourth Amendment's protection against unreasonable searches and seizures and of the First Amendment's protection of free speech. The decision in Doe v. Gonzales also found the NSL powers to be in violation of the First Amendment.

George Christian, a party in the Doe v. Gonzales case, testified before the subcommittee, "Though our gag order was lifted, several hundred thousand other recipients of national security letters must carry the secret of their experiences to the grave."

Several bills have been introduced to reform the NSL powers of the FBI. Rep. Jane Harman (D-CA) introduced the National Security Letter Judicial and Congressional Oversight Act (H.R. 1739) on March 28. The bill would accomplish many of the reforms suggested by witnesses at the subcommittee hearing. The Congressional Research Service reports that other NSL reform bills were introduced in the 109th Congress. These bills may be reintroduced in the 110th as the controversy over the FBI's abuse of NSL powers continues to develop.