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To: Counterterrorism From: Office cof the General Counsel Re: 319X-HQO-AL487720-0GC 04/11/2006 established, the fees that are or will be charged by credit reporting companies for 1681lu requests are approximately ten dollars, which appears reasonable, as well as in line with the hourly rate set by the RFPA schedule.‘ The Problem to be Addressed by this Guidance Having canvassed FBI field offices as to whether they would like to see the FBI adopt a uniform policy with respect to reimbursement of costs of NSL recipients, the Office of the General Counsel (OGC) has determined that field offices do in fact want a uniform policy. That is the genesis of this guidance. However, since this iS an operational issue and not a legal issue, OGC has also obtained the concurrence of the FBI's Counterterrorism Division, Counterintelligence Division, and Cyber Division that a uniform policy is desirable. Thus, this guidance is intended to create a uniform policy as to reimbursement of costs of NSL recipients, the creation of which uniform policy is particularly crucial with respect to those statutes which do not provide for compensation, such as ECPA and FCRA Section 168lv. Reimbursement of Costs Incurred by ECPA NSL recipients The FBI hereby adopts the policy that, since it has no legal obligation to reimburse costs incurred by an NSL recipient in producing information sought by an ECPA NSL, that it will not pay bills that are submitted by ECPA NSL recipients for such information. Its position is supported by the fact that the ECPA specifically provides for certain instances in which compensation to recipients of legal process is available, Those enumerated provisions do not include Section 2709.° Further, since certain NSL statutes do contain reimbursement provisions, it is clear that when Congress so intended, it did in fact enact such a provision. While there is net necessarily any obvious rationale to the determination of which NSL statutes contain reimbursement provisions, the fact is that Congress has had opportunities to remedy what may have b nd has not done so. Transunion currently charges ten dollars for 168lu requests, but does not charge for 1681lv requests. Experien currently charges $9.20 per report. *Pitle 18, Section 2796(a} of ECPA provides for a reimbursement fee for obtaining "the contents of communications, records, or other information under section 2702, 2703, or 2704," except the provision does not apply. per section 2706{(c}, "with respect to records or other information maintained by a communications common carrier that relate to telephone toll records and telephone listings cbtained under section 2703 of this title. The court may, however, order a payment as described in subsection fa} if the court determines the information required is unusually voluminous in nature or otherwise caused an undue burden on the provider." bS