The FBI illegally obtained thousands of private phone records from telecommunications companies during the Bush administration’s tenure in office, according to a report released Wednesday by the Department of Justice’s (DOJ) Office of the Inspector General.
The report specifically examined the FBI’s use of so-called “exigent letters,” which were supposed to be used as “holdovers” in extreme circumstances until a subpoena could be served for telephone records, but were instead used to bypass legal processes and standards in violation of the Electronic Communications Privacy Act (ECPA), as well as FBI and DOJ guidelines.
“While almost all exigent letters stated that subpoenas requesting the information had been submitted to a U.S. Attorney’s office … in fact subpoenas were not issued in many instances and in other instances had not been requested,” the report stated. “Moreover … exigent letters sometimes were used in non-exigent circumstances.”
In a prepared statement, FBI Assistant Director for Public Affairs Michael P. Kortan said, “FBI employees involved in this matter obtained the telephone records at issue to perform their critical mission to prevent a terrorist attack or otherwise to support a counterterrorism investigation.”
However, the report found that between 2002 and 2006, exigent letters were issued to improperly access phone records in three media leak investigations, including the phone records of reporters at The Washington Post and The New York Times.
Members of Congress were quick to criticize the FBI’s actions. “This was not a matter of technical violations,” said Sen. Patrick Leahy (D-Vermont), the chairman of the Senate Judiciary Committee. “This was authorized at the highest levels of the FBI, and continued for years…. When Americans break the law, there are consequences. No one in the FBI should be above the law.”
The ECPA states that communications providers “shall not knowingly divulge a record or other information pertaining to a subscriber or customer … to any government entity.”
Starting in 2002, the FBI hired an analyst from a major telecommunications company – its identity has been redacted in the report – to “assist in providing and analyzing telephone records associated with the September 11 hijackers and their associates,” according to the report. Initially, “the FBI obtained records from on-site Company A solely through grand jury subpoenas.”
A supervisory special agent in the FBI’s Communication Analysis Unit (CAU), which analyzes phone records for actionable intelligence and is not authorized to initiate national security investigations, signed the first exigent letters in November 2002.
In 2003 and 2004, the FBI entered into contracts with three telecommunications companies requiring each company to provide employees to work on-site in CAU office space and access for these employees to company databases. These employees “were also on call to the FBI after business hours,” according to the report.
From March 2003 to November 2006, CAU personnel issued 722 exigent letters for thousands of so-called “non-content” phone records, which include the date, time, duration and the incoming and outgoing numbers of each call.
Requesting records quickly devolved into an informal process. According to the report, “the FBI’s use of exigent letters became so casual, routine, and unsupervised that employees of all three communications providers told us that they – the company employees – sometimes generated the exigent letters for CAU personnel to sign and return to them.”
Sometimes, even exigent letters were not used to request phone records, which were also requested via email, face-to-face meetings, phone calls and even Post-it notes.
FBI Director Robert Mueller said he was unaware of any these practices until late 2006, and said they were discontinued after senior FBI officials were informed of the matter. After learning of the practices, however, the FBI issued 11 National Security Letters – an administrative subpoena demanding that an organization turn over data about an individual – in an attempt to “try to ‘cover’ or validate the improperly obtained records,” according to the report.
Despite violations of election privacy law and government guidelines, the DOJ’s Public Integrity Section has decided not to prosecute anyone who signed or was responsible for producing the exigent letters.
This alleged “cover-up,” in addition to the report’s other findings, had civil liberties groups and liberal Congressmen up in arms.
“This is the kind of abuse that is inevitable when we broaden the government’s surveillance power and don’t modernize privacy standards,” said Michael Macleod-Ball, acting director of the American Civil Liberties Union’s legislative office in Washington, DC. “It has become very clear that the FBI cannot police itself.”
Congressman Jerrold Nadler (D-New York), chairman of the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, called for a reform of legislation that allows law enforcement official to issue subpoenas without judicial oversight.
“This unconstitutional disregard for civil liberties is unfortunately in line with the culture of abuse of power which thrived under the Bush administration,” he said. “We simply must reign in NSL authority to meet constitutional standards…. And we must ensure that the FBI follows the Constitution as it seeks to protect our national security.”