Why Use a National Security Letter When You Have Post-It Notes?

In a report (PDF) issued today, Justice Department Inspector General Glenn Fine shows that the FBI routinely broke the law for several years by demanding telephone records through informal methods that were not authorized by statute. The abuses, which involved thousands of records, are especially striking because it is not very hard for the FBI to obtain this information legally. The Electronic Communications Privacy Act (ECPA) allows the bureau to demand records from phone companies through a "national security letter" (NSL) signed by the director or an official he designates. Under FBI policy, any special agent in charge can sign an NSL, which simply states that the records sought are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."

In 2003 FBI officials began dodging this minimal requirement by asking telecommunications carriers to suppy records without the legally required NSL "due to exigent circumstances" and promising to provide an NSL after the fact. These so-called exigent letters, which were often used when no emergency actually existed, were an extralegal contrivance that violated ECPA, bureau policy, and guidelines issued by the attorney general. The retroactive NSLs promised by the exigent letters often failed to appear because there was no authorized investigation to which they could be linked. To fix that problem, FBI officials resorted to another illegal procedure, issuing "blanket" NSLs tied to no particular investigation.

Even these pseudolegalities look downright upright next to the FBI's other informal methods of obtaining records, which included requests by email, phone, post-it note, and in-person oral communication as well as "sneak peeks," which were about as legitimate as they sound. The failure to follow the established NSL process is legally significant because ECPA prohibits telecom companies from disclosing customer records to the government except in specified circumstances. One of them is not when an FBI agent shows up at your office and says, "Mind if I take a look at that?"

The targets of the FBI's illegal record grabs are unknown, with one major exception. "Some of the most troubling improper requests for telephone records," the inspector general's report notes, "occurred in media leak cases, where the FBI sought and acquired reporters' telephone toll billing records and calling activity information without following federal regulation or obtaining the required Attorney General approval." In 2008 FBI Director Robert Mueller apologized for the bureau's improper snooping on foreign correspondents for The New York Times and The Washington Post.

Although the bureau's unauthorized data demands came to the attention of the FBI general counsel's office in 2004, they continued for two more years. The bureau did not stop using the illegal record-gathering methods until after Inspector General Fine issued his first report on the problem in March 2007. "We found widespread use of exigent letters and other informal requests for telephone records that did not comply with legal requirements or FBI policies," the new report says. "Our review also found that the FBI's initial attempts at corrective action were seriously deficient, ill-conceived, and poorly executed."

This episode speaks volumes about the willingness and ability of the FBI (or any law enforcement agency) to police itself. The natural tendency to cut corners for the sake of a noble goal, and to overlook such corner cutting when it's done by your colleagues, is one reason why it's a good idea to have someone outside the agency review its demands for information. Once that requirement is eliminated, it is not safe to assume that the remaining precautions will actually be followed, let alone be adequate to protect the privacy of innocent people.

The inspector general's report is here (PDF); go to page 270 for the conclusions and recommendations. The ACLU reacts. Previous Reason coverage of the issue here. Last week Brian Doherty asked if privacy can "survive the digital revolution."

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  • ||

    They don't call them Famous But Incompetent for nothing.

  • John Tagliaferro||

    Did they leave out the give-them-a-call method or did I read right past it?

    Frequently requests by various agencies are made by phone, leaving no text record other than the response (usually).

  • ||

    They are not following procedures because the FBI is completely broke and the procedures are insane. Every FISA request must be approved personally by the head of the Bureau. That is before it goes before the FISA court. So is anyone surprised that agents in the field said screw it and cut corners?

    This is not the result of evil FBI agents wanting to spy on people. This is the result of completely insane bureaucrats and ass covering politicals creating an unworkable system. Let the agents and the FISA court do their jobs and stop requiring every request to go to the director.

  • EscapedWestOfTheBigMuddy||

    Didn't RTFA, huh?

    The Electronic Communications Privacy Act (ECPA) allows the bureau to demand records from phone companies through a "national security letter" (NSL) signed by the director or an official he designates. Under FBI policy, any special agent in charge can sign an NSL, which simply states that the records sought are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."

    We are talking about NSLs, and every single SAIC can sign one of those things. Just sign it mind you, it could be typed up by the cute girl from the steno pool.

  • David||

    I'm sorry but did you just say "let them do their jobs"? Better to lay them all off and shutter the doors. If after all this time and at great expense this is what they do then we're better off policing ourselves.

  • ||

    Under FBI policy, any special agent in charge can sign an NSL, which simply states that the records sought are "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."

    That's what makes the statute unconstitutional. When in the hell is someone going to get this before the supreme court?

    -jcr

  • Lindsey M. WIllaims||

    This is a great post. Attorneys for Bassem Youssef, the FBI whistleblower who exposed the abuse of exigent letters and according to the Washington Post "forced the hand" of FBI management to take corrective action, have released a response to today's Inspector General report. It can be found here: http://bit.ly/88fuhB

  • ||

    I've been dealing with law enforcement types trying to get medical records for years. Its astonishing how many of them get all offended when I refuse to release the records in violation of state and federal law, and send them back to get a subpoena, warrant, or release signed by the patient.

    Its depressing how infrequently they actually come back with legal paperwork.

  • ||

    ?

    I thought medical records were privileged. Doctor/patient confidentiality and all that.

  • ||

    They are protected, but the protection isn't absolute.

  • ||

    They are. Which is why the LEOs never come back with a warrant, because they can't get one. Which is why they try to get them released without one.

  • ||

    Dean's right.

    He didn't say the never come back, he said it's infrequent.

    Of course demanding that LEOs obey the law is out of bounds by their standards. Cry babies.

  • ||

    I've been dealing with law enforcement types trying to get medical records for years.

    Something I would just love to do in such a situation is ask the officer making the illegal request to wait in my lobby, and then go and call 911 to report someone impersonating an officer of the law. When the patrolmen show up, explain that since the person in question made an obviously illegal demand, he must be an impostor, and an incompetent one at that.

    -jcr

  • Robert Mueller||

    so-called exigent letters, which were often used when no emergency actually existed, were an extralegal contrivance

    "Extralegal." That's like double-plus good, right?

  • David||

    "double-plus good..."

    LOL! Thanks. Now I know there are other people out there who see this for what it is.

  • ||

    The bureau did not stop using the illegal record-gathering methods until after Inspector General Fine issued his first report on the problem in March 2007.


    If you believe that the government stopped doing illegal wiretaps in 2007 I have a bridge you may wish to purchase.

    Seriously, how many times do you have to hear "Oops! You caught us breaking the law, but we don't do that anymore. Honest injun, we're all on the straight and narrow now", before you just throw up your hands and cry "Bullshit"?

  • ||

    Usually followed by the injunction to "Trust us, because we're from the government and here to protect you."

  • ||

    The thing about this that really frustrates me is not just the people who buy the "honest injun" line, but who also get mad when I won't. "Ooo, you're so cynical! You darn libertopian, don't you understand that they're protecting us? If we don't trust them with unlimited power we'll all DIE DIE DIE!"

    Then they have to leave to go change their Depends.

  • ||

    "Ooo, you're so cynical! You darn libertopian, don't you understand that they're protecting us? If we don't trust them with unlimited power we'll all DIE DIE DIE!"

    Agreed. Heard that many, many times.

    In the case of those who say that, I kinda hope they DO "DIE DIE DIE".

  • Ryan M||

    I can rub their face in evidence like this and they don't see it as a problem... they're always willing to cut them some slack. They say things like "if you're not guilty, you have nothing to hide" and scoff at the idea that such investigations can be used for political purposes (even though this exact report shows evidence of it being used to investigate journalists). Can you guys think of a clue-by-4 I could use to beat the importance of this into their skulls?

  • ||

    You can lead a horse to water...

  • MoT||

    You've just reminded me about how the Gubmint always wrings its hands and tut tuts about how "egregious" something or other is. And how, when discussing new ways to invade our privacy and further turn the thumbscrews of totalitarianism, they have to put in place "safe guards" so that these ever more invasive secret powers won't be abused, which inevitably are, and then they tut tut some more. But does it cost THEM? You find that this Hegelian game is two steps forward and one back. It's all a sort of dictatorial two-step.

  • ||

    ... and that's why it's a good thing that Southers withdrew from the nomination to be TSA chief. Of course, some people don't think that abusing government databases to spy on your ex-wife's new boyfriend and then lying about it to Congress is important.

  • ||

    Normally I would say it depends on partisan politics. But since the congressional republicans had no problem being lied to when Bush was in power, who could take them serious if they object now?

  • ||

    . But since the congressional republicans had no problem being lied to when Bush was in power,

    Congress, both the Republicans and Democrats, knew far more about what Bush and the IC were doing than they pretended to later. After 9/11, it was all "do whatever you have to," but then a few years later they're all "shocked, shocked."

  • TP||

    My question is, has any of this "evidence" shown up in any criminal prosecution? Or should I say, has any of these records led to the discovery of evidence? If it has, then there's a damn good reason to have those secret military tribunals, isn't there?

  • ||

    My question is, has any of this "evidence" shown up in any criminal prosecution?

    Now, why in the world would they take the risk of having a court consider the question of whether the NSLs are legal?

    -jcr

  • Valhawk||

    I think the only approprite action should be the immediate and unappealable firing of every agent who used this procedure and a seiries of lawsuits against the telecoms as a whole and the responsible employees for each incedence where they provided information without the proper paperwork.

  • Tonio||

    I can't recall the details, and am TLTG, but I think Congress was going to grant the telcos blanket immunity for this.

  • ||

    If what the Inspector General could find was "routine", that means the reality is that it's absolutely endemic.

  • ||

    "The natural tendency to cut corners for the sake of a noble goal..."

    Well naturally the nobility can't be expected to follow the rules for the peasants.

  • ||

    You can't make an omelet without slaughtering millions of unbelievers.

  • ||

    Nicely scrambled metaphor, PL.

    Scott Adams' Dilbert is also on point here: "Don't step in the leadership."

  • ||

    Needless to say, my wife rarely makes me omelets.

  • EscapedWestOfTheBigMuddy||

    ... and that's why it's a good thing that Southers withdrew from the nomination to be TSA chief. Of course, some people don't think that abusing government databases to spy on your ex-wife's new boyfriend and then lying about it to Congress is important.

    Yeah. He should have cheated on his taxes. Then he'd be a shoe in.

  • ||

    This episode speaks volumes about the willingness and ability of the FBI (or any law enforcement agency) to police itself.

    It actually says more about the willingness of the telcos and other private institutions to give up your private info.

    Regardless of whether/how the FBI asked -- every single entity should have said "Give me a warrant or an NSL -- once I have that in hand then you can get what you want, until then sorry". If these companies asserted their rights (and they have huge legal departments for that) than the FBI wouldn't have to police itself. The reason the FBI didn't even bother to get NSLs in many cases probably has a lot to do with the fact that most telcos were all too happy to give them whatever the fuck they asked for.

    I don't think scorn should be reserved for the FBI -- law enforcement has always looked to get around warrent/probable cause requirements regardless of how hard/easy they would be to meet.

    It's more offensive to me that the telcos (and their legal departments) so easily give up private info.

    They should be sued like hell. There should be consequences for the telcos failure to protect your privacy.

  • ||

    I agree. But, then again, when the guy with the gun says "give me!" most will give.

  • Sean W. Malone||

    Yeah, geesh... Let's see, guy with an FBI badge a nice gun and an enormously powerful entity backing him comes in and says jump, and you were expecting the telecoms to... not do what they want?

  • ||

    If the telcos had any balls, they'd call their lawyers before complying with any illegal demand, no matter who it came from.

    If I were an AT&T shareholder, I'd be demanding that management protect my equity by refusing to take actions that could expose the company to massive losses in civil litigation by those whose privacy rights were violated.

    -jcr

  • MoT||

    Actually, if memory serves, Qwest didn't originally cave in to their demands. The other majors were all too happy. But with Congress willing to cover their sins with immunity you clearly have the pot calling the kettle black or whatever color it damn well wants. You can't expect criminals to police themselves especially when they write the laws to protect said "crimes". You, dear citizen... thy true name is "slave".

  • Gray Ghost||

    And Qwest's refusal certainly had nothing to do with their CEO getting indicted for insider trading in 2005.

    Who knows, maybe he was actually guilty. I think it was a good case of pour encourager les autres. How many telco executives could survive concentrated direct scrutiny by the SEC, FTC, and FCC?

  • ||

    "Give me a warrant or an NSL -- once I have that in hand then you can get what you want, until then sorry"

    A warrant, NOT an NSL. The NSL is unconstitutional, and it's the duty of a citizen to resist that kind of usurpation.

    -jcr

  • ||

    Considering the FBI Headquarters is housed in a building named after J Edgar Hoover, a man who ran roughshod over the Constitution for most of his fify year stint as the nation's number one cop, it really isn't surprising the Bureau is now ignoring the law. Will any agent be prosecuted for his actions? I doubt it. The FBI has been violating the Bill of Rights since its inception. The government couldn't even prosecute the Weathermen when they turned themselves in the 1970s because a trial would have revealed serial lawbreaking by the Bureau.

  • ||

    How about reviving the Constituion and demand that any search of phone records requires a warrant, signed by a judge? After all, getting such warrants have never been difficult. All it takes is some cop find a friendly judge.

  • ||

    Aren't all of the alphabet soup agencies illegal anyway? They amount to standing armies. And the FISA "court"?! Now there's a laugh and a half! How corrupt can things get before we oust every politician that has not upheld their oath of office and let them dangle if not.
    Enact Common Law Courts in your neighborhood! Get rid of Maritime Admiralty Courts and their black robed minions.
    Oops, sorry... "It is difficult to free fools from the chains they revere" - Voltaire

  • ||

    In a letter John Dalberg-Acton, 1st Baron Acton wrote to scholar and ecclesiastic Mandell Creighton, dated April 1887, Acton made his most famous pronouncement:

    "I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority. There is no worse heresy than the fact that the office sanctifies the holder of it."

    "You do not examine legislation in light of the benefits it will convey if properly administered, but in light of the wrongs it would do and the harms it would cause if improperly administered." ~ Lyndon B. Johnson

  • ||

    Recently Obama Signed a One Year Extension To The Patriot Act.

    It does not take much knowledge of history to understand how a corrupt U.S. Government could use National Security Letters under the Patriot Act—As A Political or Economic Weapon.
    Currently in the name of fighting terrorism, U.S. Government can use National Security Letters to search a Citizen’s private information and records without having to provide specific facts—the person’s information sought pertains to a foreign power or agent of a foreign power. Government can impose National Security Letters without probable cause on your employer, your business client(s) credit card providers, even your relationships. After you receive a National Security Letter, under current law you can’t tell anyone. National Security Letters if used by a tyrannical U.S. Government, could be very threatening to Americans when you consider methods used by other governments. For example in Nazi Germany, the Gestapo routinely targeted and damaged business people and companies that refused to support the Nazi Government by—interrogating their customers—about them. Not surprisingly targeted business people and companies found it difficult to make a living after their frightened customers and clients distanced themselves after Gestapo interrogation. Some German corporations with ties to the Reich government used the Gestapo to scare off their business rivals’ associates and customers—to take their business. A corrupt U.S. Government could as easily use National Security Letters in the same manner and to intimidate Americans exercising First Amendment Rights.

    Congress needs to pass legislation that prevents Government using National Security Letters to investigate Americans without first demonstrating a clear standard of probable cause.

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  • Global Exporters||

    You can't expect criminals to police themselves especially when they write the laws to protect said "crimes". You, dear citizen... thy true name is "slave".

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