The American Civil Liberties Union (ACLU) has published a refutation of the "Unintentional" Patriot Act Abuses that were reported over the past two days. It was widely reported that at least 739 "exigent letters" were used illegally to circumvent the National Security Letter (NSL) laws, and some NSLs were issued "after the fact" to "cover" the actions. What was not widely reported is:
FBI agents contracted with phone companies to improperly obtain customer records, saying that subpoenas would later be issued in connection with an underlying investigation. But in a random examination of such "exigent letters," not one subpoena was sent, and in many cases the requests were not tied to any pending FBI investigations, in clear violation of the law.
More below the fold
Other details of the DOJ Report highlighted by the ACLU include:
The FBI issued NSLs even where no underlying investigation had been approved.
The FBI obtained more information from recipients than was requested.
The FBI obtained information about telephone numbers that did not belong to the target of the NSLs.
The FBI’s abuse of NSLs go beyond phone and email records; in some instances included medical records and educational records.
The FBI issued an NSL to a North Carolina university that sought applications for admission, housing information, emergency contacts, and campus health records.
The FBI has no uniform system for tracking responses to National Security Letters, either manually or electronically.
The FBI is sharing information derived from NSL with numerous U.S. intelligence agencies and even foreign governments.
The FBI "significantly understated" NSL requests reported to Congress in 2003, 2004, and 2005.
Some NSL recipients erroneously provided prohibited content to the FBI, including voice messages, emails, and images.
One part of the ACLU report that was a bit of a surprise was the number of NSL requests (demands) issued by the FBI...
(Before the PATRIOT Act of 2001)
2000 ... 8,500
(After the PATRIOT Act of 2001)
2003 ... 39,000
2004 ... 56,000
2005 ... 47,000
But as pointed out in the DOJ Report, these are understated numbers. The real numbers are higher. How much higher is unknown at this time.
You would think that by having an average of more than 47,000 terrorism inquiries every year that there must be a whole lot of terrorist activities going on in this country. Somehow, I just do not believe that these activities are all related to terrorism.
ACLU Executive Director Anthony D. Romero said:
... It simply is not credible for the FBI to claim that these unauthorized and illegal fishing expeditions were the result of human error or outmoded computer systems ... It seems that every time the American people entrust the Bush administration with some new power, it not only abuses that power but also seizes additional powers without our knowledge.
The ACLU also produced an analysis, "ACLU Analysis and Recommendations: Justice Department OIG Report on Misuse of National Security Letters." Some of the details:
NSL Record-Keeping/Data-Retention/Data-Sharing
The FBI had no policy or directive requiring the retention of signed copies of national security letters or any requirement to upload NSLs into various FBI case management systems.
The FBI has "no uniform system for tracking responses to national security letters, either manually or electronically."
The FBI keeps NSL-derived information in various databases – including databases that are accessed by nearly 12,000 users,
The FBI is using NSLs to establish evidence to support wiretap, electronic surveillance and physical search warrants.
The FBI disseminated information derived from NSLs to a variety of federal, state, and local law enforcement agencies, including the National Security Agency (NSA), the CIA, and Joint Terrorism Task Forces (JTTFs).
The FBI is even sharing information derived from NSLs with foreign governments.
FBI policies do not require the purging of information derived fro NSLs in FBI databases, regardless of the outcome of the investigation.
Underreporting Use
The IG found approximately 17% more NSLs in the case files than were recorded in the database.
The IG found 22% more NSL requests in the case files than were recorded in the database.
The IG estimates that about 6% of NSL requests issued by the FBI from 2003-2005 were missing from the database.
Number, Content, and Targets of Requests
The IG found that from 2003 to 2005, the FBI issued a total of 143,074 NSL requests.
The "overwhelming majority" of these NSL requests sought the most sensitive information – telephone toll billing records, telephone and email subscriber information, or electronic communication transactional records.
The percentage of NSL requests generated from investigations of U.S. citizens and legal permanent residents increased from about 39% of all NSL requests in 2003 to about 53 percent of all NSL requests in 2005.
NSLs as Fishing Expedition
The IG reported that the FBI’s analysis of personal information gleaned through NSLs is used to assist in the identification the NSL subject’s family members, associates, living arrangements and contacts.
NSLs require only a threshold showing of "relevance to an authorized investigation." As a result, the FBI uses NSLs to obtain personal information "two or three steps removed" from the target of any investigation.
The FBI maintains no information on whether the target of the NSL is the subject of an underlying investigation or another individual.
Other parts in the ACLU Analysis, omitted here, include: Violations and Misuse of the NSL Power, Lack of Internal and Statutory Guidance and Exigent Letters.
In another quote by the ACLU Executive Director Anthony D. Romero, he said:
The Inspector General’s report should come as no surprise ... And it should come as no surprise that Attorney General Gonzales is eager to blame the FBI, or that the FBI engaged in these abuses. The Attorney General and the FBI are part of the problem and they cannot be trusted to be part of the solution. Congress must act immediately to repeal these dangerous Patriot Act provisions.
I could not agree more.