DOJ Report: FBI Needs Supervision in Use of Security Letters

Posted by Looseheadprop , Firedoglake at 11:24 AM on May 19, 2008.

The Center for Democracy and Technology has issued a scathing report on the FBI's attempts to self police with regard to compliance with regulations associated with the issuance of National Security Letters (NSLs). This comes as a result of two successive DOJ-IG reports showing systematic failures and abuses by the FBI in the management of these disclosure devices.

In October 2001, the PATRIOT Act dramatically weakened the standard for issuing NSLs by removing the requirement that the records sought with the NSL pertain to an "agent of a foreign power" such as a terrorist or a spy. The PATRIOT Act also eliminated the requirement that the government be able to articulate the factual basis for its suspicion.

Current law merely requires an FBI official to state "purely for internal purposes -- that the records are "relevant to" or "sought for" foreign counter-intelligence or terrorism purposes. Furthermore, an amendment adopted in 2003 dramatically expanded the institutions subject to NSLs to include travel agencies, real estate agents, jewelers, the Postal Service, insurance companies, casinos, car dealers and others.

Among other things, the IG found that the FBI issued NSLs when it had not even opened the investigation that is the only predicate for issuing an NSL. It found that the FBI retains almost indefinitely the information it obtains with an NSL, even if the record subject turns out to be innocent of any crime and of no intelligence interest.

It also found that the Attorney General had refused to adopt adequate "minimization" procedures designed to protect the privacy of information about innocent Americans obtained with an NSL, even though an interagency working group had recommended such procedures.

So, the CDT is calling for an overhaul of the legislation related to NSLs. After the 2007 IG report, CDT reports that the FBI did institute internal rules and training which improved things somewhat with regard to agents actually opening a case before issuing an NSL, or returning or destroying information received but not relevant to the investigation. However, the 2008 IG report still found that the internal review process prior to issuing an NSL was stil insufficient.

In some instances, for example, the supervisor's approval memo was inconsistent with the case agent's request, suggesting that supervisors were not carefully reading case agent claims. Even more tellingly, the IG expressed concern that mid-level supervisors in FBI field offices were reluctant to turn down NSL requests for fear of antagonizing their supervisor -- the head of the field office. Most importantly, the IG also found that the FBI had used NSLs to circumvent the FISA Court's refusal to authorize surveillance on First Amendment grounds.

Therefore, CDT is supporting two bills that can provide some oversight.

In the Senate:

The National Security Letter Reform Act, S. 2088 [pdf], goes to the core issue. First, it would separate information that can now be obtained with an NSL into sensitive and less sensitive categories. The less sensitive information -- including information identifying a customer by name and address -- would continue to be available to the government by means of an NSL.

However, the bill would tighten the standard for issuing NSLs even for less sensitive information, to prevent fishing expeditions. Other, more sensitive information, such as telephone dialing information, the 'To" and "From" lines on email, and the details of one's checking and credit card transactions would require a court order. The bill would also impose a time limit on the "gag orders" that normally accompany NSLs and would require that any gag be narrowly tailored.

And in the House:

The House counterpart, the National Security Letters Reform Act (H.R. 3189), would not require judicial approval, but it would impose a time limit and tighter requirements on issuance of gag orders. The House bill would also return to the pre-PATRIOT "agent of a foreign power" standard for issuing NSLs.

It would create a civil damages remedy against "any person issuing or obtaining the issuing" of an NSL contrary to law. Both bills would require the Attorney General to issue strong minimization procedures to protect irrelevant information pertaining to Americans.

Here's their letter endorsing the Senate bill.

Tagged as: patriot act, fbi, national security letter