Friday, June 15, 2007

FBI Finds It Frequently Overstepped in Collecting Data

you think your immune to this type of action. I would bet those that are involved thought they were also.


FBI Finds It Frequently Overstepped in Collecting Data

By John Solomon
Washington Post Staff Writer
Thursday, June 14, 2007; A01

An internal FBI audit has found that the bureau potentially violated the
law or agency rules more than 1,000 times while collecting data about
domestic phone calls, e-mails and financial transactions in recent
years, far more than was documented in a Justice Department report in
March that ignited bipartisan congressional criticism.

The new audit covers just 10 percent of the bureau's national security
investigations since 2002, and so the mistakes in the FBI's domestic
surveillance efforts probably number several thousand, bureau officials
said in interviews. The earlier report found 22 violations in a much
smaller sampling.

The vast majority of the new violations were instances in which
telephone companies and Internet providers gave agents phone and e-mail
records the agents did not request and were not authorized to collect.
The agents retained the information anyway in their files, which mostly
concerned suspected terrorist or espionage activities.

But two dozen of the newly-discovered violations involved agents'
requests for information that U.S. law did not allow them to have,
according to the audit results provided to The Washington Post. Only two
such examples were identified earlier in the smaller sample.

FBI officials said the results confirmed what agency supervisors and
outside critics feared, namely that many agents did not understand or
follow the required legal procedures and paperwork requirements when
collecting personal information with one of the most sensitive and
powerful intelligence-gathering tools of the post-Sept. 11 era -- the
National Security Letter, or NSL.

Such letters are uniformly secret and amount to nonnegotiable demands
for personal information -- demands that are not reviewed in advance by
a judge. After the 2001 terrorist attacks, Congress substantially eased
the rules for issuing NSLs, requiring only that the bureau certify that
the records are "sought for" or "relevant to" an investigation "to
protect against international terrorism or clandestine intelligence

The change -- combined with national anxiety about another domestic
terrorist event -- led to an explosive growth in the use of the letters.
More than 19,000 such letters were issued in 2005 seeking 47,000 pieces
of information, mostly from telecommunications companies. But with this
growth came abuse of the newly relaxed rules, a circumstance first
revealed in the Justice Department's March report by Inspector General
Glenn A. Fine.

"The FBI's comprehensive audit of National Security Letter use across
all field offices has confirmed the inspector general's findings that we
had inadequate internal controls for use of an invaluable investigative
tool," FBI General Counsel Valerie E. Caproni said. "Our internal audit
examined a much larger sample than the inspector general's report last
March, but we found similar percentages of NSLs that had errors."

"Since March," Caproni added, "remedies addressing every aspect of the
problem have been implemented or are well on the way."

Of the more than 1,000 violations uncovered by the new audit, about 700
involved telephone companies and other communications firms providing
information that exceeded what the FBI's national security letters had
sought. But rather than destroying the unsolicited data, agents in some
instances issued new National Security Letters to ensure that they could
keep the mistakenly provided information. Officials cited as an example
the retention of an extra month's phone records, beyond the period
specified by the agents.

Case agents are now told that they must identify mistakenly produced
information and isolate it from investigative files. "Human errors will
inevitably occur with third parties, but we now have a clear plan with
clear lines of responsibility to ensure errant information that is
mistakenly produced will be caught as it is produced and before it is
added to any FBI database," Caproni said.

The FBI also found that in 14 investigations, counterintelligence agents
using NSLs improperly gathered full credit reports from financial
institutions, exercising authority provided by the USA Patriot Act but
meant to be applied only in counterterrorism cases. In response, the
bureau has distributed explicit instructions that "you can't gather full
credit reports in counterintelligence cases," a senior FBI official said.

In 10 additional investigations, FBI agents used NSLs to request other
information that the relevant laws did not allow them to obtain.
Officials said that, for example, agents might have requested header
information from e-mails -- such as the subject lines -- even though
NSLs are supposed to be used to gather information only about the
e-mails' senders and the recipients, not about their content.

The FBI audit also identified three dozen violations of rules requiring
that NSLs be approved by senior officials and used only in authorized
cases. In 10 instances, agents issued National Security Letters to
collect personal data without tying the requests to specific, active
investigations -- as the law requires -- either because, in each case,
an investigative file had not been opened yet or the authorization for
an investigation had expired without being renewed.

FBI officials said the audit found no evidence to date that any agent
knowingly or willingly violated the laws or that supervisors encouraged
such violations. The Justice Department's report estimated that agents
made errors about 4 percent of the time and that third parties made
mistakes about 3 percent of the time, they said. The FBI's audit, they
noted, found a slightly higher error rate for agents -- about 5 percent
-- and a substantially higher rate of third-party errors -- about 10

The officials said they are making widespread changes to ensure that the
problems do not recur. Those changes include implementing a
corporate-style, continuous, internal compliance program to review the
bureau's policies, procedures and training, to provide regular
monitoring of employees' work by supervisors in each office, and to
conduct frequent audits to track compliance across the bureau.

The bureau is also trying to establish for NSLs clear lines of
responsibility, which were lacking in the past, officials said. Agents
who open counterterrorism and counterintelligence investigations have
been told that they are solely responsible for ensuring that they do not
receive data they are not entitled to have.

The FBI audit did not turn up new instances in which another
surveillance tool known as an Exigent Circumstance Letter had been
abused, officials said. In a finding that prompted particularly strong
concerns on Capitol Hill, the Justice Department had said such letters
-- which are similar to NSLs but are meant to be used only in security
emergencies -- had been invoked hundreds of times in "non-emergency
circumstances" to obtain detailed phone records, mostly without the
required links to active investigations.

Many of those letters were improperly dispatched by the bureau's
Communications Analysis Unit, a central clearinghouse for the analysis
of telephone records such as those gathered with the help of "exigent"
letters and National Security Letters. Justice Department and FBI
investigators are trying to determine if any FBI headquarters officials
should be held accountable or punished for those abuses, and have begun
advising agents of their due process rights during interviews.

The FBI audit will be completed in the coming weeks, and Congress will
be briefed on the results, officials said. FBI officials said each
potential violation will then be extensively reviewed by lawyers to
determine if it must be reported to the Intelligence Oversight Board, a
presidential panel of senior intelligence officials created to safeguard
civil liberties.

The officials said the final tally of violations that are serious enough
to be reported to the panel might be much less than the number turned up
by the audit, noting that only five of the 22 potential violations
identified by the Justice Department's inspector general this spring
were ultimately deemed to be reportable.

"We expect that percentage will hold or be similar when we get through
the hundreds of potential violations identified here," said a senior FBI
official, who spoke on the condition of anonymity because the bureau's
findings have not yet been made public.

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