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53407257.

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March 13, 2008 | 1:04:30 PM

FBI Tried to Cover Patriot Act Abuses With


Flawed, Retroactive Subpoenas, Audit
Finds
By Ryan Singel

FBI headquarters officials sought to cover their informal and possibly illegal
acquisition of phone records on thousands of Americans from 2003 to 2005 by
issuing 11 improper, retroactive "blanket" administrative subpoenas in 2006 to three
phone companies that are under contract to the FBI, according to an audit released
Thursday.
Top officials at the FBI's counter-terrorism division signed the blanket subpoenas
"retroactively to justify the FBI's acquisition of data through the exigent letters or or
other informal requests," the Justice Department's Inspector General Glenn Fine
found.
The revelations come in a follow-up report to Fine's 2007 finding that the FBI abused
a key Patriot Act power, known as a National Security Letter. That first reports
showed that FBI agents were routinely sloppy in using the self-issued subpoenas and
issued hundreds that claimed fake emergencies.
With the flawed follow-up letters, the Counterterrorism division attempted to provide
retroactive legal justification for telephone data the division had gotten on 3,860
phone numbers, gotten either through verbal requests to the companies or false
emergency requests.
The letters are related to still-secret contracts the FBI's Communication Analysis Unit
has with AT&T, Verizon and MCI. The contracts pay the companies to store
subscribers' phone records for longer periods of time and to provide faster service for
FBI subpoenas. Those contracts began in May 2003, but the FBI refuses to release
them.
At least one of the letters was signed by an assistant director and none were cleared
with the FBI's general counsel.
FBI agents issue tens of thousands of National Security Letters annually to get phone
records, portions of credit histories, and track down IP addresses without getting a
judge's approval in cases involving suspected terrorism, computer crimes or
espionage.
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Additionally, some of those retroactive NSLs sought records that the FBI was not
authorized to obtain, and failed to explain -- as required by policy -- what
investigation the records pertained to. Fine found that all were "issued in violation of
internal FBI policy."
In his 2007 report on the FBI's use of that Patriot Act power during 2003 to 2005, Fine
disclosed that officials at the counter-terrorism division had issued more than 700
emergency requests for data to telephone companies -- so-called exigent letters --
most with false promises that a court order was in the works and would be delivered
after the fact. Those letters prompted a further investigation of those letters,
including a reported criminal probe of counter-terrorism officials, and Thursday's
report says an in depth report on that office is forthcoming.
The report shows the need for Congress to narrow the FBI's powers and strengthen
privacy laws, according to Mike German, a longtime FBI agent who now works for the
ACLU, who says it's clear the FBI has been breaking the law.
"The FBI has flagrantly put aside the rule of law and its internal guidelines time and
again," German said "This is the kind of abuse that is inevitable when we broaden the
government's surveillance power and do not attempt to modernize privacy
standards. Both the House and Senate have bills waiting to be marked up that will
greatly limit this authority. Congress needs to act on this now.”
The 187-page report (.pdf) focused on NSL usage in 2006 and how the FBI attempted
to correct the abuses brought to light by last year's report.
Fine said the FBI had made "significant progress in implementing our
recommendations," but tempered that statement by concluding "it is too soon to
definitively state whether the news systems and cohntrols developed by the FBI and
the Department will eleiminate fully the problems with the use of NSLs."
The Justice Department issued a statement Thursday saying it was pleased with
Fine's assessment of their efforts after his 2007 report and downplayed the report's
revelations of abuses in 2006, saying it is "no surprise that this year’s report found
problems similar to those identified in the first OIG report, which covered the period
2003 through 2005."
The Inspector General took issue with the FBI's inability to track where data is shared
or if the data is used in criminal prosecutions by state and local law enforcement. The
report also criticized the FBI's insistence that all data collected by the letters -- even
phone records that cleared a suspect -- should be stored for decades in the FBI's
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massive Investigative Data Warehouse. That storehouse allows investigators to


search for and comb through data from other investigations.
The FBI issued 49,425 NSLs in 2006, up slightly from 2005's 47,221 requests. Since
NSLs can name more than one person, phone number or email address, it is not
known how many persons were investigated through these requests. In a footnote,
Fine reveals that in a 2004 investigation the FBI issued 9 NSLs that sought subscriber
information on 11,100 phone numbers.

The report also shows that the FBI is increasingly targeting citizens and green card
holders, with more than 11,517 requests in 2006 targeting U.S. persons, while Non
U.S. persons were targeted with 8,605 requests.

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