[Infowarrior] - FBI Issues New Rules For Getting Phone Records

[Richard Forno]

FBI Issues New Rules For Getting Phone Records

By John Solomon
Washington Post Staff Writer
Tuesday, March 20, 2007; A06

http://www.washingtonpost.com/wp-dyn/content/article/2007/03/19/AR2007031901
775_pf.html

The FBI, which has been criticized for improperly gathering telephone
records in terrorism cases, has told its agents they may still ask phone
companies to voluntarily hand over toll records in emergencies by using a
new set of procedures, officials said yesterday. In the most dire
emergencies, requests can be submitted to the companies verbally, officials
said.

This month, the bureau sent field agents a new "emergency letter" template
for seeking the records, shortly before the public release of a report by
the Justice Department's inspector general that documented abuses of
emergency phone-records collection by counterterrorism agents, officials
said. That report created a furor on Capitol Hill and prompted FBI Director
Robert S. Mueller III to take personal responsibility.

The report documented instances in which agents gathered phone records
between 2003 and 2005 using emergency powers when no emergencies existed. It
also reported that agents did not follow basic legal requirements, such as
certifying that requests for phone records were connected to authorized FBI
investigations.

New rules from the FBI general counsel's office tell agents they are to
limit emergency requests for phone records to the most dire situations, in
which the loss of life or bodily harm is believed to be imminent. They are
to document carefully the circumstances surrounding the request.

Agents also have been relieved of a paperwork burden that was at the heart
of past problems, officials said.

Under past procedures, agents sent "exigent circumstances letters" to phone
companies, seeking toll records by asserting there was an emergency. Then
they were expected to issue a grand jury subpoena or a "national security
letter," which legally authorized the collection after the fact. Agents
often did not follow up with that paperwork, the inspector general's
investigation found.

The new instructions tell agents there is no need to follow up with national
security letters or subpoenas. The agents are also told that the new letter
template is the preferred method in emergencies but that they may make
requests orally, with no paperwork sent to phone companies. Such oral
requests have been made over the years in terrorism and kidnapping cases,
officials said.

"Emergencies will still come up. If we have a child kidnapping or a 'ticking
bomb' terrorist threat, we will ask the telecommunications carriers to
provide records under the authority provided by law," said FBI Assistant
Director John Miller. The new procedures, he said, will include "an audit
trail to ensure we are doing it the right way."

The new guidance to agents cites a provision in federal law allowing a
telephone provider to voluntarily turn over phone records to law enforcement
figures "in good faith" if they "believe that an emergency involving danger
of death or serious physical injury to any person requires disclosure
without delay," a senior FBI official said.