[Infowarrior] - FBI Use of Patriot Act Authority Increased Dramatically in 2008

[Richard Forno]

Threat Level Privacy, Crime and Security Online
FBI Use of Patriot Act Authority Increased Dramatically in 2008

     * By Kim Zetter Email Author
     * May 19, 2009  |

http://www.wired.com/threatlevel/2009/05/fbi-use-of-patriot-act-authority-increased-dramatically-in-2008/

FISA-court authorizations for national security and counter-terrorism  
wiretaps dropped last year by almost 300, a new Justice Department  
report to Congress shows. But the FBI’s use of “national security  
letters” to get information on Americans without a court order  
increased dramatically, from 16,804 in 2007 to 24,744 in 2008.

The 2008 requests targeted 7,225 U.S. people.

This is still much lower than the number of NSLs issued in 2006 — more  
than 49,000 — but indicates that the FBI’s reliance on the self- 
authorized subpoenas is rebounding, after audits in 2006 and 2007  
revealed the bureau had been abusing the tool.

The new seven-page report (.pdf) was submitted to Congress last  
Thursday.

National security letters (NSL) are written demands from the FBI that  
compel internet service providers, credit companies, financial  
institutions and others to hand over confidential records about their  
customers, such as subscriber information, phone numbers and e-mail  
addresses, websites visited and more.

NSLs have been used since the 1980s, but the Patriot Act expanded the  
kinds of records that could be obtained with an NSL. They do not  
require court approval, and come with a built-in lifetime gag order.  
With an NSL, the FBI need merely assert that the information is  
“relevant” to an investigation, and anyone who gets a national  
security letter is prohibited from disclosing that they’ve received  
the request.

The FBI’s use of NSLs has been sharply criticized. In 2007, a Justice  
Department Inspector General audit found that the FBI, which issued  
almost 200,000 NSLs between 2003 and 2006, had abused its authority  
and misused NSLs.

The inspector general found that the FBI evaded limits on (and  
sometimes illegally issued) NSLs to obtain phone, e-mail and financial  
information on American citizens, and under-reported the use of NSLs  
to Congress.

About 60 percent of a sample of the FBI’s NSLs did not conform to  
Justice Department rules, and another 22 percent possibly violated the  
statute because they made improper requests of businesses or involved  
unauthorized collections of information.

The audit also criticized the FBI for improperly tracking its use of  
NSLs.

Subsequently, the number of NSLs issued in 2007 dramatically dropped  
from 49,000 to 16,000.

The new 2009 DoJ report submitted to Congress last week addresses  
these earlier issues by assuring legislators that the FBI has put in a  
number of corrective actions.

According to the report, the FBI replaced the database it used for  
tracking NSLs, which “has reduced errors in compiling statistics  
necessary for Congressional reporting.”

The report says the FBI also issued a number of “corrective NSLs” to  
“provide legal authority to retain information it had previously  
received” for so-called “exigent” requests and “blanket NSLs”. Exigent  
requests involve an informal emergency request to a business to  
voluntarily hand over information until a more formal NSL can be  
issued to cover the request.

For example, the FBI reviewed the circumstances around more than 4,000  
phone numbers it obtained through NSLs to determine if proper legal  
process was used to obtain them. If the review team couldn’t find  
documentation that proper legal process was followed or if the process  
was insufficient, but the team determined the phone number was  
relevant to a national security investigation, the agency issued a  
corrective NSL for the data. If not, then the agency purged the  
collected data from its database.

The DoJ report to Congress only briefly discusses FISA applications  
for electronic surveillance and physical surveillance related to  
foreign intelligence investigations. According to the document,  
authorities submitted 2,082 so-called “FISA applications” to the  
Foreign Intelligence Surveillance Court last year.

But the court, which evaluates such requests, approved 2,083 FISA  
applications in 2008 — the discrepancy is because two applications  
submitted in 2007 were approved in 2008 and are counted in 2008  
figures. The court rejected one application in 2008 and made  
unspecified “substantive modifications” to two others.

By contrast, in 2007, the court approved 2,370 FISA applications,  
denied three and part of a fourth application, and modified 86  
applications.