EFF Receives First Set of FOIA Documents on the FBI's Misuse of National Security Letter Authority

by Marcia Hofmann
Electronic Frontier Foundation
Jul. 11, 2007

EFF has obtained FBI documents showing years of chronic problems with its use of National Security Letters (NSLs). The issue first drew widespread attention four months ago, when the Department of Justice Office of the Inspector General released a report [31M PDF] revealing extensive misuse of NSLs in a sampling of four FBI field offices.

These findings were, unfortunately, not surprising to critics of the Bureau's NSL power. Before the USA PATRIOT Act was passed in 2001, the FBI could unilaterally issue these demands only to obtain the records of suspected terrorists or spies. Under the changes made by the controversial anti-terrorism law, however, the FBI can now use NSLs to get telephone, Internet, financial, credit, and other personal records about anybody -- without any court approval -- as long as it believes the information could be “relevant” to an authorized terrorism or espionage investigation. (The House of Representatives is considering a bill that would add independent oversight to the NSL process, but the legislation hasn't moved since March.)

In the wake of the inspector general's report, EFF filed a Freedom of Information Act lawsuit seeking fundamental information about the FBI's misuse of the NSL authority, and a federal judge recently ordered [PDF] the Bureau to release information responsive to EFF's request on a rolling basis.

On Friday, July 6, the FBI made its first disclosure of 1,138 pages of documents, all of which you can view here. (Please keep in mind that this is the first of many sets of documents we'll be receiving, so this material does not present a complete picture.) Here's what we've spotted that we think is most interesting so far.

More than 350 pages describing investigative missteps that the FBI considered disclosing to the Intelligence Oversight Board, which receives reports on intelligence gathering activities that violate guidelines, laws, or presidential orders. (See Parts 4, 5, and 6 of the FOIA documents, all PDFs.) These pages detail numerous NSL-related blunders -- most often agents making typographical errors that resulted in receipt of information about the wrong people, and ISPs handing over too much (or wrong) data to the FBI. The Bureau usually did not refer these matters to the Intelligence Oversight Board, often chalking them up to administrative errors or third-party mistakes. The FBI also decided against opening internal investigations into many of the incidents.

The FOIA documents show, however, that several cases were forwarded to the Board between April 2005 and February 2007. Attorney General Alberto Gonzales was copied on these referrals, despite congressional testimony in April 2005 that he was unaware of any civil liberties violations arising from the PATRIOT Act, and a March 2007 speech in which he claimed to be “upset” and "concerned" by the inspector general's findings.

Copies of more than 60 "exigent letters" [PDF] sent by FBI headquarters to three telecomunications companies. The inspector general determined that the FBI's use of these short form letters, which cryptically asked for telephone records because of unspecified "exigent circumstances," circumvented the law and violated FBI guidelines and policies.

A government proposal [PDF] to expand the NSL provision of the Electronic Communications Privacy Act written after the inspector general's report was released.

Various model NSLs, which give us a good sense of what the demands look like, and memos providing guidance on proper use of NSL authority. (See Parts 1 and 2 of the FOIA documents, both PDFs.)

Happy reading! Stay tuned for another batch of FOIA documents about NSLs next month.