Watching the detectives

In contrast to the FBI's seemingly harmless fumbling of the library provision -- Section 215 -- of the Patriot Act, is its serious misuse of "national security letters." The Patriot Act expanded the power of the FBI to issue these directives which, according to a report, also issued today, can be used "to obtain information from third parties, such as telephone companies, financial institutions, Internet service providers, and consumer credit agencies. In these letters, the FBI can direct third parties to to provide customer account information and transactional records, such as telephone toll billing records." Before the Patriot Act, rather open-ended national security letters could be used only against foreign powers or agents of foreign powers; under the new law, the letters can be issues so long as the words "terrorism" or "espionage" are invoked.

If the FBI's implementation of Section 215 was charmingly incompetent, its use of national security letters indicates that the bureau can be both efficient and abusive when it so chooses. "A Review of the Federal Bureau of Investigation’s Use of National Security Letters" points out that the use of these letters soared from 8,500 in 2000 (before the Patriot Act) to 39,000 in 2003, 56,000 in 2004, and 47,000 in 2005. Each letter may contain more than one request for information, so even those figures understate the matter.

Even worse, the FBI underreports its use of national security letters. Says the report:

Overall, we found approximately 17 percent more national security letters and 22 percent more national security letter requests in the case files we examined in four field offices than were recorded in the OGC database.

The report also found numerous instances in which the letters were recorded as being used against non-Americans, when they were actually targeted at U.S. citizens.

That's especially problematic since the FBI apparently does a bad job of safeguarding the information it gathers with national security letters. The data is routinely shared with United States Attorneys' offices and, even worse, is stored in databases where it is accessible to FBI personnel and Joint Terrorism Task Force Members who have no connection to the cases in question.

At least as worrisome are the overt abuses of the national security letters.

The FBI identified 26 possible violations involving the use of national security letter authorities from 2003 through 2005, of which 19 were reported to the IOB. These 19 involved the issuance of NSLs without proper authorization, improper requests under the statutes cited in the national security letters, and unauthorized collection of telephone or internet e-mail transactional records, including records containing data beyond the time period requested in the national security letters.

Twenty-six incidents out of tens of thousands of uses of national security letters sounds like minimal abuses of the system -- and they would be, if they were a full summation of the problem. But those are only the abuses the FBI found itself -- the report found many more.

[I]n addition to the violations reported by the FBI, we reviewed documents relating to national security letters in a sample of FBI investigative files in four FBI field offices. In our review of 77 FBI investigative files, we found that 17 of these files -- 22 percent -- contained one or more violations relating to national security letters that were not identified by the FBI. ... [W]e believe that a significant number of NSL-related possible violations are not being identified or reported by the FBI.

The report goes on to document "many instances" in which the FBI circumvented even the skeletal requirements for obtaining national security letters in order to obtain billing records and subscriber information from telephone companies. The circumventions took place in non-emergency situations and often involved false claims by the FBI that the bureau had requested subpoenas for the information it sought.

Overall, "A Review of the Federal Bureau of Investigation’s Use of National Security Letters" goes a long way toward dispelling its sister report's image of the FBI as an agency mired in harmless incompetence. Instead, it portrays the bureau as deceitful and abusive in its use of national security letters, and unwilling to abide by even the minimal safeguards that adhere to the use of those letters.