For 7 Years, FBI Defied Law for Seeking a Person’s Records Under Patriot Act

Screen shot 2015-05-21 at 1.34.18 PM

A Justice Department inspector general’s report shows that for seven years the Federal Bureau of Investigation violated statutory law designed to restrict the agency’s surveillance power. During this period, the agency sought individuals’ records under the business records provision of the PATRIOT Act without adopting proper “minimization procedures” to protect privacy of US persons.

The FBI’s use of orders under Section 215 between 2007 and 2009 was examined by the inspector general. Whether the FBI complied with recommendations the inspector general made back in March 2008.

Section 215 makes it possible for the government to obtain “any tangible things,” such as books, records and other items from a business, organization or entity. They are supposed to be “relevant” to an “authorized investigation to obtain foreign intelligence information not concerning a US person or to protect against international terrorism or clandestine intelligence activities.” But the standard for relevance is very low.

The Section 215 provision is set to expire on June 1, and, as Senator Rand Paul comprehensively outlined while he held the Senate floor for over ten hours, there are many reasons to not reauthorize the provision. This report, which was completed eleven months ago but is dated May 2015, adds substantially to those reasons.

Under the PATRIOT Improvement and Reauthorization Act of 2005, the law required that certain “minimization procedures” be adopted to ensure the handling of US persons’ data was done appropriately. It was not until March 7, 2013, that the Attorney General and the Justice Department officially incorporated these procedures into requests for records. (Marcy Wheeler points out the Justice Department did not actually fully comply with legally required procedures until after NSA whistleblower Edward Snowden disclosed information.)

“The Attorney General’s and the [Justice] Department’s actions came 7 years after such procedures were required by the Reauthorization Act and 5 years after we concluded the interim procedures in 2006 were deficient,” the inspector general’s report [PDF] indicates.

In an understatement, the inspector general declares that the Justice Department “should have met its statutory obligation considerably earlier than March 2013.”

The report suggests that FBI personnel have made “strategic use of the legislative and technological changes by broadening the scope of materials sought in applications. Section 215 authority is not limited to requesting information related to the known subjects of specific underlying investigations. The authority is also used in investigations of groups comprised of unknown members and to obtain information in bulk concerning persons who are not the subjects of or associated with any FBI investigation.”

That seems hugely significant. FBI personnel are permitted to request records of persons who are not subjects of underlying investigations. The FBI uses the PATRIOT Act to request records on people when they do not even have an FBI investigation into those individuals.

FBI personnel with authorized access are apparently permitted to engage in some action involving records, which the Justice Department believes must keep secret. This action is used to determine whether records “reasonably appear to be foreign intelligence information, necessary to understand foreign intelligence information or evidence of a crime.”

National Security Division attorneys in the Justice Department and FBI case agents provided the inspector general with a “range of examples of material that would qualify under this criteria.” It is impossible for the public to know what this means because the Justice Department had it censored in the report.

Another term the FBI has conjured to expand its surveillance powers is “investigative value.” This is a term the inspector general discovered the FBI had introduced for allowing case agents “unconnected with the underlying investigation access to material received in response” to a Section 215 order. However, what “investigative value” means to the FBI and just how it stretches the boundaries of what the agency is authorized to do is anyone’s guess because, again, the agency’s definition is censored in the released report.

The “type of information that is categorized as metadata will likely continue to evolve and expand,” the report acknowledges. The FBI is obtaining “large collections of metadata,” which is data about the records but not the exact content from the records themselves. “Electronic communication transaction information” and two other types of data, which the FBI does not want the public to know about, are being sought through this provision of the PATRIOT Act. (more…)