Jan. 31, 2011 at 3:36 PM ET
UPDATE: More information from EFF.
The FBI may have committed a minimum of 40,000 violations in its intelligence gathering since 9/11, in a report released Monday by the Electronic Frontier Foundation. In analyzing 2,500 pages of documents obtained through the Freedom of Information Act, EFF found that the violations showed a disregard for the privacy of the average citizen, civil liberties and oversight. The EFF report also documents the willingness of private companies to turn over their customers' information to the feds, without "valid legal justification."
"Our hope is that it sheds a little light on the nature and scope of the FBI's intelligence violations since 9/11. The documents we reviewed give the public the clearest look at the violations the FBI has committed and should give everyone pause," said Mark Rumold, a fellow at EFF who works on the FLAG project (FOIA Litigation for Accountable Government).
At the very least, the EFF gives a compelling argument for greater transparency in the intelligence community (though some may say that's an oxymoron in that spy vs. spy world) and more oversight through the Intelligence Oversight Board, an independent, civilian-based panel that reports to the president on the legality of foreign and domestic intelligence ops.
Valerie Caproni, the FBI's general counsel, told The Los Angeles Times, "that most of the FBI's reports to the oversight board were about technical errors that did not add up to misconduct. 'The number of substantive violations of someone's rights is very small and we take them very seriously,' she said.
Caproni said details in the reports couldn't be disclosed for reasons of national security. The Justice Department and the FBI have significantly boosted oversight over national security letters and intelligence warrant applications since 2007, adding layers of auditing and compliance reviews, she said.
"We've fixed the problems that have been identified" on national security letters, she said, "and have put into place processes that should identify any problems that were previously not identified.
Caproni makes it a point to reassure the American public of the FBI's compliance: "Am I confident that, by and large, 99.9% of the time our agents are acting in compliance with the Constitution, the statutes, executive orders and FBI and DOJ policies on civil liberties? I am."
Rumold's reaction to Caproni's statements: "In 2005, when there was an inspector general report, they said the same thing. The guidelines she's talking about were put in place to protect civil liberties, so when the FBI is treating it just as 'technical,' it shows a bigger problem with the FBI's desire to protect civil liberties broadly."
The IOB, formed during the Ford administration, lost a considerable amount of its bite in 2008, when then-President George W. Bush issued an executive order that took away the board's authority to oversee each intelligence agency's general counsel and inspector general. Bush's order also deleted a requirement for a report from each inspector general due every three months. Further taking the legs off the board: no longer could it forward concerns to the Justice Department for a criminal investigation, nor could it notify the president unless all the other department heads weren't getting the job done.
In the EFF report, some credit is given to President Barack Obama for an October 2009 executive order that "largely reversed the changes made to the IOB’s oversight authority, and nine appointments have been made to the larger President’s Intelligence Advisory Board." But that still didn't sit well with the EFF, which stated, "Nevertheless, the White House has not disclosed the composition or membership, if any, of the IOB, which continues to call into question the legitimacy of current intelligence oversight efforts."
The 20-year-old EFF says it "has championed the public interest in every critical battle affecting digital rights," with a great many of those skirmishes fought in court and through the 61,000 people who receive their action alerts and are plugged into their Action Center.
They throw down the gauntlet on the feds in a big beef over these violations, which they've categorized in three groups: "FBI violation of rules governing internal oversight of intelligence investigations; FBI abuse, misuse, or careless use of the Bureau’s National Security Letter authority; and FBI violation of the Constitution, the Foreign Intelligence Surveillance Act, or other laws governing criminal investigations or intelligence gathering activities."
From 2001 to 2008, the FBI frequently and flagrantly violated laws intended to check abusive intelligence investigations of American citizens. While many hoped the era of abusive FBI practices would end with the Bush Administration, there is little evidence that President Obama has taken significant measures to change past intelligence abuses. Two years into his term, the President has not publicly disclosed any appointments to the IOB, and his campaign promise of unprecedented transparency within the executive branch has gone largely unfulfilled — especially within the intelligence community.
In the first grouping, violations included things like the FBI failing to submit notification of the investigation of a U.S. person to FBI Headquarters for three years, to failure to report a violation within 14 days of its discovery and probably most disturbing to the average Joe/Jane: continuing to investigate a person after the authority to do so had expired.
The second grouping is what will might make your blood run cold, as it has to do with the FBI issuing nearly 200,000 National Security Letter requests with almost 60 percent of the 49,425 requests issued in 2006 for investigations of U.S. citizens or legal aliens. If you didn't know this, companies that receive an NSL are under gag orders not to tell you that you're being investigated.
The FBI likely issued approximately 25,000 NSL [National Security Letter] requests for telephone and electronic communications records, 12,500 requests for financial records, and 12,500 requests for credit information annually from 2003 to 2006.
Perhaps most startling, however, was the frequency with which companies receiving NSLs — phone companies, internet providers, banks, or credit bureaus — contributed to the FBI’s NSL abuse. In over half of all NSL violations reviewed by EFF, the private entity receiving the NSL either provided more information than requested or turned over information without receiving a valid legal justification from the FBI. Companies were all too willing to comply with the FBI’s requests, and — in many cases — the Bureau readily incorporated the over-produced information into its investigatory databases.
If you think your information is private and that companies will guard it for you, this report shows that the opposite tends to be true.
The FBI’s abuse of its NSL power has garnered much of the attention in the debate over the FBI’s abusive intelligence practices. What has not received as much attention, however, is the unwillingness of companies and organizations to guard their clients’ and users’ sensitive, personal information in the face of these NSL requests — whether the request was legally justifiable or not. Undeniably, if the FBI had complied with the law, the vast majority of NSL violations would never have occurred. Nevertheless, many of the businesses and organizations with which Americans trust their most private information are not applying any scrutiny to unjustifiable requests from the FBI and are not responding to valid requests in a responsible manner.
The third category catch-all also attracts the harshest words from EFF. "Violations falling into this third category were consistently the most brazen and egregious violations." To sum it up, the EFF says, the feds submitted false or inaccurate declarations to courts, used improper evidence to obtain federal grand jury subpoenas and accessed password protected documents without a warrant.b
The EFF doesn't want you to just absorb all this info and despair, becoming discouraged and cynical about your own government. They want you to do something about it! They want you, as a voter and actively engaged citizen, to crank it up with your congressional reps and revamp the USA Patriot Act, which is due to expire in late February.
Instead of simply rubber-stamping the intelligence community’s continuing abuse of Americans’ civil liberties, Congress should seize this opportunity to investigate the practices of the FBI and other intelligence agencies, and to demand greater accountability, disclosure, and reporting from these agencies. Until then, the FBI’s pattern of misconduct will undoubtedly continue.
More information on the FBI in these related links: