In yesterday's Senate Judiciary Hearing, "Oversight of the Federal Bureau of Investigation," FBI Director Robert Mueller testified about the Bureau's desire to extend three expiring provisions of the USA PATRIOT Act PATRIOT Section 215, authorizing secret court orders for the Internet and financial records of innocent Americans; the "lone wolf" wiretapping provision, which unconstitutionally allows foreign intelligence investigators to bypass traditional wiretapping protections and spy on people inside the U.S. who have no link to any foreign organization; and the "John Doe" roving wiretap provision, which allows blank-check wiretapping orders that don't identify the suspect or the particular phone or Internet connections to be tapped.
During the question and answer portion of Mueller's testimony, Senator Grassley asked the FBI Director: have "any of these three provisions been subject to any negative reports of finding abuse?" Mueller responded, "I'm not aware of any." Well, Director Mueller EFF is aware of some.
As part of EFF's FLAG Project, we issued a FOIA request for records of intelligence violations stemming from the FBI's use of the expiring provisions of the PATRIOT Act. In the FBI's response to our request, we uncovered evidence of multiple reports of potential violations (pdf); however, in typical FBI fashion, the reports are almost entirely redacted. As a result, the details of most of the violations remain secret. Nevertheless, by comparing the FBI's response to our PATRIOT Act request with the Bureau's response to another EFF FOIA request, the murky details of at least one potential violation involving PATRIOT provisions became more clear: the FBI, in a case where use of a "John Doe" roving wiretap was authorized, monitored the conversations of "young children" for "approximately" five days.
In documents obtained through EFF's PATRIOT Act request, an email with the subject "IOB database Roving Authority" references "Potential IOB Matter 2005-160," yet all details of the report were redacted.
FBI Email suggests that IOB 2005-160 occurred under the roving wiretap authority
By cross-checking the referenced IOB matter-number with documents from our request for the FBI's Intelligence Oversight Board reports, we were able to locate the full report of the FBI's improper conduct. The report describes the FBI's monitoring of young children for five days, despite the fact that none of the voices being monitored matched the voice or language of the target.
IOB Report 2005-160 describes FBI misconduct in case utilizing "John Doe" roving wiretap
The report concludes that the violation occurred as a result of the FBI's faulty drafting and inadequate review of the wiretap renewal application. The entire IOB report is available here (pdf).
In order to shed light on these violations before Congress rubber-stamps another extension of the expiring PATRIOT Act provisions, EFF has contacted Senators Grassley and Leahy (pdf) and provided the Senators with the redacted versions of these reports. While the FBI may not feel compelled to be forthcoming with EFF and the American public, hopefully the Bureau will feel differently about withholding information from elected officials.
And, while EFF is doing our part, we need your help, too. As Congress debates PATRIOT renewal, politicians need to hear from you. Please take a stand for civil liberties by:
- Contacting the White House during our April 5th call-in day; and
- Sending a message to Congress supporting PATRIOT reform.
When the FBI is monitoring children's phone calls, it's definitely time to rein in the PATRIOT Act.
UPDATE: As security researcher Chris Soghoian reminds us, former Senator Feingold believed that the expiring Section 215 of the PATRIOT Act had also been subject to abuse, based on information he received in classified briefings. At a hearing in 2009, Senator Feingold stated: "I recall during the debate in 2005 that proponents of Section 215 argued that these authorities had never been misused. They cannot make that statement now. They have been misused. I cannot elaborate here. But I recommend that my colleagues seek more information in a classified setting." (at 105).
SECOND UPDATE: Along with Senator Feingold's statements and the FBI's internal reports of possible PATRIOT violations disclosed by EFF, the Department of Justice, Office of Inspector General's 2007 report on the FBI's use of Section 215 Orders found at least two instances of improper use (pgs 41 - 46 of the document). While the details of the potential violations described by Senator Feingold and EFF remain unclear, the OIG report constitutes clear evidence that expiring provisions of the PATRIOT Act have been improperly used.