January 22, 2010 | By Kurt Opsahl

Over Redaction in Audit of FBI’s Use of Illegal Exigent Letters

Earlier this week, the DOJ’s Inspector General issued a heavily redacted report about the FBI’s Communications Analysis Unit (CAU), which found "shocking" violations, including embedded telecom employees providing customer phone records in response to post-it notes.

While the underlying violations are egregious enough, the report itself is problematic because it redacts huge swaths of information that is already publicly known.

As we discussed in our last blog post, the report cryptically refers to AT&T, Verizon and MCI as Company A, B and C. Yet, the source that identified the telecoms embedded with the CAU was none other than FBI General Counsel Valerie Caproni, in sworn testimony before Congress. Moreover, information in the IG report combined with letters to Congress from the telecoms themselves shows that Company A is AT&T.

The IG report also redacts the amount paid to the telecoms when we already know they were paid $1.8 million a year, and that, in 2008, the FBI asked Congress for $5.3 million for further "funding for the telecommunications industry participation in the Telecommunications Data Collection Center (TDCC)."

The IG Report discusses the unlawful use of exigent letters to obtain phone records of Washington Post and New York Times reporters, but redacts the reporters’ names, the year it took place, and the location where the reporters operated. Yet, in 2008, FBI Director Robert Mueller apologized to the newspapers for the incident, and confirmed that the reporters were the Post staff writer Ellen Nakashima and Indonesian researcher Natasha Tampubolon, and New York Times reporters Raymond Bonner and Jane Perlez. These reporters were in the Jakarta bureau, and the incident took place in 2004.

The report reveals that AT&T routinely provided the FBI with the "community of interest" profiles of its customers without any legal process. However, the DOJ redacted a large section of the report that discusses what a "community of interest" is, including an explanatory diagram. Yet, AT&T itself has published several research papers extensively discussing communities of interest. Basically, your community of interest includes the people you call and who call you, and the people with whom this group communicates. It is sometimes refined by frequency or by time period. AT&T even published the Hancock programming language, which AT&T designed to analyze communities of interest, and "sift calling card records, long distance calls, IP addresses and internet traffic dumps, and even track the physical movements of mobile phone customers as their signal moves from cell site to cell site." AT&T published this graphic, which illustrates AT&T using what they call "guilt by association" to determine fraud within a community of interest (the shaded boxes).

Finally, the IG report redacts a new legal theory proferred by the FBI, which purports to allow telecoms to disclose your phone records without legal process or any emergency. While this theory has not been published elsewhere (the Office of Legal Counsel opinion was written earlier this month), controversial legal theories should not be kept secret. Senators Feingold, Durbin and Wyden have asked Attorney General Eric Holder to publish the OLC memo.

We urge the Obama Administration to follow through on its commitment to openness and transparency, and release an unredacted version of the IG report.


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