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EFF Report: FBI Slowed Terror Investigation with Improper NSL Request

April 15, 2008

EFF Report: FBI Slowed Terror Investigation with Improper NSL Request

Improper NSL Issued Upon the 'Advice and Direction of FBIHQ'

San Francisco - The Electronic Frontier Foundation (EFF) has found that the Federal Bureau of Investigation (FBI), which claims that National Security Letters (NSLs) take too long and that it needs the authority to conduct surveillance without judicial oversight, delayed its own investigation of a student suspected of links to terrorism by employing an improper NSL to seek information on the suspect, at the direction of FBI Headquarters. The FBI failed to report the misuse for almost two years.

EFF's report comes as the House Judiciary Committee prepares for a Tuesday hearing on the misuse of NSLs. The Senate Judiciary Committee will hold another hearing on Wednesday.

"This report raises important questions about the FBI's use of these very powerful investigative tools," said EFF Senior Staff Attorney Kurt Opsahl. "Congress should determine why FBI headquarters insisted on an improper NSL instead of using the appropriate tools, and why the FBI failed to report the misuse for almost two years."

In the report, EFF used documents obtained through a Freedom of Information Act (FOIA) request coupled with public information to detail the bizarre turns in the FBI's investigation of a former North Carolina State University student. Over the span of three days in July of 2005, FBI documents show that the bureau first obtained the educational records of the suspect with a grand jury subpoena. However, at the direction of FBI headquarters, agents returned the records and then requested them again through an improper NSL.

As expanded by the PATRIOT Act, the FBI can use NSLs to get private records about anyone's domestic phone calls, e-mails and financial transactions without any court approval -- as long as it claims the information could be relevant to a terrorism or espionage investigation. However, NSL authority does not allow the government to seek educational records, and the university refused the request. The FBI finally obtained the documents again through a second grand jury subpoena. Later in July of 2005, FBI Director Robert Mueller used the delay in gathering the records as an example of why the FBI needed administrative subpoena power instead of NSLs so investigations could move faster.

"The FBI consistently asks for more power and less outside supervision," said Opsahl. "Yet here the NSL power was misused at the direction of FBI headquarters, and only after review by FBI lawyers. Oversight and legislative reforms are necessary to ensure that these powerful tools are not abused."

Report on the Improper Use of an NSL to NC State University:
http://www.eff.org/issues/foia/report-nsl-ncstate

Key FBI documents:
http://www.eff.org/files/filenode/07656JDB/charlotte.pdf

For more on National Security Letters:
http://www.eff.org/issues/foia/07656JDB

Contact:

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

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