Former FBI general counsel Valerie Caproni is leaving the FBI and will join the fourth largest defense contractor in the world, Nothrop Grumman Corporation, as vice president and deputy general counsel.

FBI Director Robert Mueller named Ms. Caproni general counsel of the FBI in 2003. In January 2010, the Office of the Inspector General (OIG) published a report on the FBI’s illegal acquisition of the telephone records of individuals living in the US, determining that the FBI engaged in “widespread use of exigent letters and other informal requests for telephone records that did not comply with legal requirements or FBI policies governing acquisition of these records” (page 257).

The FBI used so-called exigent letters to obtain telephone records from communications service providers. Typically, these letters stated that exigent circumstances had prompted the request and that “subpoenas requesting this information have been submitted to the U.S. Attorney’s Office who will process and serve them formally [on the communications service provider] as expeditiously as possible.” Between 2003 and 2006 some 722 exigent letters were issued to three communication service providers.

The OIG investigation found that in some instances FBI agents signed exigent letters knowing that they contained inaccurate statements, or doubting that an emergency actually existed. Further, most of the exigent letters did not include date ranges for the records requested and, remarkably,

The FBI’s use of exigent letters became so casual, routine, and unsupervised that employees of all three communications service providers told us that they—the company employees—sometimes generated the exigent letters for [FBI] personnel to sign and return to them (at page 258).

OIG also found that the FBI obtained records from the communications service providers through other informal methods including requests made by email, face-to-face requests, requests on pieces of paper (including post-it notes), and telephonic requests made without first providing legal process or even exigent letters.

These practices were illegal because

[they] violated FBI guidelines, Department policy, and the Electronic Communications Privacy Act statute. … Some of the most troubling improper requests for telephone records occurred in media leak cases, where the FBI sought and acquired reporters’ telephone toll billing records and calling activity information without following federal regulation or obtaining the required Attorney General approval.

OIG concluded that every level of the FBI, including the Office of the General Counsel, was responsible for these failures.

After a hearing on the report in April 2010, Congressman John Conyers, Jr. stated, “Today’s hearing showed that the FBI broke the law on telephone records privacy and the General Counsel’s Office, headed by Valerie Caproni, sanctioned it.”

Ms. Caproni was scheduled to attend an event held by the Brennan Center for Justice at NYU Law School about FBI abuses, at which BORDC’s Shahid Buttar was also set to speak. She backed out at the last minute and, tellingly, since then has refused to allow DOJ spokespeople speak publicly on the record at events where BORDC also appears.

Now there is unlikely to be any accountability for Ms. Caproni’s egregious violations of the law and individual privacy at the FBI—instead, she’ll be paid handsomely by an enormous government contractor.

On May 26, 2011, Congress voted to reauthorize three provisions of the USA PATRIOT ACT that were set to expire. The most contentious of these provisions is Section 215, which allows the government to more easily gain access to various personal records without clear evidence that the individual in question poses a threat to national security. This provision also places a gag order on anyone whose records have been seized so they can’t talk about what happened.

If the thought of the government accessing your business or medical records, telephone calls, books, diaries, and even your genetic information (go to page 87) isn’t scary enough, the most frightening aspect of this provision is that we don’t know how the government actually interprets and applies it. In part, this is because the Justice Department has refused to reveal the government’s interpretation of Section 215 of the PATRIOT Act.

Prior to Congress’s vote on the reauthorization of the PATRIOT ACT, Senators Ron Wyden and Mark Udall proposed an amendment that would require the US Attorney General to publicly reveal the government’s official interpretation of the PATRIOT ACT. Wyden claims,

“[T]he government is relying on secret interpretations of what the law says without telling the public what those interpretations are… and the reliance on secret interpretations of the law is growing.”

Unfortunately, the proposed amendment failed and the law was reauthorized until 2015.

The government’s refusal to explain, much less meaningfully reform, this provision of the PATRIOT Act is hardly the first time that this piece of legislation has been used to infringe on the rights of people in the United States. The increasing use of national security letters (NSLs) to demand personal records without court approval has resulted in an estimated 6,400 intelligence violations. Some of these violations took the form of exigent letters, which do not exist anywhere in the law, but according to the Inspector General’s investigation, “contained inaccurate statements, circumvented the requirements of the Electronic Communications Privacy Act NSL statute, and violated Attorney General Guidelines and internal FBI policy.”

Despite widespread and well-documented abuses, Congress reauthorized the PATRIOT Act for another four years without any protections for civil liberties. Congress has failed to check and balance the Executive Branch on civil liberties issues, allowing executive secrecy to become entrenched—and this failure has implications far beyond surveillance.  With the Obama administration prosecuting more whistleblowers than all other administrations combined (including some who risked prosecution by exposing important facts about surveillance), Congress’s abandonment of its oversight responsibilities on the PATRIOT Act bodes poorly for the future.

The American Civil Liberties Union (ACLU) has already stated that it will ask the courts to disclose information that Congress wouldn’t. On May 31, the ACLU filed a  Freedom of Information Act (FOIA) request demanding that the government reveal its interpretation of Section 215. Keep checking this blog and the ACLU for updates on that case and other news about the PATRIOT Act and civil liberties.

Much has already been said and written about the three provisions of the USA PATRIOT Act that had been set to expire earlier this year, but were renewed without any new revisions or oversight. As the expiration date for these provisions approached several alternative plans were offered up by lawmakers and civil rights groups alike. On Tuesday, the public was granted a look behind the curtain at one such plan, when Patrick Leahy, Senate Judiciary Committee Chair, released a letter he had written to Attorney General Eric Holder last year. The letter discussed his proposed reforms to the PATRIOT Act provisions set to expire, which included much greater Government oversight. Senator Leahy’s letter made specific reference to the FBI’s abuse of Exigent Letters.

We now know that the National Security Letter authority was significantly misused. That is why I fought hard to retain a sunset for National Security Letters in our legislation, in addition to an audit. It is important that there be increased accountability for this authority.

More oversight. That’s the message we have heard repeatedly from reports issued by various federal agencies. We have seen numerous abuses of the powerful surveillance tools available to law enforcement under the USA PATRIOT Act, and they make us wary of the potential abuses still to come. Fusion centers immediately spring to mind.

On March 19, the Congressional Research Service (CRS) released a report full of suggestions for how the Department of Homeland Security can balance its mission of keeping Americans safe with the need to protect civil liberties. The report took an especially close look at fusion centers, which, while being a valuable resource for law enforcement, also present a major intrusion into personal privacy with their information gathering, storing, and sharing functions. What was their solution to resolve this tension? More oversight.

(more…)

The revelation last week that the FBI nearly routinely broke the Electronic Communications Privacy Act between 2002 and 2006, wiretapping phones on the basis of “emergencies” that didn’t exist, sparked a justified but all too brief flurry of media attention.

By and large, however, the mechanism by which the FBI flouted the law, the issuance of “exigent letters” (aka “post-it note” warrants), has seldom gotten sufficient legal or political scrutiny.

In an important post on the American Constitutional Society blog, Gregory Nojeim, Senior Counsel and Director of the Project on Freedom, Security & Technology at the Center for Democracy & Technology, provides useful context on these self-serving creations of the FBI, and how Congress has failed to stop them.

A national security letter is a simple form document issued by the FBI and other agencies of the government to obtain telephone call records, email to/from information, and other records about communications, as well as financial, credit, and other records, without any prior judicial authorization. NSLs are served on the business entities that hold the records and the businesses that receive NSLs must comply or challenge them in court, and with limited exceptions, are barred from disclosing to anyone that they have received or complied with the demand for records.The Patriot Act removed most of the legal restraints on issuing NSLs, including the requirement that the NSL seek information that pertains to a spy, a terrorist or another agent of a foreign power, and the requirement that agents articulate a factual basis for seeking records with an NSL. But it left in place the very minimal requirement that the NSL be issued only to seek information relevant to an investigation to protect against international terrorism or clandestine intelligence activities. Rather than comply with this minimal requirement, FBI officials issued “exigent letters” to obtain information that should have been sought with NSLs even when no investigation had been opened, and in some cases, even though the information was not sought in an emergency situation. “Exigent letters” were a creation of the FBI and have no basis in law.

Wednesday’s Department of Justice report serves as a reminder of the necessity of an open and accountable federal government.  The report details how the FBI circumvented statutory requirements to obtain the phone records for over 2,000 people, including, journalists for The New York Times, and the Washington Post.

The USA PATRIOT Act has already made it easier for the FBI to obtain phone records through the use of national security letters (NSLs).  The NSLs do not need to show probable cause; they merely need to link to a current investigation.

The FBI then began using “exigent circumstance letters” to further speed up the process.  Using the “exigent letters” the FBI would request records by citing emergency circumstances, without establishing probable cause or a link to a current investigation.  While it is bad enough that this practice was supposed to be vindicated by issuing NSLs after the fact, in some instances NSLs were never issued at all.

Even more concerning are the instances where the FBI acquired phone records without any pretense of legal procedure.  The report reveals that some requests were made simply by asking for the records through phone conversations, emails, or hand-written notes.

One by one, legal safeguards for searches were tossed aside to facilitate intelligence gathering activity.  The fact that several reporters were investigated serves as a stark reminder as to why these safeguards exist in the first place.  In the end these efforts violated civil liberties, wasted the resources of the intelligence community, and embarrassed the FBI.