FISA Court Asked FBI About Illegal Wiretapping

Ryan Singal reports newly declassified documents show that the FISA Court had concerns the FBI was wiretapping innocent Americans:

Does the FBI track cellphone users' physical movements without a warrant? Does the Bureau store recordings of innocent Americans caught up in wiretaps in a searchable database? Does the FBI's wiretap equipment store information like voicemail passwords and bank account numbers without legal authorization to do so?

That's what the nation's Foreign Intelligence Surveillance Court wanted to know, in a series of secret inquiries in 2005 and 2006 into the bureau's counterterrorism electronic surveillance efforts, revealed for the first time in newly declassified documents.

A review of the declassified documents shows: [More...]

Among other things, the declassified documents reveal that lawyers in the FBI's Office of General Counsel and the Justice Department's Office of Intelligence Policy Review queried FBI technology officials in late July 2006 about cellphone tracking. The attorneys asked whether the FBI was obtaining and storing real-time cellphone-location data from carriers under a "pen register" court order that's normally limited to records of who a person called or was called by.

The internal inquiry seems to have preceded, and was likely prompted by, a secret court hearing on the matter days later. Kevin Bankston, a lawyer with Electronic Frontier Foundation, says the documents suggest that the nation's spy court shares the reluctance of federal criminal courts to turn everyday cellphones into tracking devices, in the absence of evidence that the target has done something wrong.

What about those post-call dialed numbers?

Separately, the secret court questioned if the FBI was using pen register orders to collect digits dialed after a call is made, potentially including voicemail passwords and account numbers entered into bank-by-phone applications.

Using a pen register order, the FBI can force a phone company to turn over records of who a person calls, or is called by, simply by asserting the information would be relevant to an investigation. But existing case law holds that those so-called "post-cut-through dialed digits" count as the content of a communication, and thus to collect that information, the FBI would need to get a full-blown wiretapping warrant based on probable cause.

What did the FBI do with the data it collected?

The government is supposed to "minimize" -- that is anonymize or destroy -- information gathered on Americans who aren't the targets of a wiretap, unless that information is crucial to an investigation.

There are no answers here, only more questions.

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  • Display: Sort:
    They asked the wrong question.... (5.00 / 1) (#3)
    by Ben Masel on Thu Jun 12, 2008 at 03:07:51 AM EST
    "whether the FBI was obtaining and storing real-time cellphone-location data"

    The Telco's collect and store the data. the feds don't generally get it in real-time, they just get the back data onvce they'vge developed an interest in you.

    Statutes are currently silent on use of this datafield, lower courts have been all over the place.

    I querried Obama's and McCain's Tech policy surrogates on location tracking at the Conference on Computers, Freedom, and Privacy 3 weeks ago.

    Here's what I liveblogged

    Update 9, My Question
    Cellphone location tracking: should Law enforcement need a warrant?

    Weizner: No position from campaign. Court rulings in different jurisdictions have varied. We should not shut tracking, but need oversight, wait for the courts before legislating.

    Fish, Same.

    I've convinced my House Rep., Tammy Baldwin of the need for clear new statutory protection, and she's on both Committees with jurisdiction, Judiciary and Commerce. Hope to see a draft soon, and hearings this year, to prepare passage early in the next Congress.

    This is terrible too! (none / 0) (#1)
    by phat on Thu Jun 12, 2008 at 02:11:30 AM EST

    More questions... (none / 0) (#2)
    by Edger on Thu Jun 12, 2008 at 02:55:57 AM EST
    The Bush administration was admonished by a senate committee, and a special surveillance court, in two separate instances for repeatedly trying to skirt the law in obtaining top-secret warrants to spy on American citizens suspected of having ties to terrorists. Despite the public rebuke, President Bush circumvented the judicial process and secretly authorized the National Security Agency to spy on thousands of individuals in the United States in defiance of the very court that issued a legal opinion saying the administration was already infringing on civil liberties in other domestic spy cases.

    Securing top-secret surveillance warrants from a special court after 9/11 was proving to be hugely problematic for the Justice Department, and led a senate committee to issue an extraordinary report more than two years ago criticizing federal law enforcement officials for failing to properly follow routine guidelines in their efforts to obtain warrants for eavesdropping on Americans suspected of having ties to terrorists.

    The Senate Judiciary Committee report issued in February 2003 may help explain why President Bush authorized the National Security Agency to spy on Americans without seeking prior approval from the Foreign Intelligence Surveillance Court, which for more than two decades has handled domestic spying activities.

    The report singled out the FBI, and said the bureau's agents, whose job it is to obtain the surveillance warrants from the special court to collect intelligence information in the fight against terrorism, were inadequately trained in important aspects of not only the procedures to obtain warrants to spy on Americans under the Foreign Intelligence Surveillance Act (FISA), "but also fundamental aspects of criminal law."

    Five Year-Old Report Warned White House Domestic Spying Unlawful
    By Jason Leopold, The Public Record, Wednesday, May 21, 2008

    well, it's nice to know someone (none / 0) (#4)
    by cpinva on Thu Jun 12, 2008 at 05:57:24 AM EST
    was at least concerned enough to inquire within, though that clearly hasn't stopped the bush administration from doing whatever it damn well pleases.

    bush makes nixon look like a rank amatuer.