The Government's Got Your Number

Following up on last week's post on telephone record privacy, there is an article in today's Washington Post entitled FBI Seeks to Pay Telecoms for Data.

The FBI wants to pay the major telecommunications companies to retain their customers' Internet and phone call information for at least two years for the agency's use in counterterrorism investigations and is asking Congress for $5 million a year to defray the cost, according to FBI officials and budget documents.

The FBI would not have direct access to the records. It would need to present a subpoena or an administrative warrant, known as a national security letter, to obtain the information that the companies would keep in a database, officials said. . . .

The idea now [said a government official not authorized to speak publicly about the matter and who spoke on condition of anonymity] is to have the telecom companies create and maintain databases of phone and Internet records so that when they receive a subpoena or national security letter, they can deliver the information expeditiously in electronic form.

ABC News reports civil libertarian responses to the purchase of records.

"The government isn't allowed to warehouse the information, and the companies don't want to, so this creates a business incentive for the companies to warehouse it, so the government can access it later," said Mike German, a policy expert on national security and privacy issues for the American Civil Liberties Union (ACLU).  Before joining the ACLU, German was a veteran FBI undercover counterterrorism agent.

"It sounds like it circumvents the law," said Lisa Graves, a former deputy assistant attorney general at the U.S. Department of Justice. Graves is now with the non-partisan Center for National Security Studies.

A report issued earlier this year by the Department of Justice's Inspector General found that the FBI had previously misused national security letter authorities in the context of telephone privacy:

[O]n over 700 occasions the FBI obtained telephone toll bill records or subscriber information from 3 telephone companies without first issuing [National Security Letters] or grand jury subpoenas. Instead, the FBI issued so-called "exigent letters" signed by FBI Headquarters Counterterrorism Division personnel who were not authorized to sign NSLs.

The letters stated the records were requested due to "exigent circumstances" and that subpoenas requesting the information had been submitted to the U.S. Attorney's Office for processing and service "as expeditiously as possible." However, in most instances there was no documentation associated the requests with pending national security investigations.

In addition . . . many [letters] were not issued in exigent circumstances. . . . Further, in many instances after obtaining such records from the telephone companies, the FBI issued NSLs after the fact to "cover" the information obtained, but these after-the-fact NSLs sometimes were issued many months later. . . .