NATIONAL SECURITY LETTERS: BACKGROUND AND ISSUES. VOLUME 2

NATIONAL SECURITY LETTERS: BACKGROUND AND ISSUES. VOLUME 2

CONTENTS

PREFACE

Chapter 1 A REVIEW OF THE FBI’S USE OF NATIONAL SECURITY LETTERS: ASSESSMENT OF CORRECTIVE ACTIONS AND EXAMINATION OF NSL USAGE IN 2006

LIST OF ACRONYMS

1. INTRODUCTION

I. Provisions of the Patriot Act and Patriot Reauthorization Act

II. Methodology of the OIG Review

III. Organization of the Report

IV. Summary of OIG Findings

2. STATUS OF THE FBI’S AND DOJ’S CORRECTIVE ACTIONS IN RESPONSE TO THE OIG'S FIRST NSL REPORT

I. Overview of the FBI’s and Department's Corrective Measures

OIG Findings on the FBI's and Department's Corrective Actions

II. Status of the FBI's Implementation of the OIG's Recommendations in Our First NSL Report

Recommendation No. 1

Recommendation No. 2

Improve the FBI OGC NSL tracking database to ensure that it captures timely, complete, and accurate data on NSLs and NSL requests.

Recommendation No. 3

Recommendation No. 4

Recommendation No. 5

Consider seeking legislative amendment to the Electronic Communications Privacy Act to define the phrase "telephone toll billing records information."

Recommendation No. 6

Consider measures that would enable FBI agents and analysts to (a) label or tag their use of information derived from national security letters in analytical intelligence products and (b) identify when and how often information derived from NSLs is provided to law enforcement authorities for use in criminal proceedings.

Recommendation No. 7

Take steps to ensure that the FBI does not improperly issue exigent letters.

Recommendation No. 8

Take steps to ensure that, where appropriate, the FBI makes requests for information in accordance with the requirements of national security letter authorities.

FBI Actions Taken to Address the Recommendation

Recommendation No. 9

Implement measures to ensure that the FBI OGC is consulted about activities undertaken by FBI Headquarters National Security Branch, including its operational support activities, that could generate requests for records from third parties that the FBI is authorized to obtain exclusively though the use of its national security letter authorities.

Recommendation No. 11

Provide guidance and training to Special Agents, Chief Division Counsel, and all FBI officials authorized to sign NSLs on the meaning and application of the Attorney General's Guidelines' proviso calling for use of the "least intrusive collection techniques feasible" to the FBI's use of national security letter authorities.

OIG Conclusions on FBI's Corrective Actions

III. Other Corrective Measures Implemented by the FBI and Other Department Components

A. The FBI's Office of Integrity and Compliance

1. Organization Structure and Operations

2. Risk Assessment Process

3. OIG Analysis

B. National Security Division

1. Office of Intelligence

2. Oversight Section

a. National Security Reviews

b. Reviews of FBI Reports to the IOB

C. National Security Letter Working Group

1. Evaluation of Existing Controls and Guidelines

2. Additional Privacy Enhancements Recommended by the NSL Working Group

a. Financial and Credit Information

b. Electronic Communication Transactional Data

3. Other Enhancements Considered but Not Recommended

4. OIG Analysis of the NSL Working Group's Report and Recommendations

IV. OIG Conclusions and Recommendations

3. THE FBI’S 2007 REVIEWS OF NATIONAL SECURITY LETTERS IN RESPONSE TO THE OIG’S FIRST NSL REPORT

I. The FBI's 2007 Reviews of National Security Letters

A. The FBI's 2007 Field Review of National Security Letters

1. Methodology of the FBI's 2007 Field Review

2. The FBI's Post-Field Work Analysis

3. The FBI's Findings

4. Comparison of Findings in the FBI's 2007 NSL Field Review and the OIG's First NSL Report

B. The FBI's 2007 Headquarters Review of NSLs

1. Background

2. FBI Methodology

3. The FBI's Headquarters Findings

C. The FBI's Review of FCRA NSLs Seeking Consumer Full Credit Reports in Counterintelligence Investigations

1. The OIG's Findings on FCRA NSLs in Our First NSL Report

2. The FBI's 2007 Review of FCRA NSLs

a. Directive to the Field

c. Improper Requests

d. Unauthorized Collections

II. The OIG's Analysis of the FBI's 2007 NSL Reviews

A. The OIG's Verification of the FBI's 2007 Field Review of NSLs

1. The OIG's Methodology

2. Findings of the OIG's Review

2. The OIG's Conclusions Concerning the FBI's FCRA Review

III. OIG Conclusions and Recommendations

4. NATIONAL SECURITY LETTER REQUESTS ISSUED BY THE FBI IN 2006

I. Methodology

II. National Security Letter Requests Issued in 2006

III. Trends in National Security Letter Usage from 2003 through 2006

5. THE EFFECTIVENESS OF NATIONAL SECURITY LETTERS AS AN INVESTIGATIVE TOOL

6. OIG FINDINGS ON THE FBI’S COMPLIANCE WITH THE PATRIOT REAUTHORIZATION ACT’S NON-DISCLOSURE AND CONFIDENTIALITY PROVISIONS

B. The FBI's Implementation of the Patriot Reauthorization Act Non-Disclosure and Confidentiality Requirements

C. Methodology of the OIG Review

1. Random Sample of NSLs Issued after March 9, 2006

2. Other 2006 NSLs Identified during the Review

II. OIG Findings and Analysis

A. NSLs That Invoked Non-Disclosure and Confidentiality Obligations

C. "Blanket" NSLs Issued in 2006

III. OIG Conclusions and Recommendation

7. IMPROPER OR ILLEGAL USE OF NATIONAL SECURITY LETTERS REPORTED BY FBI PERSONNEL IN 2006

I. The FBI Process for Reporting Possible Violations Involving Intelligence Activities in the United States

A. The Process for Reporting Possible Intelligence Violations

B. FBI Guidance on Reporting and Adjudicating Possible Intelligence Violations

1. November 16, 2006, Guidance on Reporting Possible IOB Violations to the FBI OGC

2. November 30, 2006, Guidance to FBI OGC NSLB Attorneys Adjudicating Possible IOB Violations

II. Possible Intelligence Violations Arising from National Security Letters Reported to the FBI OGC in 2006

A. Possible NSL-Related IOB Violations Reported to the IOB in 2006

B. OIG Analysis Regarding Possible NSL-Related IOB Violations Reported to the IOB

C. Possible NSL-Related IOB Violations Not Reported to the IOB in 2006

D. OIG Analysis of Possible NSL-Related IOB Violations Not Reported to the IOB

E. Comparison of Possible NSL-Related IOB Violations Reported to the FBI OGC in 2006 and from 2003 through 2005

III. OIG Conclusions and Recommendations

8. CONCLUSIONS AND RECOMMENDATIONS

UNCLASSIFIED APPENDIX

End Notes

Chapter 2 NATIONAL SECURITY LETTERS: THE NEED FOR GREATER ACCOUNTABILITY AND OVERSIGHT

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN

STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE STATE OF MARYLAND

STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

STATEMENT OF JAMES A. BAKER, FORMER COUNSEL FOR INTELLIGENCE POLICY, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

STATEMENT OF GREGORY T. NOJEIM, DIRECTOR, PROJECT ON FREEDOM, SECURITY & TECHNOLOGY, CENTER FOR DEMOCRACY & TECHNOLOGY, WASHINGTON, D.C.

STATEMENT OF MICHAEL J. WOODS, FORMER CHIEF, NATIONAL SECURITY LAW UNIT, OFFICE OF THE GENERAL COUNSEL, FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, D.C.

CHAPTER SOURCES

INDEX