Reining in Warrantless Searches

It is time for Congress to provide reasonable limits to warrantless FBI searches

Mark Agrast and Peter Swire detail why Congress should provide reasonable limits to warrantless searches by the Federal Bureau of Investigation.

A report today by the Justice Department’s Inspector General detailed dozens of cases in which the Federal Bureau of Investigation misused its authority to conduct searches of telephone, email, and financial records without a court order through the use of so-called National Security Letters, or NSLs. The report gives fresh urgency to longstanding calls for Congress to place stricter limits on such warrantless searches.

NSLs can be a valuable investigative tool in national security cases. But because they allow the FBI to carry out searches without any independent review, they are highly susceptible to abuse. Congress exacerbated the problem in 2001 when it enacted the USA PATRIOT Act.

Before 9/11, the FBI was permitted to issue NSLs only when it could show that the records pertain to a terrorist or spy. Congress relaxed that requirement under section 505 of the PATRIOT Act, which authorized the agency to obtain records pertaining to any person if the records are deemed “relevant to” a national security investigation.

The PATRIOT Act also expanded the number of individuals within the FBI who are authorized to issue NSLs and the kinds of information NSLs can be used to obtain. It is no surprise that these expansive new authorities have dramatically increased the FBI’s use of NSLs.

The Inspector General’s report reveals that the FBI issued 8,500 NSL requests to telephone carriers, Internet providers, and financial institutions in 2000. By 2005, that number had grown to 47,000, for a total of 143,074 NSL requests issued over the three-year period covered in the report.

Unfortunately, the increased use of NSLs has brought with it a troubling pattern of error and abuse. In its review of 293 NSLs issued in 2003-2005, the report found numerous “possible violations” of the Justice Department’s own investigative rules for the use of NSLs, including a number of “serious misuses” of NSL authority. These include instances in which officials issued NSLs without proper authority or documentation; sought and obtained records, such as full credit reports, which cannot lawfully be obtained without a court order; circumvented NSL requirements by citing “exigent circumstances” where none existed; and erroneously collected and retained information on the wrong person.

Of particular concern were numerous possible violations that the Inspector General discovered which had not been identified or reported by the FBI to the Intelligence Oversight Board as required by agency procedures. In its examination of a representative sample of 77 files in four FBI field offices, the Inspector General found that 22 percent of the files contained at least one possible unreported violation.

This led the IG to comment that “our findings suggest that a significant number of NSL-related possible Intelligence Oversight Board violations throughout the FBI have not been identified or reported by FBI personnel.”

While the IG found no evidence of “deliberate attempts to circumvent statutory limitations,” these violations underscore the problems that occur when agency officials are permitted to conduct searches without even minimal checks and balances.

The IG recommended a series of internal steps the FBI should take to prevent similar lapses in the future and ensure that all NSLs comply with the law. Those recommendations are a good place to start. But this episode demonstrates yet again that the Executive Branch cannot be relied upon to police itself.

Congress should act quickly to investigate these abuses and determine whether the internal checks recommended by the IG are sufficient to prevent their recurrence. More fundamentally, Congress should consider carefully whether the PATRIOT Act invited these abuses by going too far in expanding the reach of NSLs.

Congress should consider amending section 505 in at least two respects. First, Congress should strictly limit the use of NSLs to transactional records, such as telephone billing records, subscriber information, travel records, and the names of bank account and credit card holders, while requiring a court order before the government can obtain records of banking activities or credit card transactions.

Second, Congress should reinstate the pre-PATRIOT Act requirement that the government make a determination that the records it is seeking pertain to a suspected terrorist or spy.

These amendments, together with the administrative safeguards recommended by the Inspector General, would go a long way toward ensuring that the government has the authority it needs to conduct effective national security investigations while safeguarding the privacy of innocent Americans.

Mark Agrast is a Senior Fellow at the Center for American Progress. To speak with him, please contact:

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Peter Swire

Senior Fellow