DOJ IG Report Confirms Government Flouted Statutory Requirements of Section 215 for 7 Years

For over a year, Congress has been working on a “reform” to Section 215 that it claims will rein in abusive government spying.

Also for about a year, DOJ’s Inspector General has been trying to release a Report on Section 215 use up to 2009. That investigation first began 1,800 days ago.

DOJ has finally managed to release the report.

It confirms a number of things I have been reporting for years: that the government uses the provision to collect records that have nothing to do with phone records in bulk, the majority of which are now Internet records, definitely including URLs and probably including subject lines.

But the takeaway report is something else I’ve been reporting on for some time.

The government completely blew off a requirement imposed with the 2006 PATRIOT Act Reauthorization that the FBI (which is the only agency that’s supposed to use Section 215) adopt minimization procedures specifically for Section 215. Even after FBI missed its September 2006 deadline by claiming it had Interim Procedures, FISC kept approving Section 215 orders, even including paragraphs that appear in every phone dragnet order claiming the government has met that statutory requirement. A year after DOJ’s Inspector General pointed out FBI was violating the statute, FISC started imposing its own minimization procedures and reporting requirements (though not — as a court operating with more transparency might have done — denying orders). Finally, in March 2013, DOJ adopted minimization procedures (though it did not start actually complying with them until more than four months after Edward Snowden’s leaks focused more attention on bulk 215 orders).

In other words, Congress imposed a mandate designed to protect innocent Americans’ privacy in 2006. And DOJ blew that statutory mandate off for years. And FISC let it do so for years, approving order after order requiring FBI to have fulfilled that mandate. And only after 7 years (and some unexpected transparency) did DOJ start following the law.

These are the people Congress is rushing headlong to provide new authorities (including an Emergency provision that is designed to invite abuse): government agencies who simply refuse to follow Congressional mandates.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

6 replies
  1. phred says:

    Enabled by a court that gives them a wink and a nod, because why the hell not? It’s all sekrit, who’s gonna know? I bet the judges have a good laugh with the IC lawyers that come before them as they all sit around tossing back top shelf scotch with their cocktail weenies.

  2. What Constitution? says:

    Sounds like this demonstrates exactly the kind of constitutional inadequacy the Supreme Court was alluding to in Riley v. California, when it said “the Framers did not fight a revolution for the right to obtain government agency protocols”. The Fourth Amendment says “shall not” and the Fourth Amendment specifically bars “general warrants.”

    Here is how the Executive Branch can be trusted to implement and respect “protocols” in legislation inserted to mollify a docile Congress and be circumvented before secret courts. Here is what “shall not” would have prevented.

  3. edge says:

    It’s beautiful that the first page of the executive summary (page 4 of the pdf) redacts the name of who (besides the FBI) is doing the redacting.

    • wallace says:

      quote”Definition of “US person” is classified and redacted (page 7 of the pdf)”unquote

      Shades of Jefferson !!! First time I ever perceived, as a US citizen..I would be “classified”, notwithstanding redacted. Well..I have news for them. And you.

      In case, you never heard of Paul Andrew Mitchell, Private Attorney General.

      http://www.paulandrewmitchell.com

      You may laugh. But you will NEVER cease to wonder if his logic and legal
      genius aren’t really the answers. BTW..welcome to the rabbit hole. Especially once you get to his legal briefs regarding what I’ve been saying here for two years. The IRS. Col. Fletcher Prouty understood.

  4. wallace says:

    ps. My reference to the rabbit hole is valid. Open up the book of the IRS “regulations” and prove it to yourself. But I warn you. Once you go down the rabbit hole..you will NEVER be the same again. Makes the NSA look like the clowns they are.

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