Did FBI Stall an IG Review of Innocent Americans Sucked Up in the Dragnet?

I mentioned earlier that the FBI withheld information on the Bureau’s use of phone dragnet tippers from DOJ’s Inspector General long enough to make any review unusable for Congress’ consideration before it passed USA F-ReDux.

That’s important because of this passage from the Stellar Wind IG Report.

Another consequence of the Stellar Wind program and the FBI’s approach to assigning leads was that many threat assessments were conducted on individuals located in the United States, including U.S. persons, who were determined not to have any nexus to terrorism or represent a threat to national security.402 These assessments also caused the FBI to collect and retain a significant amount of personal identification about the users of tipped telephone numbers and e-mail addresses. In addition to an individual’s name and home address, such information could include where the person worked, records of foreign travel, and the identity of family members. The results of these threat assessments and the information that was collected generally were reported in communications to FBI Headquarters and uploaded into FBI databases.

The FBI’s collection of U.S. person information in this manner is ongoing under the NSA’s FISA-authorized bulk metadata collection. To the extent leads derived from this program generate results similar to those under Stellar Wind, the FBI will continue to collect and retain a significant amount of information about individuals in the United States, including U.S. persons, that do not have a nexus to terrorism or represent a threat to national security.

We recommend that as part of the [redacted] project, the Justice Department’s National Security Division (NSD), working with the FBI, should collect addresses disseminated to FBI field offices that are assigned as Action leads and that require offices to conduct threat assessments. The information compiled should include whether individuals identified in threat assessments are U.S. or non-U.S. persons and whether the threat assessments led to the opening of preliminary or full national security investigations. With respect to threat assessments that conclude that users of tipped telephone numbers or e-mail addresses are not involved in terrorism and are not threats to national security, the Justice Department should take steps to track the quantity and nature of U.S. person information collected and how the FBI retains and utilizes this information. This will enable the Justice Department and entities with oversight responsibilities, including the OIG and congressional committees, to assess the impact this intelligence program has on the privacy interests of U.S. persons and to consider whether, and for how long, such information should be retained. (PDF 666-7/329-330)

After a preceding section talking about how many of the tippers to FBI — which, after all, may be two hops away from someone of interest — weren’t all that useful, DOJ’s IG (the current IG, Michael Horowitz’s predecessor, Glenn Fine) noted how many Americans with no nexus to terrorism nevertheless have their names, home addresses, workplace, travel records, and family members’ identities collected and stored in an FBI database, potentially for decades. And, we now know, those assessments would include a search for any previously-collected content, which the FBI could read without a warrant.

Fine recommended that FBI begin to track what happens with the Americans sucked up in PATRIOT-authorized dragnets.

But we can be virtually certain FBI chose not to heed that recommendation, because it hasn’t heeded similar recommendations with NSLs, and because FBI refuses to track any of their other FISA-related activities.

And Horowitz has been very disciplined in following up on previous IG recommendations in reports that follow up on like topics, so that is likely one of the things he planned to investigate with his focus on the “receiving, processing, and disseminating [of] leads” from the phone dragnet.

The review will examine the FBI’s procedures for receiving, processing, and disseminating leads the NSA develops from the metadata, as well as any changes that have been made to these procedures over time. The review will also examine how FBI field offices respond to leads and the scope and type of information field offices collect as a result of any investigative activity that is initiated. In addition, the review will examine the role the leads have had in FBI counterterrorism efforts

Frankly, because NSA had to curtail so much of what they were doing with the phone dragnet in 2009, there should be fewer Americans sucked up in the dragnet now then there was when Fine did his Stellar Wind review in 2008-09. Though if FBI continued to require an assessment of every new identifier, it would still result in a lot of innocent Americans having their lives unpacked and stored for 30 years by the FBI.

But those numbers will likely be higher — potentially significantly higher — under USA F-ReDux, because any given query will draw off of more kinds of information. More importantly, FBI is exempted from counting the queries it does on any database of call detail records obtained under the new CDR function.

(C) the number of search terms that included information concerning a United States person that were used to query any database of call detail records obtained through the use of such orders;

[snip]

(A) FEDERAL BUREAU OF INVESTIGATION.—Paragraphs (2)(A), (2)(B), and (5)(C) of subsection (b) shall not apply to information or records held by, or queries conducted by, the Federal Bureau of Investigation.

This strongly suggests the data will come in through the FBI, be treated under FBI’s far more permissive (than NSA’s) minimization procedures, and searched regularly. Which likely means the privacy implications of innocent Americans sucked up into the dragnet will be far worse. And all that’s before any of the analysis NSA will do on these query results.

There was no public consideration of the privacy impact of the innocent Americans sucked in under the CDR function during the USA F-ReDux debate (though I wrote about it repeatedly).

But if DOJ’s IG intended to include past recommendations in its review of what FBI does with the phone dragnet data — which would be utterly consistent with past practice — that’s one of the things this review, the review FBI stalled beyond the point when it could be useful, would have focused on.

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

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 the Guardian, Salon, and the Progressive, 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 and dog in Grand Rapids, MI.

6 replies
  1. wallace says:

    East German Stazi…meet your modern successor. The only thing missing is a swastika on their uniforms.

  2. wallace says:

    I’m positive all the ghosts of soldiers who died in WW11 are wreathing in outrage over the USG spitting on their graves while mocking the values they died protecting. Meanwhile, the ghost of King George lll must be rolling on the floor in gut splitting laughter.

  3. What Constitution? says:

    Kind of makes one wonder what would have happened if this had been the first thing leaked by Snowden.

    J. Edgar would have needed a bigger file cabinet with capabilities like this.

  4. wallace says:

    Meanwhile, BREAKING NEWS. Notwithstanding the FBI stonewalling the IG, all of a sudden, documents have come to light PROVING the FBI stonewalls FOIA requests too. In fact, their “response” is DESIGNED to keep requests at bay. Furthermore, it is telling that these documents, which will be reviewed shortly by the very person who broke the Fast and Furious story, Mike Vanderbough of SipseyStreetIrregulars fame, via a meeting that just happened when Mike stopped on his way home from his 3 appearances at various Gun Rights rallys in Oregon this week, and met with Jesse Trentadue. In case you are unfamiliar with that name, Mr Trentadue has been in a 10 year legal battle with the FBI to prove the FBI murdered his brother, who was being held as a suspect/witness in the Oklahoma bombing event, and died in custody after an alleged viscous assault by one or more FBI agents. Needless to say, that is a monumental story, of which the MSM has been completely abscent on reporting. Absolutely fascinating. Not to mention the court documents.

    quote”One of the folks i stopped to visit with in SLC was Jesse Trentadue and he directed my attention to some documents that are part of the public record that are just stunning. In fact, I have to say that the FBI is now on record — sworn under oath — that their FOIA system is designed to be unresponsive.”unquote

    Mike intends to disclose these documents soon. As he said, this will make Fast and Furious look like a child’s party. I can’t wait for Comey’s head to explode.

    http://sipseystreetirregulars.blogspot.com/2015/06/back-on-line-after-fight-with-google.html

  5. earlofhuntingdon says:

    One would think that failure to cooperate with an IG would permit, nay require, that IG to reach and to disseminate the most negative conclusions possible from such lack of cooperation. Merely calling attention to lack of cooperation, and limiting the consequences to an inability to draw conclusions seems inadequate. Administratively, it should be treated as if it were an obstruction of justice, albeit without the exact same consequences of jail time, loss of licenses to practice law, etc. An analogous situation would be a federal employee’s refusal to be polygraphed, which can lead to job loss and other dire sanctions such as loss of a security clearance.

    Allowing no consequence for such obstruction, on the other hand, would seem to be a moral hazard as dangerous as encouraging illegal conduct among law enforcement personnel armed with physical and digital weapons.

Comments are closed.