Once Again, FBI Caught Breaking The Law In Gathering Phone Call Info; But Real Issue Is Why Telcos Let Them

from the surprise-surprise dept

Tue, Jan 19th 2010 11:25am — Mike Masnick

A few years back, we found out that the FBI regularly violated the Patriot Act, issuing "National Security Letters" to access information that they had no right to access. So it should come as no surprise that during that same period, the FBI was also regularly violating the law to get phone call records without following the proper procedures, even beyond the problem with the NSLs. In fact, it appears the FBI may have violated the law in about half of all of these cases. Basically, it sounds like the FBI just went to phone companies, said the magic word ("terrorism!!") and the phone companies just handed over records -- even without using NSLs, but instead using an "exigent circumstances letter," which could be used even more easily than an NSL, but which required an NSL to follow it up eventually. The FBI is now basically admitting to screwing up and that using these "ECLs" without followup NSLs almost certainly violated the Electronic Communications Privacy Act. The FBI's excuse? They're claiming that the process was "good-hearted but not well-thought-out." Doesn't that make you feel better?

The story heads into Keystone Kops territory, as some in the FBI pushed for actually following up the ECLs with real NSLs, but the FBI was pretty slow. Eventually, someone signed a "blanket NSL" supposedly to cover all of the previous ECLs that never had a followup NSL -- except the guy who signed the blanket NSL later claimed that he couldn't recall ever signing anything, and insisted that NSLs should be for specific cases only. Oops.

Of course, lost in all of the attention over the FBI's process is the rather serious unanswered question of why the telcos didn't seem to push back when handed a bogus demand to hand over records that did not match the official process and violated the law. Shouldn't the telcos have some responsibility for actually making sure that a random FBI agent yelling "terrorism" has some sort of official basis to get information out of the them?

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Filed Under: ecpa, exigent circumstances letters, fbi, national security letters, phone records, privacy, surveillance, telcos
Companies: fbi

33 Comments

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yozoo, 19 Jan 2010 @ 11:34am

in a nut shell
"good-hearted but not well-thought-out."

I think this would apply to most things that happened during the Bush administration (if your feeling generous).
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hi all, 19 Jan 2010 @ 11:36am

Federal beureu of Incongruency
cause they know that if they dont
new laws gt made that hastle them even worse
its like the govt being a bully and using and trampling on your rights to do it.
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Tyanna, 19 Jan 2010 @ 11:58am

"Shouldn't the telcos have some responsibility for actually making sure that a random FBI agent yelling "terrorism" has some sort of official basis to get information out of the them?"

If you were the manager on duty when the FBI showed up yelling "terrorism" and looking at you hard...would you have told them no? I doubt it.

Maybe it was hinted that if they said no, that they would be interfering in a terror investigation.

We have become too afraid to object for fear of getting in trouble with the ppl who are charged with keeping us safe. And those same people know it. Doesn't that make you feel safe?
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deadzone (profile), 19 Jan 2010 @ 11:58am

Love it...
Looks like we are starting to see why the Telecos just had to get blanket immunity....
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Anonymoose, 19 Jan 2010 @ 12:08pm

Two words...
immunity.
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Anonymous Coward, 19 Jan 2010 @ 12:16pm

Re: Two words...
Two words...

Counting FAIL!
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Brooks (profile), 19 Jan 2010 @ 12:21pm

Fairly obvious
Of course, lost in all of the attention over the FBI's process is the rather serious unanswered question of why the telcos didn't seem to push back when handed a bogus demand to hand over records that did not match the official process and violated the law.

Is that really an "unanswered question"? Really?

Let's role play: you're a major telco. Billions of dollars in revenue, hundreds of millions to billions in profit. Huge government-imposed barriers to entry. Huge switching costs and high prices, both of which are starting to come under government scrutiny. And practically every one of your users already hates you for poor service and high costs.

Now the government comes along. You're faced with a choice: stand up for your users, who already hate you and probably won't notice anyway, and piss off the government. Or go along with the government and make a tiny percentage of your users slightly more angry.

It's an unanswered question?
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a-dub (profile), 19 Jan 2010 @ 12:27pm

Re:
Actually, yes. When it comes to dealing with a "hard looking fbi agent", you still have to follow procedure. My response to the agent would be, "please have a seat while I call to verify you are who you say you are. And oh is that a warrant...yes, I will need to see that too." Youre not getting into my datacenter unless everything checks out...and then youll be looking over my shoulder as I get whatever it is you need.
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Austin Powers, 19 Jan 2010 @ 12:28pm

Old but true...
Power corrupts...

If there's the slightest chance it will be abused, it WILL be abused. Even if there isn't a chance it will be abused, it will most likely be abused.

This is just ONE aspect of the new powers that are being abused. The problem is, there is very little independant oversight in a timely manner.

What good does this information do us, other than showing us that there is a problem? Nothing. The damage is done.

Without timely review and oversight, this sort of power will ALWAYS be abused.
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Pangolin (profile), 19 Jan 2010 @ 12:34pm

The missing WHY.....
I wonder if perhaps the reason Telco's don't want info released and the Govt is cooperating and this whole fiasco came about is ..... MONEY.

Did the Telco's make a buck selling the government the information?
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Pangolin (profile), 19 Jan 2010 @ 12:36pm

Re: The missing WHY.....
Talking to myself... but I like Brooks' answer better than mine.
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Anonymous Coward, 19 Jan 2010 @ 12:55pm

You dont bite the hand that feeds you. The government gives lots to the telcos (not necessarily the FBI but other parts of gov). Dont want to piss off the folks that grant monopolies.
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Anonymous Coward, 19 Jan 2010 @ 1:19pm

And Junior's legacy marches on......
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Hulser (profile), 19 Jan 2010 @ 1:25pm

Re: Fairly obvious
It's an unanswered question?

You're right. Of course the reason they cooperated is obvious. But this just underscores why they shouldn't have been given immunity. Just because someone in a black suit comes to you and waves a shiny badge in front of your face, it doesn't mean that you should be off the hook. If you're afraid that not cooperating with the one group of the government is going to get you in trouble, then we should have a system in place where you'd be even more afraid you'd get in trouble with another group of the government, namely the judicial branch.
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Anonymous Coward, 19 Jan 2010 @ 1:51pm

Re:
I still don't understand how the village idiot became president. WTF were voters thinking? And twice, blows my mind.
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Arnietech, 19 Jan 2010 @ 2:10pm

Re: Re:
Wait, Obama was only elected once, what are you talking about...
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Anonymous Coward, 19 Jan 2010 @ 2:18pm

Re: Re: Re:
I think it's safe to say that every president has been an idiot.
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BC, 19 Jan 2010 @ 2:19pm

Re: in a nut shell
I'd say it sums up every administration I've lived through.
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BC, 19 Jan 2010 @ 2:21pm

Re: Re:
yes, I'm sure you'd do and say all that... right before they cuff you at gunpoint and haul you to jail.
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DCX2, 19 Jan 2010 @ 3:10pm

Re: in a nut shell
I disagree; I think it was quite well thought out. They intended on allowing these abuses to occur, or they wouldn't have made ECLs and NSLs in the first place.
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yvonne, 19 Jan 2010 @ 3:22pm

Re:
The Law is the Law. The FBI can look at me any way they want.
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Luci, 19 Jan 2010 @ 4:37pm

Re: Re: Re:
Why not? I've done it to the police, before. You think a suit with a gun is going to scare me more than Barney Fife? Probably get the same idiots we got with the cargo plane crash at the hub.
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Anonymous Coward, 19 Jan 2010 @ 4:44pm

Re: Re: Re:
yes, I'm sure you'd do and say all that... right before they cuff you at gunpoint and haul you to jail.

You watch to much TV.
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Luci, 19 Jan 2010 @ 4:47pm

Re: Re: Re:
And your reply shows how Bush got elected.
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BC, 19 Jan 2010 @ 8:53pm

Re: Re: Re: Re:
Sure, sure... if they're already willing to blatantly break the law, I'm sure your imposing character, waving papers and shouting, will be enough to make them back down.
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BC, 19 Jan 2010 @ 8:53pm

Re: Re: Re: Re:
What's "too much"?
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Anonymous Coward, 19 Jan 2010 @ 10:10pm

Why the telcos didn't seem to push back.
It's called "cultivating friends in high places". Sure, it's corrupt. Sure, it's illegal. But who's gonna bust ya, the FBI?
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slander (profile), 20 Jan 2010 @ 12:26am

Re: Re: Re: Re:
Careful--you don't want to strain your knee by jerking too hard...
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slander (profile), 20 Jan 2010 @ 12:29am

Re: Why the telcos didn't seem to push back.
"cultivating friends in high places"
So that's what whoring is called nowadays...
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Thomas (profile), 20 Jan 2010 @ 5:54am

good reason..
for the telcos to not push back; they don't want the FBI or any of the other spooks coming driving up to their houses in black SUVs and dragging them to a quiet place for a civilized discussion about why they should cooperate if they want to see their families again. No one in his right mind is going to push back against organizations that can make you and/or your family disappear without a trace. The FBI is on their side, not your side.
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DG Lewis, 20 Jan 2010 @ 1:45pm

"When it comes to dealing with a "hard looking fbi agent", you still have to follow procedure."

They did follow procedure. The FBI agent had an "exigent circumstances letter," which was treated as a legal authorization equivalent to a subpoena. Whether they were called that or not, the equivalent mechanism has been in place for years. A telco security manager (pre-9/11) described its use to me as, "When a kid's been kidnapped and the FBI needs a wiretap to find him, they'll have an emergency authorization, and we always comply with those."

Sure, the telco could "push back when handed a bogus demand to hand over records that did not match the official process and violated the law." But that wasn't what they got - they got an official demand that matched the official process and was in compliance with the law. The FBI may have been misusing the process, may have ignored the follow-on part of the process, and the law may have been unconstitutional -- but telco security compliance managers aren't constitutional law professors.
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Rooker, 20 Jan 2010 @ 2:32pm

I definitely feel safer
When the TSA strip searches a 70 year old woman and does body cavity searches of her grandchildren, I feel safer.

When a 50-story office tower is evacuated because someone spots a grain of talcum powder on an envelope, I feel safer.

When the Border Patrol operates roadblocks to stop the peace-loving peasants and workers of the United States and demand their identity papers in one of their "constitution-free zones," I feel safer.

The day someone finally decides that the Bill of Rights makes it too difficult to catch terrorists and just suspends it altogether, I will feel much safer.

Just ask the people in North Korea how safe they feel from the possibility of a terrorist attack. Those must be the safest people in the world
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Former consultant, 28 May 2011 @ 5:25am

Re: Fairly obvious
>stand up for your users, who already hate you and probably won't notice anyway.

Naccio complained, but only AFTER his indictment. He was a former AT&T exec who was well trained in their code of conduct. At every one of these companies, there was a human responsible for ensuring that legal processes were followed. Why wouldn't they refer these dubious letters to the legal department for an opinion. There HAS to be a paper trail here.

The best "whistleblower" protection there is, is a free (non-corporate) press, and an informed and active public.

"The price of freedom is eternal vigilance"
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