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Review of the Fbi Use of Exigent Letters and Other Requests for Phone Records 2010 Parte

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with persons suspected of leaking classified information to the
reporters.
The exigent letter did not specify the 7-month interval noted in the case
agent's November 5 e-mail, or contain any date restrictions. The exigent letter
also stated that the request was made "due to exigent circumstances" and that
"subpoenas requesting this information have been submitted to the U.S.
Attorney's office who will process and serve them formally on [Company A] as
expeditiously as possible." However, this statement was not accurate. A
subpoena request had not been sent to the U.S. Attorney's Office at the time
the exigent letter was served, or at any time thereafter.
The CAU SSA told us he could not recall why he sent this exigent letter
and acknowledged that the case agent had not asked him to do so. He also
acknowledged that he knew at the time he signed the letter, based on
information previously given to him, that the request included reporters'
numbers. He stated that he "had never even read the content of these [exigent]
letters," but was "just using the standard forms ...." The CAU SSA told us
that he used exigent letters based on the guidance he had received from a
Company A analyst who told him "explicitly that this was the approved process
between the attorneys for [Company Al, as well as, you know, ... the attorneys
for the Bureau." He said that when he was assigned to the CAU, his prior
experience had been working on Columbian drug trafficking and money
laundering and Asian organized crime under the FBI's criminal programs, and
he was not aware of any special policies or approval levels needed to obtain
reporters' toll billing records.
The CAU SSA also said he did not recall the case agent making any
representations about exigent circumstances underlying his inquiry about the
availability of the toll billing records. The CAU SSA told us that he could
imagine circumstances in which the leak of classified information could
present exigent circumstances. 116 He also told us that the case agent's squad
supervisor, who was on the initiating e-mail to the CAU for this request, would
have known from CAU briefings she attended at the
Field Office
that the CAU would be obtaining telephone records before legal process in a
request of this type. However, the case agent told us that he did not tell the
CAU SSA who signed the exigent letter that there were any exigent
circumstances associated with his inquiry. Similarly, the squad supervisor
told us that no one had told her of any exigent circumstances being presented
to the CAU SSA in connection with this request.

116 The SSA stated that he considered the leak of "national defense information" to be
the type of circumstance for which an exigent letter would be appropJ:iate.

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The CAU Intelligence Analyst who had sent the case agent a sample NSL
for toll billing records said he did not recall any conversations with the CAU
SSA about the exigent letter, but he speculated that he probably discussed it
with the CAU SSA. The Intelligence Analyst also told us that he was not aware
in December _
about any special approval requirements for obtaining
reporters' toll billing records and that the case agent's e-mail reference to
obtaining DOJ approval "went over my head." The Intelligence Analyst said
that, in hindsight, he thought he and others in the CAU would have proceeded
differently had they noticed the case agent's reference to getting DOJ approval.
He said he did not recall any discussions at the time about special
requirements for obtaining DOJ approval, although he said that he understood
that the case agent was working with the AUSA and a subpoena was "in the
works."
On December 20, _ , the case agent, not aware that an exigent letter
had been issued by the CAU SSA and following up on his earlier question
whether Company A had the capacity to retrieve the records, sent an e-mail to
the CAU Intelligence Analyst asking if there was "any word on whether calling
activity for the below listed numbers is retrievable? I will advise you as soon as
I get the GJ subpoena from the AUSA on the case." The "below-listed
numbers" was a reference to the 12 numbers contained in the agent's
November 5, _ , e-mail request to the analyst, which was included in the
December 20 e-mail chain.

b.

FBI Obtains Reporters' ToO Billing Records

On approximately December 22, _ , the on-site Company A analyst
provided to the CAU the toll billing records requested in the December 17
exigent letter. The analyst provided records for seven of the eight telephone
numbers associated with reporters or their news organizations' bureaus in
_117

We determined that the Compan~gavethe FBI 22 months of
records for Washington Post reporter _
telephone number, of which
only 38 days fell within the 7-month period of interest initially identified by the
case agent as relevant to the leak investigation. In addition, 22 months of
records were provided to the FBI for the telephone number assigned to the
Washington Post's _
bureau, of which only 20 days fell within the

117 The Company A analyst advised the CAU that Company A had no toll billing records
for the eighth of the re orters' tele hone numbers identified in the e-mail, which the FBI
believed to be used by
_
Company A also produced records for two other telephone numbers specified in the
e-mail that were not associated with reporters.

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7-month period of interest. For the remaining five numbers, none of the
retrieved records provided to the FBI fell within the 7 -month period of
interest.
In total, Company A provided the FBI with toll billing records for 1,627
telephone calls. Of this total, only three calls (.2 percent) fell within the
7-month period of interest!lilli'dentified
b the case agent as relevant to the
investigation (two calls in
records and one call in records of the
Washington Post's bureau in
We determined that CAU personnel uploaded all of the reporters' and
news organizations' records for the 1,627 tele hone calls provided by
Company A into a
database on
December 22,
, where the were available for searching by authorized FBI
and other
personnel. 118
We also determined that on January 5, _ , the CAU Intelligence
Analyst replied to the case agent's December ~ , e-mail asking whether
the toll billing records of interest were retrievable. In his January 5 response,
the Intelligence Analyst forwarded to the c ~ w o CAU "trace reports for
the calling activities associated with your _
target numbers."119 One
of the files attached to the e-mail was titled, "CAU3983FBltollsonly.x1s." The
analyst also stated in the e-mail, "We didn't have any [Company A] data" for
three of the target numbers. The January 5 e-mail also stated that the analyst
would send the "raw data" to the agent when he received the grand jury
subpoena.
We found that both trace reports attached to the CAU analyst's January
5 e-mail contained all of the telephone data acquired by Company A concerning
seven telephone numbers the case agent had identified as belonging to
reporters or media organizations in his original e-mail request of November 5,

118 Our inves~oundthat prior to June 2008 the only FBI personnel who queried.
these records in the _ _ database were the CAU Intelligence Analyst and two FBI
employees who were assigned to the FBI OGC's review team that in 2007 was charged, in
response to the OIG's first NSL report, with analyzing the FBI's basis for acquiring records
through exigent letters and blanket NSLs. As discussed below, the prosecutor, CTD
management, and the FBI OGC were not aware that the FBI had acquired reporters' records
until the OIG informed the FBI General Counsel in June 2008. The administrator of the
_
database also told us that there is no evidence that non-FBI personnel who have
access to the _
database queried these records.
119 "Trace reports" contain the results ofCAU Intelligence Analysts' research on
telephone data.

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. ., and three other numbers. 120 The second trace report contained all of the
telephone data ac uired on the 10 tele hone numbers, as well as available
information in the
database related to 11 of
the 12 telephone numbers listed in the case agent's November 5,
e-mail.
We also found that no grand jury subpoena was issued for these
reporters' records, either before or after the records were produced. In
addition, no Department personnel sought Attorney General approval for
subpoenaing these reporters' records, as required by federal regulations and
Department policy.

c.

AUSA and FBI Field Division Personnel Knowledge
that Reporters' Records Were Obtained

When we interviewed the case agent, his squad supervisor, and the
Field Office Assistant Special Agent in Charge who supervised the
squad conducting the leak investigation, they told us that they were unaware
that CAU personnel had asked Company A to provide the reporters' and news
bureaus'telephone records or that anyone had sent an exigent letter to
Company A for these records.
We asked the case agent about the January 5 e-mail from the CAU
Intelligence Analyst to him forwarding the toll billing records from Company A
and the trace reports on the records. He said that he had not opened the
attachments to this e-mail and had not recognized from the e-mail that the
attachments might have included toll billing records. 121 He told us that he "did
not know exactly what trace reports meant," and that he interpreted another
portion of the e-mail as meaning that the analyst had run the numbers against
previously established databases.
The case agent also told us that he did not open the attachments,
because he "just wanted to make sure that we did not proceed until we had
sent the subpoena," adding, "there is no exigency so I was just content to wait
and see what my deliberations with [the AUSA] would yield." The agent said
that if he had "perceived it at the time as violating DOJ regulations or the law,
[he] would have notified appropriate parties."

120 Nine of these 10 numbers also appeared on the December 17,
Company A.

, exigent letter to

121 The Intelligence Analyst said that the only difference between what he sent with his
January 5 e-mail and the raw data he received from Company A was the formatting of the data.

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The case agent also told us that he never told the CAU SSA or anyone in
his management chain that exigent circumstances existed regarding the need
to obtain the telephone records listed in his November 5 e-mail. He also said
that he had no idea where the CAD SSA obtained the language in the exigent
letter stating that requests for subpoenas had already been submitted to the
U.S. Attorney's Office. He further stated that the only representations he made
to the CAD regarding a subpoena were contained in his e-mails, which stated
that a subpoena was contemplated and would be provided in the future.
The AUSA who directed the leak investigation told us that he did not
know anything about the FBI having obtained any reporters' records in the
investigation until the GIG identified this issue and interviewed him in 2008.
The AUSA also said he did not recall if the case agent had ever sent the
reporters' telephone numbers to the CAU to determine if their records were
available. The AUSA said he did not know that the CAU SSA had sent an
exigent letter to Company A seeking the reporters' and news organizations' toll
billing records, that Company A had provided responsive records, that a CAD
Intelligence Analyst had sent the records and his analysis to the c ~ in
an e-mail, or that the reporters' records had been uploaded into a _
database.

The final e-mail we found relating to the reporters' telephone records was
sent by the case agent to the CAU Intelligence Analyst on March 24,". The
subject line of the e-mail stated, "Importan~estion." The e-mail referenced
the CAU Intelligence Analyst's January 5, _ , e-mail and stated:
I am working closely with the United States Attorney's Office ...
and we are contemplating g e t t i ~subpoena for
certain telephone toll records _
telephone numbers)
that will require special approval from the Department of Justice
before issuance. Before we undertake getting the approval for the
subpoena, the AUSA wants to know with certain whether
telephone toll records for _
tele hone calls can be obtained.

This is a key question for us going forward. [Emphasis in original.]
The Intelligence Analyst replied by e-mail on the same day, stating, "Back
in January I sent you two products which reflected [Company Al toll records on

98

several of the
numbers you had targeted, so we can get the data if
the calls were carried on [Company A] lines." The e-mail also stated that one of
the two reports "was only the [Company A] tollS."122 The Intelligence Analyst
added, "So, basically, you already have the records that we
have."
When we asked the case agent about this e-mail, he told us he did not
recall what his reaction to the e-mail was at the time. When we asked him at
the time of his OIG interview whether, looking at the e-mail, he understood
that the e-mail stated that the analyst had previously sent the agent two
products that reflected Company A toll records, as distinguished from
value-added analysis of existing databases, the agent acknowledged, "that is
what this e-mail says, yeah."
d.

-

FBI Conducts

122 The e-mail stated that "one of the reports was only [Company AI tolls, which you
could use in court, and the other one was an intelligence product with [sic] encompassed
everything in (an
database].

99

The squad supervisor told us that the plan for conducting
_
was discussed with her Division's chain of command and probably
with a Unit Chief in the FBI's Counterintelligence Division at FBI Headquarters.
An e-mail from the Unit Chief to the case a ent and the 5 uad su rvisor on
. noted that the

The case agent's e-mail summarizin

stated that he believed the

classified information.

classified U.S. government information.

100

, this media leak case was transferred from the original
case agent to another FBI Special Agent in the
Field Office. 123
According to the U.S. Attorney's Office in
, the leak
investigation is still open.
3.

FBI Notifies the Reporters That Their Records Were
Obtained

In April 2008, during our investigation of the use of exigent letters, we
discovered the e-mail exchanges described above concerning the reporters' toll
billing records. The following month we determined that the FBI had acquired
the reporters' and news bureaus' toll billing records without any legal process
or Attorney General approval.
In June 2008, the OIG informed the FBI General Counsel and the Acting
Assistant Attorney General in charge of the Department's National Security
Division (NSD) that we had determined that the FBI had requested and
obtained the toll billing records of members of the news media in this leak
investigation without legal process or the required Attorney General approval.
As discussed above, federal regulations also require that the FBI notify
reporters if their toll billing records are subpoenaed without providing required
advance notice. 124
In response to our notifications of these violations, on August 8, 2008,
FBI General Counsel Valerie Caproni wrote letters to the editors of the
Washington Post and The New York Times, and to the reporters whose records
were acquired, stating that the FBI, as part of an authorized FBI investigation,
had obtained the telephone records of reporters and of their bureaus in
125 The letters stated that the OIG had informed the FBI in the course
of its investigation that the FBI had acquired the telephone records in response
to an exigent letter. Additionally, the letter stated that, based on currently
available information, the FBI had made no investigative use of the reporters'
telephone records. The letter noted that while the exigent letter stated that

123

The case agent was later assigned to a second leak investigation described

124

See 28 C.F.R. § SO.10(g)(3).

125

See Valerie Caproni, General Counsel, Federal Bureau of Investigation
Leonard Downie, Executive Editor, Washington Post, and
Bill Keller, Executive Editor, The New York Times, August 8,2008.

below.

Because our investigation of this issue was on-going, the OIG asked the FBI to briefly
defer notification to the reporters and news organizations, from June until August 2008, until
all significant OIG interviews related to this matter had been completed.

101

subpoenas had been requested for the records and would be forthcoming, no
subpoena was ever issued for the reporters' telephone toll billing records. The
letters also stated (and the FBI confirmed to us) that the FBI has purged these
records from FBI databases. 126
However, the FBI did not disclose to the re

4.

OIG Analysis

As discussed above, federal regulation and Department policy requires a
balancing of First Amendment interests and the interests of law enforcement
before issuance of subpoenas for the production of reporters' telephone toll
billing records. The regulation also requires the Department to take reasonable
alternative steps to obtain the records, and if those efforts fail, to request
Attorney General approval before issuing any such subpoena. 127
We determined that the FBI did not comply with these legal
requirements. As detailed above, without any request from the FBI case agent
or anyone in his chain of command and without the knowledge of any
prosecutor, a CAU SSA issued an exigent letter to an on-site Company A
analyst for the telephone toll billing records of Washington Post and New York
Times reporters and their bureaus in _
Company A ~ the
records to the FBI, and the FBI uploaded the records into a _
database without complying with these requirements.
The records remained in that database for over 3 years, unbeknownst to the
prosecutor, CTD management, and FBI OGC attorneys, until OIG investigators
determined that the records had been acquired and notified the FBI General
Counsel. The FBI subsequently purged the records from t h e _
databases and notified the reporters and their news
organizations that their records had been acquired without following required
procedures.
We believe that the actions of the FBI personnel involved in this matter
were negligent in various respects. Moreover, the manner in which the

126 In addition to the letter, Director Mueller called the editors of the two newspapers to
express regret that the FBI agents had not followed ro er rocedures when the sou ht the
re orters'tele hone records.

127

See 28 C.F.R. § 50.10 (2004).

102

reporters' telephone toll records were acquired by the FBI illustrated the
absence of internal controls in the CAU for requesting records from the on-site
communications service providers, the lack of training and guidelines at the
CAU as to what constituted an emergency request, and the use of exigent
letters that contained inaccurate statements.
First, we found that for the purpose of obtaining reporters records, the
CAU SSA issued a factually inaccurate exigent letter without the knowledge or
approval of the case agent or the AUSA. This was a complete breakdown in the
required Department procedures for approving the issuance of grand jury
subpoenas for reporters' toll billing records. Apparently on his own initiative,
the CAU SSA requested these records even though he was not asked to obtain
them - he was only asked to find out
calls
were captured
by the on-site communications providers' systems.

if"

Second, we were troubled by the two inaccurate statements in the
exigent letter, which stated that there were exigent circumstances and that a
request for a grand jury subpoena had been submitted to the U.S. Attorney's
Office. Notwithstanding these assertions of fact, the CAU SSA told us he did
not recall the case agent making any representations about any exigent
circumstances underlying his inquiry about the availability of records, and the
case agent said he made no such representations. The CAU SSA speculated
that he could imagine circumstances in which the leak of classified information
could present exigent circumstances. Such speculation cannot justify
requesting telephone records protected by the ECPA without the required
Attorney General approval and compliance with federal regulation.
Third, we concluded that the case agent should have exercised greater
attention to detail when he received the e-mail from the CAU Intelligence
Analyst that included the toll records of the reporters and U.S. media
organizations. The January 5, _
e-mail sent by the CAU Intelligence
Analyst to the case a ~ d to "two trace reports for the calling activities
associated with your _
target numbers." These were references to the
te~ne numbers the case agent had inquired about in his
November 5, _
e-mail. The attachments to the e-mail contained all of the
telephone data acquired by Company A concerning several of the telephone
numbers the case agent had identified as belonging to reporters or media
organizations in his original e-mail request of November 5, _
The case agent told us that he did not open the attachments to the
January 5 e-mail or realize then that they contained reporters' toll billing
records. He also stated that he interpreted the e-mail as meaning that the
analyst had run the numbers against pre-existing databases. However, the
CAU Intelligence Analyst sent another e-mail to the case agent on March 24,
_
stating that the January 5 e-mail contained "~ts which
reflected [Company A] toll records on several of the _
numbers that

103

you have targeted.· The agent acknowledged to us that this e-mail stated that
the analyst had sent him toll records, as opposed to a value-added analysis,
but he said he did not realize that at the time. We believe that had the agent
exercised more care at the time he received the March 24 e-mail, he would have
realized then that the analyst had sent him reporters' toll records without a
subpoena and without obtaining the required Attorney General approval.
Fourth, in addition to the individual FBI agents' failings in this case, we
believe that this matter demonstrated how the CAU's lax and sloppy practices
led to serious abuse of the FBI's authority to obtain infonnation from the
on-site communications service providers. For example, the exigent letter
issued by the CAU SSA failed to specify any time period for the records
requested. As a result, although the case agent had identified a 7 -month
period as being relevant to the investigation, Company A provided the FBI 22
months of records for a Washington Post reporter, only 38 days of which fell
within the 7-month period. Similarly, Compan~edthe FBI 22 months
of records for the Washington Post's bureau in _ , only 20 days of
which fell within the 7 -month period. For the remaining five telephone
numbers, none of the records given to the FBI included calls made during the
7-month period. Yet, neither the CAU Intelligence Analyst who received the
records from Company A, the case agent who received the records bye-mail,
nor anyone else in the FBI recognized that the FBI had acquired and uploaded
records far outside the time period considered to be relevant to the
investigation.

Furthermore, both the CAU Intelligence Analyst who received the records
and the CAU SSA who signed the exigent letter told us they did not know about
the federal regulation and special approval requirements for obtaining
reporters' toll billing records. This suggests a lack of training and oversight of
the operational support personnel responsible for interacting directly with the
on-site communications service providers. 128

c.

Second Matter
1.

Background

In connection with another media leak investigation a U.S. Attorney's
Office issued grand jury subpoenas to one of the on-site providers for telephone

128

We discuss these training and oversight failures further in Chapter Five of this

report.

104

toll billing records. The subpoena listed various target telephone numbers. As
we describe below, attachments to the sub oenas contained
~~~

th~w~Wh~

resulted in the production of reporters' toll billing records in violation of federal
re~lation and Department policy. However, after service of the subpoenas,
and before looking at the records, the prosecutors realized the error and
impounded the records. Our investigation revealed that reporters' records were
not included in the records that were produced in response to the
subpoenas.
sections describe the circumstances surrounding the
request for a
and the actions taken by the
Department after it realized that this request may have resulted in the receipt
of telephone records of reporters.

2.

The Leak Investigation

Believing that someone may have illegally disclosed information to
reporters, the Department opened a media leak investigation into the matter.
It assigned two federal prosecutors (who we refer to as Prosecutor 1 and
Prosecutor 2) to lead the investigation. These attorneys were assisted by an
AUSA (who we refer to as the local AUSA) from the judicial district where a
grand jury was convened to pursue the investigation, and FBI agents and
Intelligence Analysts. 129
After the leak investigation was opened, the investigative team sought to
obtain records related to various telephone numbers. The FBI case agent
assigned to the investigation told us that he spoke with a CAU SSA about the
investi ative team's interest in obtaining "to-and-from" calls.
for particular telephone numbers. The case
agent told us that the CAU SSA had advised him to contact the on-site
employees of Company A and Company B to obtain the language for the
subpoenas necessary to obtain those calls.
The case agent went to the CAU and met one of the on-site Company A
analysts. The case agent told us that he explained to the Com an A anal st
that "we were focused on to-and-from _
calls
. . for a single target." The case agent said he believed that they "also

129 Pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure, we have excluded
grand jury information, including any identifying details about the leak under investigation,
from this summary of the matter.

105

discussed the fact that there is a media leak case and that ... we are not
getting at reporters' numbers...."
Following the meeting, the case agent sent an e-mail to the Company A
analyst seeking "boiler plate" language he could use in forthcoming subpoenas
related to the leak investigation. Specifically, the case agent's e-mail asked for
"language you like to see in the subpoena to insure that it is as encompassing
as possible."
The case agent told us, and e-mail records confirm, that he received
suggested text for the subpoenas from an on-site Com an A anal st. The
su ested text re uested, amon other things, a
The case agent told us that he recalled
"maybe a quick perusal" of Company A's suggested language, but he said that
there was "nothing about the specific language that I would have remembered
reading. "130
The case agent told us that he merely forwarded the suggested text to
Prosecutor 1 for his consideration and was not "prescribing that that text be
used." However, Prosecutor 1 told us he used that text in typing attachments
to subpoenas to Company A seeking the target telephone numbers' records.
The facsimile cover sheet the case agent used to transmit the suggested
language to Prosecutor 1 stated, "more boiler plate language per discussion
Friday."
Our investigation determined that the case agent, his supervisor, and
Prosecutor 1 knew at the time the subpoenas were issued that the target
numbers had been in telephonic contact during the period specified in the
subpoenas with a reporter who had obtained the leaked information.

130 The case agent stressed that Prosecutors 1 and 2 made it clear to the investigative
team that they were the legal advisors on the investigative team. Therefore, he said, "we never
reviewed draft subpoenas" and "we were not asked to review any language for sufficiency or
adequacy from a legal or investigative perspective. We were merely advised when the subpoena
was ready to be served."

106

the records of reporters who may have
contacted the target numbers. 131
Shortly after receiving the facsimile from the case agent with
Company A's suggested language, Prosecutor 1 drafted and'u sub
attachments. Each sub oena attachment re uested

The subpoenas themselves were initialed by the local AUSA.132 The
subpoenas both stated, "please see attachment," and Prosecutor 1 had notified
the local AUSA bye-mail that Prosecutor 1 would draft the "riders" and add
them after the subpoenas were drafted. 133 The local AUSA stated that these
were the frrst subpoenas he had signed in the investigation. He said at the
time, he did "not know anything" about the reasons for the subpoenas. He told
us that he did not draft the attachments to the subpoenas and that the
attachments were added without his knowledge (after he had initialed the
subpoenas). Prosecutor 1, who drafted the attachments, confirmed that he did
not think the local AUSA would have seen the attachments.
The case agent served the subpoenas, with the attachments, on the
on-site Company A analyst. The case agent told us that he had no discussion
with the on-site Com an A anal st about the meanin o ~
su ested Ian a e
_
before the subpoenas were served.
We received conflicting information about whether the case a ent and
Prosecutor 1 discussed the meaning of the

132 During this leak investigation, the local AUSA was not involved in the day-to-day
work of the investigative team other than being asked to initial grand jury subpoenas.
133 We reviewed two e-mails that the local AUSA received from Prosecutor 1 concerning
procedures to be followed for grand jury subpoenas issued by the media leak investigative
team. Both e-mails stated that Prosecutor 1 would draft and add "riders" or attachments to
the subpoenas after the subpoenas were drafted.

107

language used in the attachment before
the subpoenas were issued.
When we first interviewed Prosecutor 1, he told us that his only
conversation with the case agent about the language in the subpoena
attachment was when he received from the case agent a "muddled" explanation
of what the language meant. Prosecutor 1 told us that the case agent's
explanation was unclear and that, as a result of this confusing e ~ e
onl later realized that he did not accurateI understand what a _
meant. 134
In our second interview of Prosecutor 1, he told us that after he had been
interviewed by the OIG and reviewed relevant handwritten notes, he recalled
more details of his conversation with the case agent, and that this conversation
occurred before the subpoenas were issued. He said he recalled the case agent
informing him that use of the suggested language would obtain the "incoming
and outgoing calls to and from the target number." Prosecutor 1 said he
specifically asked the case agent
whether [Company A's suggested language] would get _
phone records and I recall him specificall assurin me that he had
s oken to eo Ie about this language
and that it was the language ... that
was just necessary to get local incoming and outgoing calls
between the target number and anyone that they called ...
During this second interview, Prosecutor 1 also produced an undated
document, which Prosecutor 1 said was the subpoena attachment he had
typed based on the facsimile he had received from the case agent with the
suggested language from the on-site Company A analyst. 135 The document
contained handwritten notes of Prosecutor 1 stating, "[Case agent] says - it
wouldn't include _
phone record." Prosecutor 1 said he made these
notes shortly after a conversation with the case agent before the subpoenas
were issued and that these notes refreshed his recollection of the conversation
with the case agent.

134

The first interview of Prosecutor 1 was not recorded.

135 Prosecutor 1 was only told in general terms the nature of the first interview and was
not asked to bring relevant documents to the interview. Prosecutor 1 volunteered the
document at the second interview, which was recorded.

108

Prosecutor 1's notes seem to corroborate his assertion that the case
a ent had told him, erroneousl , that the Ian a e in the sub oena referring to
would not
a
generate
records, which would have included the records of
reporters.
The case agent told us that he did not recall any discussion with
Prosecutor 1 or Prosecutor 2 before the subpoenas were issued about the
meaning of the text suggested by the on-site analyst. He said that he never
told any of the prosecutors assigned to this case that the language in the
subpoenas or the attachments would not request telephone records of
reporters. 136 The case agent also said he did not recall ever telling the
prosecutors that Company A told him it was necessary to add the suggested
language to ensure that the FBI obtained the local and long distance calling
activity. He stated that he had forwarded the language provided by an on-site
Company A analyst to Prosecutor 1 "merely for [the attorneys'] consideration"
and was "not prescribing that the text be used."

136 The case agent told us that he was unaware of any other member of the leak team
telling the prosecutors that the language in the subpoenas and accompanying attachments
would not request reporters' records. He also said that he thought it was "very unlikely" that
such a conversation occurred.

109

was incorrect."137 The Special Agent also told us that she recalled describing
to Prosecutor 1 at about this same time. 138
Prosecutor 1 told us that subsequent to this conversation with the
Special Agent, he met with several DOJ attorneys and supervisors in the
Criminal Division to discuss what steps should be taken to address his concern
that reporters' records may have been obtained by the subpoenas. Prosecutor
1 said that all participants agreed that any records obtained in response to the
grand jury subpoenas should be sealed and that the Criminal Division's Office
of Enforcement Operations (OEO) should be consulted on the matter.
Prosecutor 1 and another federal prosecutor spoke to the Criminal
Division's OEO Director about the circumstances surrounding issuance of the
subpoenas. Prosecutor 1 said that the OEO Director concurred that they
should take certain actions (described below) to address the records obtained
in response to the subpoenas.
Prosecutor 1 told us that he went to the case agent and directed the
agent to copy from his computer the telephone records obtained from the
subpoenas and save them to CDs, then delete from his computer's in-box the
e-mail from the on-site Company A analyst to which the records were attached.
The case agent and Prosecutor 1 told us that the case agent deleted the records
from his computer in the presence of Prosecutor 1 and also deleted the items
from his "deleted items" folder. Prosecutor 1 placed the CDs in an envelope
and sealed it. Prosecutor 1 and the case agent each signed and dated the
envelope, and Prosecutor 1 then placed the envelope in a safe at the Criminal
Division. The case agent told us that he did not recall reviewing the records
before they were deleted from his computer. Prosecutor 1 said that the case
agent had assured him that no one had looked at the records.
However, the case agent told us that neither he nor anyone else had
asked the Company A analyst who had sent the records to the case agent to
delete his "sent" e-mail (attaching the records), and they did not know what
CAU personnel had done with the records. They also said they did not inquire
whether the responsive records had been uploaded by CAU personnel into any
FBI or other databases to which FBI personnel had access, as typically occurs
when such records are received by the CAU.

137

After the meetin ,the Special Agent sent Prosecutor 1 by facsimile the
language they had discussed at the meeting.

138 The Special Agent told us that she had learned about Com
resources from an employee of another member of the

110

Based on advice from the OEO Director, the Criminal Division did not
notify the reporters about the subpoenas. According to Prosecutor 1, the OEO
Director told Prosecutor 1 and other Criminal Division attorneys that the
regulation requiring notification to the reporter was not triggered because any
possible collection of the reporters' records was inadvertent and the records
received from Company A were sealed and not reviewed. The OEO Director
also opined that the Attorney General did not have to be notified about the
matter since the records had been impounded and would not be used unless
Attorney General approval was sought.
Prosecutor 1 briefed members of the investigative team that
were prohibited from being used in connection
with the leak investigation. The Assistant Special Agent in Charge of the
Division's counterintelligence squads also sent an e-mail to all FBI personnel
assigned to the investigation directing that the Ian a e su ested b the
on-site Company A analyst referring to
not be used in the leak investigation because it could capture records
_
of reporters. 139
3.

OIG Investigation

During our investigation of exigent letters, the OIG interviewed
Prosecutor 1 about another media leak investi ation that we describe in the
next section, and we learned about the
_
grand subpoenas issued to Company A in this case.
We then informed Criminal Division officials that we believed that it
should be determined whether the records Company A had provided to the FBI
actually included any reporters' records. However, Criminal Division officials
did not believe that any of the responsive records they had sequestered should
be unsealed or reviewed.
We therefore suggested that, without examining the electronic or hard
copy records that the Criminal Division had sequestered, the OIG and the
Criminal Division should .oint! determine whether Company A had provided
any
records in response to the subpoenas
because if all the
records were provided, they would contain
the records of reporters.

139 Prosecutor 1 told us that he and others also reviewed all grand jury subpoenas
issued by the investi ative team and determined that they had issued no other subpoenas
requesting

111

We then determined that Company A gave CAD personnel responsive
records within approximately 1 week of service of the subpoenas and that an
on-site Company A analyst e-mailed the records to the case agent. We asked
the administrator of the
database to identify
any records uploaded in response to the SUbpoenas. With the database
administrator's assistance, we determined that toll billing records on the target
numbers listed in the subpoenas were uploaded into the database. However,
we found no evidence that the FBI received or u loaded an
telephone records
We also found no evidence that re
in response to the
during the time period specified in the sub oenas and
the fact that the Department had issued subpoenas for
records for this time period that would have included reporters' records,
_
the OIG also raised with the Criminal Division and other Department officials
the question whether notification of the reporters was required under 28 C.F.R.
§ 50.10(g)(3). As described above, that regulation requires that if telephone toll
billing records of reporters are subpoenaed without the required advance
notice, the affected reporter must be notified "as soon thereafter as it is
determined that such notification will no longer pose a ... substantial threat to
the integrity of the investigation" and, in any event, within 45 days of any
return in response to the subpoena. 141
The Criminal Division and the OIG asked the Department's Office of
Legal Counsel (OLC) to opine on the question when the notification provision in
the regulation would be triggered. OLC concluded in an informal wri~ten
opinion dated January 15, 2009, that the notification requirement would be
triggered if, using an "objective" standard and
based on the totality of the circumstances, a reasonable
Department of Justice official responsible for reviewing and
approving such subpoenas would understand the language of the
subpoenas to call for the production of the reporters' telephone toll

141

28 C.F.R. § SO.lO(g)(3).

112

numbers, the subpoenas would be subject to the notification
requirement of subsection (g)(3L regardless of the subjective intent
of the individuals who prepared them.
The OLC opinion also concluded that the notification requirement would be
triggered even if reporters' toll billing records were not in fact collected in
response to such a subpoena.
Based on the OLC opinion, the Criminal Division concluded that it was
not required to notify the reporters because it believed that neither Prosecutor
1 nor the case agent understood at the time the subpoenas were issued that
the subpoenas called for reporters' records.
4.

OIG Analysis

If Company A had in fact produced the

records as requested in the grand jury subpoenas, responsive records would
have included reporters' toll billing records. Because Company A did not
produce all records requested by the subpoenas, the reporters' records were
not provided. However. we believe that the way in which the Department
drafted and issued the subpoenas was deficient and troubling for several
reasons.
First, the FBI agent provided, and Prosecutor 1 drafted and approved,
language in the subpoena attachments that neither the FBI agent nor
Prosecutor 1 correctly understood. Prosecutor 1 said he relied on the case
a ent's ex lanation of the phrase
The case agent told us he did not recall having a
conversation with any prosecutor about what the language meant. and that he
did not tell any of the prosecutors that the language would not request
reporters' telephone records. The case agent also said that he expected
Prosecutor 1 to perform any legal analysis of the language.
In addition, the local AUSA initialed the grand jury subpoenas without
reviewing the attachments, which were prepared by Prosecutor 1 and attached
after the local AUSA initialed the subpoenas. We believe the Department
should ensure that the reviews by prosecutors who are asked to approve grand
jury subpoenas are meaningful and complete. That did not happen with
respect to these grand jury subpoenas and their attachments.
Second, our investigation found that but for the conversation about
Company A's capabilities between a field division S ecial Agent assigned to a
counterintelligence squad and an
employee. FBI and
Criminal Division attorneys would likely not have learned about the problems
with the language in the grand'u sub oenas. Once the Special Agent
explained to Prosecutor 1 what
meant, Prosecutor 1
took several appropriate steps in alerting Criminal Division supervisors to the

113

potential problem with the subpoenas. We believe that the actions
subsequently taken by the Criminal Division in consulting with the OEO
Director and sequestering the responsive records were reasonable corrective
measures.
However, the Criminal Division did not evaluate what steps should be
taken to address the e-mail sent by the on-site Company A analyst to the
Intelligence Analyst or others, attaching the records. We believe that in
addition to the steps described above, the Criminal Division should have
ensured that all copies of the records were permanently deleted from FBI
e-mails, share drives, servers, or other electronic records.
Our investigation did not find that FBI personnel or Department
attorneys intended to obtain reporters' records. Nonetheless, had Company A's
analyst provided all the records requested in .the subpoenas, the records would
have included reporters' toll billing records since there was telephonic contact
between the target telephone numbers and reporters during the period
specified in the subpoenas.
Applying the standard articulated by the OLC for when reporters must be
notified that their records were subpoenaed, we concluded that the Criminal
Division's decision not to notify the reporters was reasonable. Given the
technical terms used in the subpoenas, we did not find thafa reasonable
Department of Justice official would understand the language of the subpoenas
to call for the production of reporters' toll billing records. We therefore agree,
based on the objective standard articulated by the OLC, that the Department
was not required to notify the reporters pursuant to 28 C.F.R. § 50.10(g)(3) that
they were not afforded advance notice of the subpoenas. We also note that the
Criminal Division informed the Court that had empanelled the grand jury of
the subpoenas and the corrective actions it had taken, which we believe was an
appropriate step to take.
As discussed further in Chapter Six of this report, we recommend that
the FBI provide periodic guidance to FBI personnel on the special regulations
and policies governing subpoenas for reporter's toll billing records.
D.

Third Matter
1.

Background

In an investigation of a third media leak matter, aU .S. Attorney's Office
issued a grand jury subpoena to Company A for telephone records. In addition
to providing records in response to the subpoena, an on-site C o m ~
analyst, without any request from the FBI (or any legal process), _
for
records of telephone calls of a cellular phone used by a reporter, and provided
information about his _
of the reporter's records to the FBI in the absence
of legal authority to do so. Also, at the request of a CAU supervisor but

114

without legal process, Company B and Company C employees _
their
databases for the telephone records of the reporter's cellular phone calling
activity. 142

2.

The Leak Investigation (U)

An FBI Special Agent participated in an interview of a witness relating to
the potential leak of information to a reporter. Based on information that was
provided by the witness, the Special Agent sought additional information from
the on-site analyst from Company A.

a.

The Subpoena for

The Special Agent served a grand jury sub
Company A analyst for the toll billing records of
To
generate the subpoena, the Special Agent had faxed a subpoena request form
to an administrative support employee in a U.S. Attorney's Office who was
responsible for preparing subpoenas for a related investigation. 143 The Special
Agent's subpoena request stated that a prosecutor assigned to the investigation
would draft the attachment to the subpoena. The Special Agent noted on the
facsimile cover sheet accom an ing the subpoena request form, "We need
Company A
uest, the subpoena, on its face, requested_
The subpoena contained no limiting
date range.
The Special Agent served the subpoena by facsimile on an on-site
Company A analyst. A cover letter addressed to Company A that accompanied
the subpoena was signed by a prosecutor in the U.S. Attorney's Office, but the
subpoena itself did not bear his signature or initials.
The Special Agent told us that he was "probably directed" to request the
subpoena by his supervisor or one of the prosecutors associated with the
related investigation. However, the prosecutors and the Special Agent's
supervisor told us they did not recall approving the subpoena or discussing it
with the Special Agent. The prosecutors said they did not know how the
subpoena came to be issued.

142 As with the second matter, pursuant to Rule 6(e) we have excluded grand jury
information, including any identifying details about the leak under investigation, from this
summary.
143 The Special Agent who made the subpoena request was not assigned to the related
investigation.

115

The copy of the subpoena and related documents provided to us by
an A contained an attachment re uestin ,amon other information, a
This request, if filled, would result in the
rovision to the FBI of the tele hone records of
However, we do not believe the attachment
to the subpoena was included in the material faxed to the Company A
employee. We noted that the subpoena, the cover letter, and the return of
service all included header information listing the date, time, and telephone
number from which they were faxed. The attachment did not include any
corresponding information indicating that it had been faxed. In addition, the
subpoena itself did not indicate it contained an attachment. 144 Further, copies
of the subpoena maintained in the files of the prosecutors and the U.S.
Attorney's Office did not contain this attachment.
When we showed the prosecutors the attachment that was in the on-site
provider's files, they said they did not recall ever seeing this type of attachment
in their grand jury investigation or any other investigations. Moreover, the
Special Agent told us that he would not have prepared the attachment and that
he did not recall previously seeing the attachment. We believe that the
Company A employee may have obtained the attachment from CAU personnel
or from the CAU share drive. The CAU share drive, which was accessible by all
CAU personnel and the on-site providers, included a boilerplate attachment
that was nearly identical to the one Company A provided to us with the
subpoena. The attachment on the share drive had been approved by the FBI
OGC National Security Law Branch and included with numerous NSLs and
grand jury subpoenas.

b.

Company A _
Activity

Cellular Phone Calling

After the subpoena was served, the Special Agent sent an e-mail to the
on-site Company A analyst that included the name and cellular phone number
of a reporter, facts explaining the relevance of calling activity by the reporter to
the investigation, and information indicatin that the cellular phone number of
the reporter was in contact
of the subpoena during a
particular period.
The Special Agent told us that he provided the cellular phone number of
the reporter to the Company A analyst because the analyst "asked for" it and

144 The subpoena did not state "see attachment" and the box on the face of the
subpoena for "additional information" was not checked.

116

required. 146
The Company A analyst reviewed the
and concluded that they did not include calling activity between the
and the reporter's cellular phone number. Before informing
the Special Agent of that conclusion, the Company A analyst asked the Special
Agent to provide the s ecific date that the Special Agent believed the reporter
had called
The Special Agent responded with a date
range.
Then, without~estfrom the FBI (or any legal process), the
Company A analyst _
Company A's database and downloaded records
for the reporter's cellular phone number and informed the Special Agent by
e-mail that there was no calling activity between t h e . telephone numbers
during the specified date range. The Company A analyst told us that he did
not print out the downloaded records since he did not find the sus ected
calling activity between the reporter
We
found no evidence that the analyst informed the Special Agent or others in the
FBI that he had _
the Company A database for calling activity of the
reporter.
The Special Agent told us that he had not asked the Company A analyst
to _
records of the reporter's calling activity and was not told of the
_ _He also said he understood that absent a grand jury subpoena,
reporter's telephone records could not be _
and that "we were not
asking for [a reporter's] records here." The Special Agent said that if the
Com an A analyst had found records of calls between the reporter _
he would have told the anal st," w e have ot to sto at that.

117

The Company A analyst who
the
ful to have the re orter's telephone number prior to
the records
listed in the subpoena so that he could "give
to whether we had the data or not."
[the case agent] an answer really qUic!iias
The analyst also told us that after he
the _
records and did not
discover telephone contact between the
and the reporter, he was
concerned that he had missed the telephone call. He said that he therefore
the provider's database for calling activity by the reporter to
determine whether there was any activity between the reporter
_ 1 4 7 The analyst told us, "The only way to make sure that I did not
mess up was to take a look at the records for [the reporter's] number ...."
The Company A analyst told us that if the Special ~ not given
him the reporter's telephone number, he would not have _
those
records. However, he also said he had no reason to believe that the Special
Agent knew he had
the reporter's telephone number.
The Company A analyst e-mailed a •
chart with the analyst's calling
circle
to the Special Agent. This chart was attached to an e-mail that
included multiple e-mails between the Company A analyst and the Special
Agent in which the S ecial A ent had rovided facts about suspected contact
between the reporter
the reporter's cellular phone
number, the time frame of the suspected contact, and the Company A analyst's
notification to the Special Agent that records were not located during the
specified period. The CAD Primary Relief Supervisor was copied on this
e-mail.
The Special Agent's supervisor said he did not know the Special Agent
had provided the reporter's cellular phone number to the Company A analyst.
The supervisor also said he did not recall learning from the Special Agent or
anyone else that the analyst had _
the records of the reporter's cellular
phone number.
The CAD Primary Relief Su ervisor said he did not know that the
Company A analyst had
for telephone calls made by the reporter.
Yet, the CAD Primary Relief Supervisor had received the e-mail with the
chart described above that provided all these facts. The CAD Primary Relief

The Com an A anal st explained why reviewing
calling activity records
might not disclose calling activity between the reporter
However, by reviewing calling activity records of the reporter's
telephone number, the Company A analyst said, he could be certain to capture telephonic
contact between t h e . numbers.
147

118

Supervisor also said he was not sure if a grand jury subpoena could be used
for such records and did not know what the process was to get a grand jury
subpoena for such records in conjunction with the U.S. Attorney's
Office.

c.

Company B and Company C Also _
the
Reporter's Cellular Phone Calling Activity

We determined that the Company A analyst who had _
for
telephone calls made by a reporter sent an e-mail to the CAU Primary Relief
~ e subject line, "Requested Information." The e-mail listed
_
the reporter's cellular phone number, and a 3-day date
range.
Company B records show that 2 minutes after this e-mail was sent, the
on-site Company B employee _
Company B's records for calling activity
by the reporter's cellular phone number for a date range 1 day before and 1 day
after the 3-day period identified in the Company A an~mail. Two
minutes after that _
th~oyee _
Company B's
records for calling activity by _
for the same period. Based on
these e-mail records and other documents we reviewed, we believe that the
Primary Relief Supervisor asked Company B to _
its records for this
purpose.
A Company B attorney told us that the Company B _
of the
reporter's calling activity found responsive records although the on-site
Company B employee did not recall whether he provided any information about
the records to the FBI. However, in response to our ~ t to determine
whether records from Company B responsive to this _
were uploaded into
FBI databases, the FBI database administrator told us that he did not find any
evidence of such records.
According to an entry in the Company C employee's log, 2 days later the
CAU Primary Relief Supervisor asked the on-site Company C employee to
~ r d s of calls by both the reporter's cellular phone number _
_
for the same 3-day period previously identified to the on-site
Company A analyst. The Company C employee's log indicates that the CAU
Primary Relief Supervisor told him the telephone numbers pertained to a leak
case. The Com an C em 10 ee _
Company C's database for calling
activity
and the reporter's cellular phone number, but did
not identify any responsive records.
The CAU Primary Relief Supervisor told us he did not recall interacting
with the Company C employee on this investigation, but that it was "possible"
he conveyed a request to the Company C employee to _
the records shown
in the log. He added that he could not recall "when or why" he would have

119

made the request but he did not think the Company C employee would write
his name in the Company C log "without having some justification."
The Special Agent told us that he did not ask the CAU Prim~ef
Supervisor or the on-site Company B or Company C employees to _
for
the reporter's calling activity in their databases, and we found no evidence that
employees of Company B or Company C, or anyone in the CAU, informed the
Special Agent that they had done so.
3.

OIG Analysis

subpoena to
that a
A's file had an

Company A would likely have produced
calling activity information of the reporter in response to the subpoena. This
subpoena was issued without the required Attorney General approval or
compliance with Department regulations governing the acquisition of reporters'
toll billing records.
We also determined that the grand jury subpoena to Company A was
issued without substantive review by a prosecutor. The subpoena cover letter
was signed by an Assistant United States Attorney (AUSA), but the subpoena
itself was not initialed by that AUSA or an rosecutor , and the AUSA said he
did not recall focusing on
Further, although the subpoena request form that the Special
Agent faxed to the U.S. Attorney's Office stated that a prosecutor assigned to
the investigation would draft the attachment, we do not believe any of the
prosecutors drafted, reviewed, or approved the attachment. 148
In addition, we found that the on-site employee of Company A _
Company A's database for records of cellular phone calling activity by the

148 As noted above, while the copy of the subpoena maintained in the prosecutors' mes
had no attachment, the sub oena that was found in Com an A's mes had an attachment that
requested a
However, the
attachment in Company A's files did not bear a facsimile header indicating that it was faxed to
the provider along with the subpoena. Further, the subpoena itself did not include the words
"see attachment," or otherwise indicate that there was an attachment. No one from the FBI or
the Department could explain to us when or how the attachment was appended to the
subpoena.

120

reporter. The evidence indicates that the Company A analyst _
the
database on his own initiative after the FBI Special Agent provided detailed
information to him about the investi ation and the dates of possible contacts

between the reporter
listed in the grand jury
~ena. The Company A analyst then provided information about the
_
to the FBI in the absence of legal authority to do so.
We determined that Company B and Company C also _
their
respective databases for records of cellular phone calling activity by the
reporter's cellular phone number. They did so after the Company A analyst
ave the CAU Prim
Relief Supervisor the reporter's cellular phone number.
and dates of suspected calling activity between
the
numbers. However, we did not find evidence to conclude that the
Special Agent or any of the prosecutors assigned to the r e l a ~ n
asked the on-site communications services providers to do _
or
that they knew that any of the providers' emplo~done so. Rather,
according to the Company C employee's log, he _
the Company C
databases for records related to the reporter's cellular phone number at the
direction of the CAU Primary Relief Supervisor.
We conduded that the CAU Primary Relief Supervisor either directly
asked or'prompted the on-site employees of both Company B and Company C
to _
the calling activity of the reporter without legal process. The CAU
Primary Relief Supervisor told us he was not sure if a grand jury subpoena
could be used to obtain such records and did not know what the process was
for getting such a grand jury subpoena. As noted above in our analysis of the
first leak investigation, we found that the FBI failed to properly train and
provide guidance to CAU personnel about the lawful means to acquire toll
billing records, reporters' toll billing records, and other information from the
on-site employees of Company A, Company B, and Company C.
In sum, we believe that the _
of the reporter's cellular phone
calling activity at the prompting or direction of a CAU Supervisor in this case
were a clear abuse of authority, in violation of the ECPA, federal regulation,
and Department policy. We believe the FBI's actions demonstrated inadequate
training for CAU employees, inadequate controls over the issuance of
subpoenas, and inadequate supervision of CAU personnel by the CAU and CTD
management. As discussed further in Chapter Six of this report, we
recommend that the FBI periodically train FBI personnel and issue periodic
guidance on the special approval requirements for subpoenaing the telephone
toll billing records of news reporters.
We also recommend that the Department determine if, in addition to the
grand jury subpoenas identified in this review, the Department has issued
other g r a n d ~media leak investigations that included a
request for _
community of interest or calling c i r c l e _ .

121

If so, the Department should determine whether at the time the subpoenas

were issued responsible Department personnel were aware of or suspected
contacts between the target numbers in the subpoenas and reporters and
whether the Department obtained the toll billing records of reporters in
compliance with Departmental regulations, including the notification
requirements.

III.

Inaccurate Statements to the Foreign Intelligence Surveillance
Court

As noted in our first NSL report, one of the uses of NSLs is to obtain
evidence to support DOJ applications to the Foreign Intelligence Surveillance
Court (FISA Court) for electronic surveillance, physical searches, or pen
register/trap and trace orders. 149 For example, information obtained in
response to NSLs seeking subscriber information under the ECPA is routinely
used to help establish the required elements for Foreign Intelligence
Surveillance Act (FISA) applications seeking electronic surveillance or pen
register/trap and trace orders on a telephone number.
Based on our concern that the FBI may have used records obtained from
exigent letters and other informal requests to seek such FISA Court orders, we
asked the Department's National Security Division (NSD) to help us determine
whether the Department had sought orders from the FISA Court based on any
information obtained in response to exigent letters or other requests as
described in Chapter Two of this report.
The NSD and the OIG determined that four FISA applications contained
a total of five inaccurate statements. As discussed below, in the small sample
of FISA applications that we reviewed, we found that FBI personnel filed
inaccurate sworn declarations with the FISA Court to the effect that subscriber
or calling activity information was obtained in response to NSLs or a grand jury
subpoena, when in fact the information was obtained by other means, such as
exigent letters.
In our review, we identified a sample of 37 applications to the FISA
Court, which sought FISA electronic surveillance or pen register/trap and trace
orders for 35 unique telephone numbers which were examined by the NSD and
the FBI.lso Our review attempted to determine on what basis the FBI had

149

See OIG, NSL I, 48.

150 These 37 applications were selected for review because they referred to telephone
numbers that either were listed in the 11 blanket NSLs that are described in Chapter Four or
were referred to in CAU e-mails as record requests associated with FISA applications.

122

stated it had acquired information pertaining to the subscribers or other calling
activity information for these telephone numbers.
Specifically, the NSD and the GIG examined the sample of applications to
determine whether they inaccurately stated that NSLs were the source of the
subscriber or calling activity information presented to the FISA Court. lSI In
these 37 applications, the NSD and the GIG identified 4 FBI declarations that
together contained 5 inaccurate statements as to the source of the subscriber
or calling activity information relied upon to support the declarations. The four
declarations containing these inaccurate statements were signed by four
different FBI SSAS.IS2
These four declarations stated that NSLs were the source of the
subscriber or calling activity information, when, in fact, NSLs were not the
source for the information contained in the FISA application. Rather, for two of
these inaccurate statements, exigent letters not NSLs were used to obtain
records that were the sources of the information in the FISA applications. In
another inaccurate statement, the records cited in an application to the FISA
Court were obtained in response to a letter referring to the FBI's emergency
voluntary disclosure authority, not in response to an NSL as the application
stated. In another inaccurate statement, the FBI obtained the information
informally by a verbal request, not in response to an NSL as the application
stated. In another application, the NSD determined that a "trash cover" was
the source of the FBI's information about the subscriber information, not an
NSL as the application stated. IS3
We discuss these four declarations below, describing in more detail the
five inaccurate statements we identified.

151 Applications to the FISA Court for pen register/trap and trace or electronic
surveillance orders typically include declarations signed by FBI personnel stating the basis for
asserting that the telephone number referenced in the application belongs to a particular
subscriber. These declarations are signed under oath.
152 The NSD identified 4 other misstatements in the previously mentioned 37 FISA
declaration,S. These declarations all misstated either the dates of the NSLs seeking subscriber
information or the dates when the FBI obtained responsive records from the providers.
However, in contrast to the five misstatements described in this section, in these four other
instances the statements that the subscriber information had been obtained through NSLs
were accurate. The NSD notified the FISA Court of these inaccuracies in August 2008, calling
the inaccurate dates "non-material" under Rule 10(b) of the FISA Court's Rules of Procedure.
153 A trash cover is the search by law enforcement personnel of trash outside the land
or yard adjoining a house left to be picked up by garbage collectors.

123

A.

FISA Case No. 1

In this case, the Department applied to the FISA Court for a pen
register/trap and trace order in connection with an FBI counterterrorism
investigation. The declaration, signed by an Acting FBI SSA, stated that the
FBI had obtained the subscriber information c~plicationin
response to an NSL served on the carrier. On ~ the FISA
Court approved the application and issued the order for a pen register/trap
and trace device on the subscriber's telephone number.
However, working with the NSD and the FBI, we determined that the only
NSL served on the ~ c r i b e rinformation for this telephone
number was dated _
- 6 weeks after the FISA Court order
was issued. Rather, we determined that the subscriber information on which
the Departm~strelied was obtained in response to an exigent
letter d a t e d _
In August 2008, as a result of our review, the NSD notified the FISA
Court of the inaccurate statement in the declaration, stating that the NSD
considered the statement to be "non-material" for purposes of Rule 10(b) of the
FISA Court Rules of Procedure. 154
B.

FISA Case No. 2

In this case, the Department filed with the FISA Court an emergency
application for an electronic surveillance order on
in
connection with a national security investigation.
The supporting declaration by an FBI SSA stated that the FBI had
verified the subscriber information through information obtained on
in response to an NSL served that day on a carrier. The FISA
Court's order was entered on
155
However, working with the NSD and the FBI, we determined that the only
NSL to the carrier seeking records for this telephone number was dated
- 2 months after the FISA Court order was issued. We found

154 Rule 10(bj of the FISA Court requires the government to report misstatements or
omissions of "material" facts. Neither the FISA Court rules nor the FISA defmes what
constitutes a "material" fact.
155 On
a CAU SSA sent to all three on-site providers an e-mail with
this telephone number and asked them to _
for records. The telephone number was
subsequently included in the Operation Y blanket NSLs, which we describe in Chapter Four of
this report.

124

 

 

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