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

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that the only documentation of a request for these records sent to the carrier
rior to the date of the application was an "exigent situation" letter dated
that was signed by a Special Agent assigned to the FBI office
in
The letter stated that the request was made
pursuant to an emergency situation and that the FBI would provide "required
legal process by the end of the next business day." 156 However, the
subsequent NSL was dated
over 2 months after the FISA
order had been issued.
In August 2008, as a result of this review, the NSD notified the FISA
Court of the inaccurate statement in the declaration, stating that the NSD and
the FBI considered the inaccurate statement to be "non-material" for purposes
of Rule 10(b) of the FISA Court Rules of Procedure."
C.

FISA Case No.3

In this c ~ e n tfiled an emergency application with the
FISA Court on _
for electronic surveillance in connection with a
counterterrorism investigation. The supporting declaration by an FBI SSA
stated that the FBI had verified the subscriber information through information
obtained in r e s ~served on a carrier. The FISA Court's order
was issued o n _
However, working with the NSD and the FBI, we determined that the FBI
had obtained the subscriber information from the carrier, prior to the filing of
the FISA application for electronic surveillance, in response to an FBI field
agent's oral request for telephone records, not in response to an NSL as was
asserted in the application to the FISA Court. FBI records showed that the
NSL s~er information for the telephone number was not drafted
until _
and was served on the carrier on
in
2 weeks after the inaccurate FISA application was filed. On
response to this NSL, the carrier gave the FBI the identical information that
had been described in the declaration supporting the application.
In August 2008, as a result of this review, the NSD notified the FISA
Court of the inaccurate statement in the declaration, stating that the NSD and
the FBI considered the statement to be "non-material" for purposes of Rule
10(b) of the FISA Court Rules of Procedure."

156 The letter was a fonn from the carrier that contained a recital tracking the standard
for emergency voluntary disclosure of non-content telephone records in 18 U.S.C. § 2702(c)(4).
We were unable to detennine the identity of the employee who signed the letter.

125

D.

FISA Case No.4

In this case, the Department filed an emergency application with the
FISA Court for electronic surveillance on four telephone numbers in connection
with a counterterrorism investigation.

First Inaccurate Statement: The supporting declaration by an FBI SSA
stated that the FBI had obtained telephone calling activity information from
records obtained in r ~ e r v e don a carrier. The FISA Court's
order was issued o n _
However, working with the NSD and the FBI, we determined that the only
NSL served on the carrier seeking records on three telephone numbers
c o n n e ~ t h einvestigation referenced in the application was
dated _
the day after the FISA Court had issued its order, and
the only NSL served on the carrier ~ h o n enumber also
connected to the target was dated
2 months after the FISA
Court issued its order. We determined that the calling activity information on
which the Department relied in its FISA Court a p ~ n e din
response to an exigent letter to the carrier dated _
In November 2008, as a result of this review, the NSD notified the FISA
Court of the inaccurate statement in the declaration, noting that the NSD and
the FBI considered the statement to be "non-material for purposes of Rule 10(b)
of the FISA Court Rules of Procedure.»

Second Inaccurate statement: The declaration in this application
inaccurately stated that pursuant to a grand jury subpoena the FBI had
received records from a communications carrier on an unspecified date
confirming subscriber information for two telephone numbers. In response to .
~iry, the FBI located a grand jury subpoena to the carrier dated _
_ _ for one of the telephone numbers, but said that neither the FBI nor
the pertinent U.S. Attorney's Office could locate any grand jury subpoena for
the second telephone number. IS7 However, the declaration also stated that the

157 The declaration also stated that the FBI had received subscriber information on an
unspecified date for two of the four telephone numbers discussed in Case No.4 above from a
carrier, but did not specify the legal process or other basis for this assertion. We found that
the FBI served an exigent letter on the carrier dated
seeking records for the
four tele hone numbers discussed above in Case No.4, including a request for a
community of interest
for a 24-month period. The only NSL or other
rocess we identified that was served on the carrier for this information was an NSL dated
seekin toll billing records and subscriber information, and included a
community of interest _
for two of the four telephone

126

FBI had obtained subscriber infonnation for the second telephone number (the
one for which a grand jury subpoena could not be located) from a trash
cover.
In November 2008, as a result of this review, the NSD notified the FISA
Court of the inaccurate statement in the declaration regarding the second
telephone number, stating that the NSD and the FBI considered the statement
to be "non-material" for purposes of Rule lO(b) of the FISA Court Rules of
Procedure."
E.

OIG Analysis

Based on our concern that the FBI may have used records obtained from
exigent letters and other infonnal methods to seek FISA Court orders, we
examined a small sample of the FISA Court applications that referred to
telephone numbers for which records had been requested from the on-site
communications service providers. Our investigation showed that FBI
personnel had filed inaccurate sworn declarations with the FISA Court about
the source of subscriber or calling activity infonnation referenced in
applications seeking electronic surveillance or pen register/trap and trace
orders. While the declarations signed by 4 FBI SSAs in the 37 applications the
NSD and the FBI reviewed stated that the information relied upon in seeking
Court orders had been obtained in response to NSLs or a grand jury subpoena,
in fact the infonnation was obtained in response to exigent letters, an
emergency disclosure letter, and a verbal request to the communications
service providers. ISS Moreover, as detailed above, several of the NSLs referred
to in the four applications were served at least 2 months after the FISA Court
issued the requested orders. (VI
The NSD asserted that the inaccurate statements made in these FBI
declarations were non-material because there is no exclusionaI)' rule for
statutory violations of the ECPA.IS9

numbers listed in the
exigent letter. We were not able to determine how
many days or weeks after the date of the NSL that the NSL was served on the carrier.
158 According to the NSD's letter to the FISA Court, the FBI obtained the subscriber
information underlying the fifth misstatement through a trash cover.
159 See 18 U.S.C. § 2708 ("the remedies and sanctions described in this chapter are the
only judicial remedies and sanctions for nonconstitutional violations of this chapter"); see also
United States v. Perrine, 518 F.3d 1196, 1202 (10th Cir. 2008); United States v. Steiger, 318
F.3d 1039, 1049 (11th Cir. 2003).

127

Mter reviewing a draft of this report, NSD officials stated that in addition
to concluding that the ECPA did not provide for exclusion of evidence for
violations of the statute, the NSD also examined each of the applications
addressed in FISA Cases 1, 2, 3, and 4 and determined that the inaccurate
information was not substantive in nature but rather concerned only the
manner in which information was obtained. The NSD officials stated that they
concluded that the misstatements were non-material because the underlying
substantive information provided in the misstatements was correct and that
only the procedural manner in which it was obtained was misstated (e.g., in
FISA Case 1 the declaration stated that subscriber information was obtained
from an NSL rather than from an exigent letter). We agree with the NSD that
the inaccurate statements were non-material for purposes of Rule 10(b) of the
FISA Court Rules of Procedure.
However, while the NSD deemed these statements "non-material" for
purposes of the FISA Court Rules of Procedure, we believe that inaccurate
statements to the FISA Court are serious matters. They also affect the
credibility of representations made by the government.
It is also important to note that we reviewed only a small percentage of

the FISA Court applications that may have relied upon information derived
from exigent letters or other informal means. Based on our results in these
cases we believe there are likely to be other similar inaccurate statements in
other applications. Moreover, no one in the FBI and the NSD who reviewed
these applications prior to their submission to the Court had identified the
inaccurate statements. Thus, our review also concluded that the FBI and the
NSD failed to provide adequate supervision and oversight to ensure the
accuracy of the FBI's declarations filed in support of applications seeking FISA
Court orders.
After reviewing a draft of this report, NSD officials told us that they
believe that even non-material representations to the Court are very serious
matters. They also said that, to address these types of issues, the FBI
instituted procedures in February 2006 to verify the factual accuracy of
information contained in FISA applications. To ensure that these procedures
are being followed, the NSD conducts on-site reviews of FBI field offices.
In Chapter Six of this report we provide recommendations to address the
issues identified in this portion of our review.
We recommend that the FBI, in conjunction with the NSD, should
determine whether any FISA Court orders for electronic surveillance or pen
register/ trap and trace devices currently in place relied upon declarations
containing FBI statements as to the source of subscriber information for
telephone numbers listed in exigent letters or the 11 blanket NSLs. If the FBI
and the NSD identify any such pending orders, we recommend that the FBI

128

and the NSD determine if any of the statements characterizing the source of
subscriber information are inaccurate or incomplete. If any declarations are
identified as containing inaccurate or incomplete statements, we recommend
that the FBI and the NSD determine whether any of these matters should be
referred to the FBI Inspection Division or the Department's Office of
Professional Responsibility for further review.
IV.

Improper Administrative Subpoenas Issued to the On-site
Providers

Our investigation also uncovered abuses in the FBI's use of
administrative subpoenas. 160 In some instances, the FBI received records in
response to exigent letters or other informal requests prior to service of
administrative subpoenas. In addition, we determined that some
administrative subpoenas served on the on-site communications service
providers were preceded by "sneak peek" requests through which the on-site
providers' employees would first check their databases to determine if records
of interest were contained in the databases, and in some cases provided
information prior to the service of administrative subpoenas.
We also found that in 2005 an FBI SSA in the CAU signed seven
administrative subpoenas pursuant to 21 U.S.C. § 876 for toll billing records
as part of the fugiti~nconducted by the FBI's _
Field
Division regarding _
This statute authorizes the use of
administrative subpoenas in connection with an active narcotics investigation
to which the records s ~ e relevant. However, some subpoenas were
issued when the FBI's _
Field Division had no active narcotics
investigation to which the requested records were relevant. Rather, t h e _
Field Division wanted these records because they were relevant to locating

-

Additionally, we determined that all seven of these administrative
subpoenas were signed by a CAU SSA who was not authorized to sign these
administrative subpoenas. Moreover, three of the seven subpoenas were
issued after the FBI already had obtained the records through exigent letters.
We also found that two additional administrative subpoenas related to a
separate case were issued by the FBI's _
Field Division after the FBI had

160 An administrative subpoena is a judicially enforceable demand for records issued by
a government authority.

129

obtained the records. The FBI received the records prior to issuing the
subpoenas, which violated the ECPA.
In the sections that follow, we describe these improper uses of the FBI's
administrative subpoena authority.
The FBI's Administrative Subpoena Authority

A.

The Attorney General is authorized to issue administrative subpoenas in
connection with the investigation of certain controlled substances (narcotics)
offenses and offenses involving sexual abuse or exploitation of children and
health care fraud.'6! Title 21, Section 876(a), of the U.S.C. provides that "in
any investigation relating to his functions under this chapter with respect to
controlled substances ... the Attorney General may ... require the production
of any records ... which the Attorney General finds relevant or material to the
investigation."162
The Attorney General has delegated authority to issue Title 21
administrative subpoenas to the FBI Director, who in tum has delegated the
authority to FBI Special Agents in Charge, Assistant Special Agents in Charge,
Senior Supervisory Resident Agents, and "those FBI Special Agent Squad
Supervisors who have management responsibilities over Organized Crime/Drug
Program investigations."163 This authority may not ordinarily be
re-delegated. IM
Finally, the ECPA recognizes an exception to the prohibition against
divulging "a record or other information pertaining to a subscriber to or
customer of such service ... when the governmental entity uses an
administrative subpoena authorized by a Federal or State
statute ...."165

161 See 21 U.S.C. § 876 (narcotics) and 18 U.S.C. § 3486 (sexual abuse or exploitation
of children and health care).
162 21 U.S.C. § 876(a). The FBI's Manual ofInvestigative Operations and Guidelines
(MIOG) has a corresponding provision stating that any Title 21 subpoena for the production of
records must be relevant to a controlled substances investigation. MIOG, Pt. I § 281-7.1
163 See 28 C.F.R. § 0.85; see also Criminal Investigative Division, electronic
communication to all field divisions, Procedure and Operational Issuances, Criminal
Investigative Division; Administrative SUbpoenas; Proposed Change in the Manual of
Investigative Operations and Guidelines, May 1, 2007.
1M

Id.

>65

18 U.S.C. § 2703(cJl2).

130

B.

Administrative Subpoenas Served on the On-Site Providers

We found that the FBI served over 200 administrative subpoenas for
telephone records on the on-site communications service providers from 2003
to 2006. Most of these subpoenas were signed by FBI field division personnel,
but some were signed by a CAU SSA. As was the case with NSLs issued after
records were provided to the FBI (as described in Chapter Four), a CAU SSA
told us that in some instances the communications service providers'
employees gave records to the FBI in response to exigent letters prior to service
of administrative subpoenas.

Documentation we reviewed from the FBI and the on-site providers
showed that some of the administrative subpoenas served on the on-site
providers relating to the
investigation were preceded by "sneak
peek" requests through which the on-site providers' employees would first
check their databases to detennine if records of interest were contained in the
databases. In response to sneak peeks, the on-site providers in most instances
infonned CAD personnel that records existed on the telephone numbers of
interest, and the FBI sometimes issued administrative subpoenas for any
records the FBI wanted. However, in some instances the on-site providers gave
the CAD specific infonnation about calling activity, such as the date of the last
call, how many calls were found, and the date range of calls identified, before
any legal process was issued. l66
C.

Improper Administrative Subpoenas Issued In Two FBI
Investigations

In two FBI criminal investigations, we found that SSAs signed
administrative subpoenas that were issued to the on-site providers in
circumstances that violated 21 U.S.C. § 876 and the FBI regulation governing
the delegation of signature authority for Title 21 administrative subpoenas. In
these instances the ECPA prohibition against divulging "a record or other
infonnation pertaining to a subscriber to or customer of such service" was also
violated.
1.

Issuing FBI Administrative Subpoenas in the Absence of
an Active Narcotics Investigation

From December 2003 to September 2006, the FBI served at least 54
administrative subpoenas related to the _
Field Division's fugitive

166

We describe our finding that sneak peeks violated the ECPA in Chapter 1\vo of this

report.

131

investigation of
on the on-site communications service
providers located in the CAU. Of that total a CAU SSA signed seven FBI
administrative subpoenas for telephone toll billing records between Januaty
2005 and June 2005. At the time, this SSA served as the manager of the
CAUls operational support to the FBI's _
investigation.
The CAU SSA told us that no one on the _
task force told him that
any of the telephone numbers listed in the seven administrative subpoenas was
relevant to any drug investigation. Rather, he said he understood from the
_
task force case agent and a task force Intelligence Analyst that the
records were relevant to the FBI's attempts to locate _
The SSA also said
that he knew that the _
in~on was classified by the FBI as a "drug
case" and told us "that is what _
is wanted for."
In August 2008, the OIG asked FBI aGC attorneys responsible for
guidance on administrative subpoenas to describe if they believed it was
appropriate to issue Title 21 FBI administrative subpoenas in a fugitive
investigation where the underlying racketeering acts in the indictment included
narcotics offenses. Elaine N. Lammert, FBI Deputy General Counsel for the
Investigative Law Branch and Chief of Staff for the FBI aGC, told us that in
order to use Title 21 administrative subpoena authority, FBI agents must have
an active narcotics investigation at the time the subpoenas are issued and
believe in good faith that the records requested are relevant to that
investigation.
FBI OGC attorneys asked the _
Field Division to provide
information indicating that it had an active narcotics investigation to which
telephone numbers listed in administrative subpoenas issued in the _
investigation were relevant. On March 4,2009. following review of information
provided by the _
Field Division, the FBI aGC notified the alG that 'while
appropriate in certain aspects of the case at certain times, widespread use of
administrative subpoenas in this investigation without a clear nexus to an
active investigation of violations of the Controlled Substances Act could not be
supported. «

2.

Administrative Subpoenas were Signed by Unauthorized
Personnel

In addition. we determined that the CAU SSA who signed the seven
administrative subpoenas in the _
case was not among the FBI officials to
whom the Attorney General delegated authority to sign Title 21 administrative
subpoenas. The SSA told us he believed he was authorized to sign the
subpoenas because CAU Unit Chief Glenn Rogers had designated him to be the
CAU program manager assigned to support the _
Field Division's_
investigation. The SSA said he would not have signed the administrative
subpoenas unless he believed he was authorized. He also said that he recalled

132

that the _
task force members agreed that he could sign them. However,
he said he did not recall any specific conversations with CAU Unit Chiefs
Rogers or Youssef, or any FBI attorneys in which he was told he was
authorized to sign the subpoenas.
The CAU SSA told us that he was
b an on-site Company A
analyst when there was c~tivity from
telephone
numbers associated with _
family, friends, or attorneys. The CAU SSA
told us that he used Company A's hot number:~capability in the
_
investigation. Once the CAU SSA was _
to calling act~ those
telephone numbers, Company A typically performed a sneak peek _
to
determine if the telephone number c a l l ~call from the "hot
number" was a real telephone number _
If it was a relevant
telephone number, the Company A analyst notified the CAU SSA, who then
signed either an exigent letter or issued an administrative subpoena addressed
to Company A seeking records for those telephone numbers. The SSA
subsequently issued Title 21 administrative subpoenas to cover some of the
records obtained through exigent letters.
FBI records show that the data provided b
the exigent letters were uploaded into an
database before the date of the administrative subpoenas issued by the SSA to
cover the records.

3.

Two Additional After-the-Fact Administrative
Subpoenas

We identified two additional after-the-fact administrative subpoenas in a
different investigation in which the subpoenas were provided from 1 to 6 weeks
after the records had already been obtained by the FBI through exigent letter or
an informal request.
In an organized crime/ narcotics investigation conducted by the FBI's
_
Field Division, another CAU SSA signed 2 exigent letters addressed to
Company A dated August 9, 2004, seeking toll billing records for a total of 24
tele hone numbers. Responsive records were uploaded in a n _
database on August 10, 2004. A ~sued an
administrative subpoena to Company A, dated August 17,2004, to cover these
records. 167

167 As an SSA assigned to the FBI's Criminal Enterprise Program, this SSA was
authorized to sign Title 21 administrative subpoenas.

133

In connection with the same investigation, on August 11,2004, the CAU
SSA asked the on-site Company C employee whether Company Chad
telephone records on the 24 telephone numbers listed on the 2 August 9, 2004,
exigent letters to Company A (and 46 additional numbers). In response to this
verbal request, the Company C employee delivered a CD with responsive
records to the FBI on August 17, 2004. The field-based SSA who had sigoed
the August 17, 2004, administrative subpoenas to Company A also signed an
administrative subpoena to Company C dated September 30, 2004, to cover
records for 4 of the 70 telephone numbers for which Company C had already
provided records in response to the informal request. 168

4.

Knowledge of the Use of The Title 21 Administrative
Subpoenas

We determined that the FBI aGC and CAU management were unaware of
these inappropriate uses of administrative subpoenas to cover records obtained
through exigent letters and other informal requests. FBI General Counsel
Caproni told us that she did not know that the FBI had issued administrative
subpoenas to cover records obtained in response to exigent letters. NSLB
Deputy General Counsel Julie Thomas also said she did not recall being
informed about administrative subpoenas in these cases. CAU Unit Chief
Bassem Youssef told us that he never discussed with the CAU SSA who signed
the seven administrative subpoenas, Assistant Section Chief Glenn Rogers, or
NSLB attorneys the SSA's authority to sign administrative sUbpoenas to cover
records acquired from exigent letters. Moreover, he said he did not know that
administrative subpoenas were used to cover records acquired through exigent
letters.
D.

OIG Analysis

After the aIG raised questions about the FBI's use of administrative
subpoenas in the _
Field Division's _
investigation, the FBI aGC
responded that, in its view, in the absence of an active narcotics investigation
to which the telephone numbers in the administrative sUbpoenas were relevant
the FBI is not authorized to issue Title 21 administrative subpoenas. Further,
when the FBI aGC reviewed the _
Field Division's basis for issuing Title
21 administrative subpoenas in the _
case, the FBI aGC concluded that
the _
Field Division did not demonstrate that it had an active narcotics
investigation to which the records sought in all of the administrative
subpoenas were relevant. Accordingly, the FBI concluded that the _
Field

168 We did not locate administrative subpoenas for the remaining telephone numbers
referenced in the informal request.

134

Division had at times improperly issued administrative subpoenas in that
investigation. Followi~ FBI OGC's review, in March 2009, the FBI General
Counsel ordered the _
Field Division to
immediately conduct a comprehensive review of the use of each
administrative subpoena issued in this case to determine whether
it was authorized pursuant to the above discussion, and if not, to
purge these records from FBI systems and the case file.

We agree with the FBI OGe's an~and conclusion regarding the issuance of
administrative subpoenas in the _
investigation.

During this investigation we also found that the FBI did not establish
sufficient internal controls of the use of administrative subpoenas in the CAU.
A CAU SSA who was not authorized to issue Title 21 administrative subpoenas
signed seven such subpoenas, and no one in the CAU or the _
Field
Division recognized the improper use of this authority. Moreover, the FBI aGC
and CAU management were unaware that the CAU was using administrative
subpoenas to cover records acquired from exigent letters.
We found that the ECPA was violated when the FBI obtained
ECPA-protected telephone records in these matters without nrst issuing
appropriate legal process. The ECPA requires communications service
providers to disclose local and long distance non-content telephone records
'when [the FBlj uses an administrative subpoena authorized by a
Federal ... statute ... ." 18 U.S.C. § 2703(c)(2). However, the ECPA does not
authorize the FBI to obtain ECPA-protected records and then serve an
administrative subpoena. Accordingly, we believe that the FBI's receipt of
records obtained prior to issuance of administrative subpoenas violated the
ECPAI69.
In Chapter Six of this report we provide recommendations designed to
ensure that all FBI personnel receive training and periodic guidance on the
FBI's administrative subpoena authorities and the relationship between those
authorities and other federal statutes, including the ECPA, that govern the
FBI's authority to seek telephone records.

169 The FBI has not asserted, and we found no evidence to support, that these were
emergency voluntary disclosures pursuant to 18 U.S.C. § 2702(c)(4).

135

(pAGE LEFT INTENTIONALLY BLANK)

136

CHAPTER FOUR
THE FBI'S ATTEMPTS AT CORRECTIVE ACTIONS
REGARDING EXIGENT LETTERS
In this chapter we describe the FBI's efforts at corrective action to
address the use of exigent letters, including the FBI's efforts to provide legal
process to cover records _
and often acquired in response to exigent
letters or other informal requests. The chapter is divided into two time
periods: (1) the initial efforts from 2003 through October 2006; and (2) the
efforts, beginning in November 2006, after attorneys in the FBI Office of the
General Counsel (FBI OGC) National Security Law Branch (NSLB) learned
about "blanket NSLs" that Communications Analysis Unit (CAU) personnel
had drafted and Counterterrorism Division (CTD) officials had signed to
cover previously acquired telephone records. 170
I.

The FBI's Attempts at Corrective Actions From 2003 through
October 2006

We determined that CAU personnel who issued exigent letters to the
on-site communications service providers for records or calling activity
information, or used other informal means for requesting records without
legal process, sometimes obtained after-the-fact legal process, such as
NSLs, to "cover" the original requests. However, as described in Chapter
Three of this report, the Electronic Communications Privacy Act (ECPA) does
not authorize the FBI to obtain such records unless it first serves
compulsory legal process, such as an NSL, or the provider makes a
voluntary production pursuant to Section 2702's emergency disclosure
provision. 171 There is no provision in the ECPA authorizing the issuance of

170 FBI personnel first used the term "blanket NSL" in August 2006 to describe
certain after-the-fact NSLs prepared by CAU personnel and signed by CTD officials. We
also use that term in this report.
171 The ECPA NSL statute requires communications service providers to comply
with requests for telephone subscriber and toll billing records information if the Director or
his designee

certifies in writing ... that the name, address, length of service, and toll
billing records sought are relevant to an authorized investigation to protect
against international terrorism or clandestine intelligence activities, provided
that such an investigation of a United States person is not conducted solely
on the basis of activities protected by the first amendment to the
Constitution of the United States.
(Cont'd.)

137

retroactive legal process. 172 Therefore, after-the-fact NSLs would not cure a
prior improper receipt of records under the ECPA.
As described below, from 2003 through October 2006 CAU Unit Chief
Glenn Rogers and his successor Bassem Youssef took steps to request the
issuance of after-the-fact NSLs from FBI operating divisions to cover these
records. Because the CAU was an operational support unit, CAU personnel
did not conduct investigations. CAU personnel were not authorized to issue
NSLs. The unit therefore depended on field or Headquarters divisions to
prepare and issue the after-the-fact NSLs. However, the operating divisions
often did not respond quickly and sometimes did not respond at all to the
CAU's requests for after-the-fact NSLs. As a result, during Rogers's tenure
as CAU Unit Chief, a backlog developed of requests for legal process for
records that had been provided by the on-site communications service
providers at the CAU's request. We determined that Rogers did little to
address the backlog. After Rogers left and Youssef became the Unit Chief in
November 2004, Youssef began taking steps in approximately April 2005 to
address the backlog of legal process owed to one provider, but did not
recognize or begin to address the backlog for the other providers until
October 2005.
The FBI OGC also became involved in addressing the exigent letters
practice during this time period. We found that in December 2004, NSLB
attorneys in the FBI OGC became aware of the CAU's use of exigent letters
and its difficulty in obtaining prompt after-the-fact NSLs from the operating
divisions. However, NSLB attorneys failed to direct that the CAU end the
practice of issuing exigent letters with the promise of legal process until
March 2007, following release of the OIG's first NSL report.
Moreover, beginning in January 2005, NSLB attorneys themselves
became involved with the CAU in issuing after-the-fact NSLs to cover the
records acquired in response to exigent letters. The NSLB attorneys also
attempted to initiate a process that would ensure prompt issuance of
after-the-fact NSLs predicated on open national security investigations.
However, this effort was ineffective because the issuance of after-the-fact
legal process would not retroactively validate an improper disclosure of
records under the ECPA, even if the legal process was served a short time
after receipt of the records. In any event, the proposal was never

18 U.S.C. § 2709(b).
172

See In re Application of u.s. for Nunc Pro Tunc Order, 353 F. Supp. 45, 46

(D. Mass. 2005).

138

implemented. While NSLB attorneys focused during this period on the
issuance of NSLs for ongoing CAU exigent letter requests, they did not
recognize and address in a timely manner the legal flaw with issuing
after-the-fact NSLs.
We also describe the actions of the CAU Unit Chiefs and the NSLB
attorneys regarding the CAU's use of exigent letters, the backlog of promised
legal process, and the actions taken to address the backlog.

A.

A Backlog First Develops During Rogers's Tenure as CAU
Unit Chief

Rogers told us that during his tenure as CAU Unit Chief from March
2003 to November 2004, he regularly reminded CAU personnel to stay
current on NSLs that were owed to the providers. He also said he
sometimes spoke with personnel assigned to CTD operational units about
the importance of issuing after-the-fact legal process for telephone records,
and on one occasion spoke with a field division about providing an
after-the-fact NSL to the CAU. However, Rogers did not require CAU
personnel to maintain lists of telephone numbers for which the CAU had
requested information from the on-site providers, or otherwise to keep track
of exigent letters to ensure that legal process followed the exigent letters.
Instead, CAU personnel relied on the three on-site communications service
providers to tell them whether legal process had been provided to cover the
records acquired in response to exigent letters.
We determined that by November 2004, the CAU had made requests
for records to the on-site providers for hundreds of telephone numbers for
which legal process had not been provided. The on-site Company B
employee, who first came to the CAU in September 2004, told us that by
November 2004 he was concerned that Company B was not receiving
after-the-fact legal process for records he had provided to CAU personnel in
response to exigent letters. He said he spoke to Rogers about the backlog of
records requiring legal process before Rogers left the CAU in November 2004
to become the Assistant Section Chief for the CTD's Communications
Exploitation Section (CXS) (the CTD Section that oversaw the CAUl.
According to the Company B employee. Rogers told him "these take a little
time" and "you need to stay after the guys." The Company B employee said
that he was surprised by Rogers's response because he did not think he
should be responsible for following up with CAU personnel.
Although a backlog of record requests requiring legal process
developed in the CAU, CAU personnel continued to sign and issue exigent
letters to satisfy the operational support requests from FBI headquarters,
the CTD's operational units, and field divisions. A significant number of
these requests came from the International Terrorism Operations Section 1

139

(ITOS-I), which was responsible for addressing many of the international
terrorism threats directed at the United States during this period.
ITOS-I managers told us that they did not know about any CAU
backlog in obtaining follow-up legal process in 2004 and 2005. Several
ITOS managers told us that CAU personnel attended the daily ITOS
briefings at which major terrorism investigations were discussed. At the
conclusion of these briefings, the CAU was often directed to analyze
telephone numbers identified in the course of these investigations to
determine whether they had any U.S. connections. ITOS-I managers told us
they did not know the mechanics of how the CAU accomplished its work,
although most of these managers told us they were generally aware that the
CAU used the resources available from the on-site communications service
roviders and various FBI databases,
taskings. 173
ITOS-I witnesses also told us that while they were unfamiliar with the
procedures used by the CAU to analyze telephone numbers, they assumed
that CAU personnel followed appropriate legal requirements. For example,
Michael Heimbach, who was the CTD Assistant Section Chief over ITOS-I
from February 2003 to March 2004 and the ITOS-I Section Chief from
March 2005 to January 2007, told us:
· .. it's their lane. It's the operational support's lane, meaning
this is their job. This is their business. How, what
relationships they had with Company A, Company C, and ~,
I have no clue. I mean I ... wasn't in the weeds with them on it
· . .. How they did it, what they were doing, what the process .
· . wasn't my lane of traffic.
Shortly before Rogers left the CAU in November 2004 to become the
CXS Assistant Section Chief, he instructed a CAU Intelligence Analyst to
implement a tracking system for records requests so that the CAU would
not have to rely on the on-site providers to know whether after-the-fact legal
process had been served. As discussed below, the tracking system was
developed and later abandoned after Rogers left the CAU.

As described in Cha ter Two of this report, CAU personnel had access to a
database that CAU analysts regularly queried for records
and used to perform analytical work. CAU personnel sometimes responded to requests for
assistance through data analysis in this database. At other times, CAU personnel obtained
data from the on-site providers, then analyzed the results once the records were uploaded
into this database.
173

140

Rogers told us that when he left the CAU he was not aware that there
were any record requests that still required legal process. By contrast, as
described above, the Company B employee told us that he discussed the
backlog with Rogers before Rogers's departure from the CAU. In addition,
the Assistant General Counsel who was the NSLB point of contact for
NSL-related policies and issues told us that in late 2004 or early 2005,
Rogers told her that there were about 80 NSLs or telephone numbers for
which after-the-fact NSLs had not been served. The Assistant General
Counsel said that she was also informed at that time that the CAU was
implementing a new tracking system for exigent letters and she believed
that when the system was implemented the CAU would be better able to
track telephone numbers requiring NSLs.
We also determined that the CAU Intelligence Analyst who was
responsible for implementing the tracking system requested and received
lists from Company B and Company C in January 2005 identifying a total of
188 telephone numbers requiring legal process that the providers had
previously _
in response to the CAU requests. These 188 telephone
numbers represented approximately two-thirds of the total number of
telephone numbers that CAU personnel had included in exigent letters or
other informal requests to Company B and Company C in 2004. 174
Thus, when Youssef succeeded Rogers as the CAU Unit Chief in
November 2004, there was a significant backlog of telephone records
requests for which legal process had been promised but not delivered.
As we describe below, shortly after Rogers was promoted and Youssef
became CAU Unit Chief, the Assistant General Counsel alerted her
supervisors in the NSLB about the CAU's practice of using exigent letters.
We determined that NSLB attempted to institute a process for issuing NSLs
quickly - albeit still after-the-fact - to cover future CAU requests for records
from the on-site providers in exigent circumstances. However, months
passed before Youssef and the NSLB attorneys recognized and addressed
~ e backlog of requests for which the providers had
_
or provided the FBI records but were still awaiting legal
process.

17't The Company C employee frrst arrived at the CAU in April 2004, and the
Company B employee arrived in September 2004. Company A did not give CAU personnel
a list of telephone numbers requiring legal process in January 2005; however, we have no
reason to believe that the CAU was any more successful in obtaining after-the-fact legal
process for Company A than for the other providers.

141

B.

NSLB Knowledge of Exigent Letters and Involvement in
Issuing After-the-Fact NSLs

We determined that although the CAU began using exigent letters in
March 2003, FBI attorneys were not alerted to the practice until July 2004.
On July 19, 2004, a CAU Intelligence Analyst sent an e-mail to the Assistant
General Counsel stating that the CAU had a Company A analyst on-site.
The e-mail described the services that Company A provided, noting that in
time-sensitive threat matters the CAU could obtain information from the
on-site Company A analyst by using "an exigent letter" and following up
later with an NSL.
However, the Assistant General Counsel told us she believed she first
became aware of the use of exigent letters in December 2004. She said that
she must have overlooked the reference to exigent letters in the July 19
e-mail from the CAU analyst.
The Assistant General Counsel said that she recalled learning about
exigent letters in December 2004 in connection with a specific request from
the CAU that NSLB prepare an after-the-fact NSL. FBI e-mails reflect that
in mid-December 2004, a CAU SSA asked the NSLB to prepare an NSL to
cover records for telephone numbers that had been previously obtained.
The CAU SSA told the Assistant General Counsel that~hone
numbers included numbers that had been previously _
by Company
A pursuant to the CAU "form letter" requests that promised future legal
process.
The Assistant General Counsel reported the CAU request to her
immediate supervisor and to NSLB Deputy General Counsel Julie Thomas,
in an e-mail dated December 17, 2004. 175 In that e-mail, the Assistant
General Counsel informed them that in connection with the request, the
CAU SSA had told her the following:
•

The CAU was regularly obtaining records without legal process
from the on-site communications service providers.

175 In this section of the report, we rely significantly on e-mails to and from the
Assistant General Counsel. She told us that because many of the issues we interviewed
her about happened more than 3 years earlier, she could not recall the events with
certainty. However, she stated that the e-mails accurately depicted her understanding of
events at the time.

142

•

The CAU often received emergency requests for records from
senior FBI officials and used a "form letter" to obtain these
records that promised after-the-fact legal process.

•

The CAU attempted to obtain after-the-fact legal process from
field divisions.

•

Field divisions often would not respond to the CAU's requests
for follow-up legal process.

•

The CAU was starting a "tickler system" to track follow-up legal
process requests.

However, at this time the Assistant General Counsel did not ask to
see a copy of the "form letter" promising future legal process that the CAU
SSA told her had been used to obtain records. However, she told us, and
her contemporaneous e-mails confirm, that from the time she was told
about the CAU obtaining records with exigent letters through late 2006 she
consistently told CAU personnel that the exigent letters practice should be
limited to emergency situations and that after-the-fact NSLs must follow
promptly.
The Assistant General Counsel said she believed that in emergency
situations, after-the-fact NSLs were appropriate as long as they were issued
within 24 to 48 hours of the exigent letter request. She told us that she
recognized that there was "no specific provision" in the ECPA authorizing
issuance of after-the-fact NSLs, but she said she believed that the legislative
intent of the statute would permit prompt issuance of after-the-fact NSLs in
"real emergencies ... where peoples' lives are at issue." She said that
during this period, she sought to ensure that the follow-up NSLs were
issued quickly, but assumed that the CAU was issuing exigent letters only
in true emergencies. She also told us that she understood that her
supervisors were in agreement with her analysis that after-the-fact NSLs
were appropriate in emergency situations.
Although the Assistant General Counsel did not object to drafting the
after-the-fact NSL for the previously obtained records, in a follow-up e-mail
dated December 23, 2004, to her supervisor and Thomas, the Assistant
General Counsel stated that because the NSLB knew the records had
already been received she thought they should phrase the NSL to reflect
that fact. She also stated in the e-mail that she was "real uncomfortable
doing it any other way" and that she did not think she could issue the NSL
as if she were unaware the FBI already had the information. She also noted
that the CAU SSA was unhappy with her suggestion that the NSL state that
records had been previously provided and the SSA told her the provider was
expecting "a regular NSL."

143

Thomas replied to the Assistant General Counsel's e-mail, stating that
she would discuss the issue with NSLB supervisory attorneys. Thomas also
asked the Assistant General Counsel for proposed language for the
after-the-fact NSL. However, Thomas also did not ask to see the exigent
letter that had been used to obtain the records, did not at that time (or at
any time until late 2006) review the contracts with the providers, and did
not ask anyone in NSLB to do so.
Ultimately, Thomas signed an after-the-fact NSL dated January 18,
2005, addressed to Company A. We determined that this NSL included
some telephone numbers that were listed in exigent letters dated July 13,
14, and 15, 2004, that were given to an on-site Company A analyst. Despite
the misgivings expressed by the Assistant General Counsel to her
supervisors about signing NSLs that did not disclose that the FBI had
already received the records, the NSL and accompanying approval EC did
not state that Company A had previously provided the records to the
FBI.
We found that Thomas signed six additional after-the-fact NSLs over
the next 4 months in which the NSLs themselves and the accompanying
approval ECs did not disclose that these records had previously been
requested and received by the FBI. Thomas signed an NSL dated
February 2, 2005, addressed to Company A, which included a list of 63
telephone numbers related to Operation "W."176 We determined that this
NSL included some telephone numbers that were lis~tters
given to the on-site Company A analysts as early as _
Thomas also signed an after-the-fact NSL dated February 2, 2005,
addressed to Company B, which related to Operation W and listed one
telephone number. The FBI had previously re uested records for this
telephone number in an exigent letter dated
Thomas signed two NSLs dated June 28, 2005, addressed to
Company A and Company C. These NSLs sought records from each
provider for 163 telephone numbers related to another ma'or FBI operation.
All of these telephone numbers had previously been
and records
for many of them had been provided to the CAU as early as
On June 30, 2005, Thomas signed at least two more after-the-fact NSLs in
connection with another counterterrorism investigation. These two NSLs
covered records for telephone numbers that the CAU had requested from the
providers in October 2004. E-mails show that the Assistant General
Counsel had informed Thomas prior to her signing the NSLs that these

176

The name of this operation is classified.

144

records had been provided to the FBI 8 months earlier. Thomas told us that
she did not recall the e-mails or these two NSLs, but she characterized the
investigation to which the NSLs were related as "the greatest of
emergencies. "
In an interview in August 2008, Thomas acknowledged that she
signed these seven after-the-fact NSLs, although she told us that she did
not have a specific recollection of any of the NSLs themselves. Thomas said
she has signed thousands of NSLs and therefore could not recall specific
NSLs. She said that the CAV was one of nearly 100 FBI units that NSLB
supported, and she noted that these NSLs were dated up to 3% years ago.
She also said she relied on the accompanying approval ECs, which are
reviewed by at least one and sometimes two NSLB attorneys, for the facts
relating to the NSLs she signed.

Thomas also said she did not recall being told that the telephone
numbers listed in the NSLs had been previously _
and that records
already had been provided to the CAV. When we showed her the
December 23, 2004, e-mail exchange between her and the Assistant General
Counsel described above, in which the Assistant General Counsel raised her
concern that the NSL should document that the FBI already had the
records, Thomas said she did not recall the exchange and also did not recall
having any discussions about that issue with NSLB supervisors.
In August 2008, Thomas also told the OIG that she did not believe
that follow-up NSLs were required regarding this information because she
believed during the period when these NSLs were signed that the CAU's
requests to the on-site providers "were likely all emergency circumstances."
Thomas said she therefore concluded that the requests the CAU made to the
on-site providers fell within the emergency voluntary disclosure statute, 18
V.S.C. § 2702(c)(4), and that "follow-on NSLs would not be required."
However, when probed on whether she and other FBI aGC attorneys relied
on Section 2702 in 2004 and 2005, Thomas stated that she could not
separate what she knew at the time of her interview from what she knew
then. 177 Thomas said the reason the FBI provided follow-up NSLs in these
cases was because the on-site providers wanted them.

177 As noted, prior to March 2006, 18 U.S.C. § 2702(c)(4) provided that a
communications service provider could voluntarily provide telephone records to the FBI if
the provider "reasonably believes that an emergency involving danger of death or serious
physical injury justifies disclosure of the infonnation." We discuss in Chapter Six of this
report our conclusion regarding the applicability of the emergency voluntary disclosure
(Cont'd.)

145

Thomas also said that since the follow-up NSLs she signed were not
legally required, she saw no need for the NSLs to document that the records
requested had been previously provided. She said she was confident that
the on-site providers were aware that the records had been previously
provided and were not misled by the absence of any reference to this fact in
the follow-up NSLs.

C.

NSLB Attomey Meets with CAU Personnel Regarding
Exigent Letters

In addition to learning about the problems in obtaining after-the-fact
NSLs and addressing the request for an after-the-fact NSL, the Assistant
General Counsel learned in early 2005 that in some instances CAU
personnel had issued exigent letters to communications service providers in
the absence of any authorized and open national security investigation. 178
The Assistant General Counsel was concerned about this practice because
the ECPA NSL statute and the Attorney General's Guidelines for FBI
National Security Investigations and Foreign Intelligence Collection (NSI
Guidelines) required that information sought in NSLs be relevant to an
"authorized investigation to protect against international terrorism or
clandestine intelligence activities .... "179 The Assistant General Counsel
believed that after-the-fact NSLs could not be issued unless they were
relevant to an open, authorized national security investigation.

On January 6, 2005, the Assistant General Counsel met with CXS
Assistant Section Chief Rogers and a CAU SSA to discuss the CAU's process
for obtaining records from the on-site providers.l 8o E-mail records show

statute to the CAU's acquisition of ECPA-protected records from the on-site providers
pursuant to exigent letters or other infonnal requests.
As discussed below, FBI General Counsel Caproni and the Assistant General
Counsel told us that they did not discuss amongst themselves or conclude in 2004, 2005,
or 2006 that the acquisition of subscriber and toll billing records in response to exigent
letters qualified as emergency voluntary disclosures pursuant to 18 U.S.C. § 2702(c)(4).
178 Many of the signers of these exigent letters told us that in these instances they
were concerned about addressing the exigency and did not consider whether an
investigation had yet been opened. One signer told us that he anticipated an investigation
would be opened shortly after the exigent letter was issued.
179 NSI Guidelines, Section V(12}{"use of National Security Letters in conformity
with ... 18 U.S.C. § 2709 (relating to subscriber infonnation, toll billing records ......
See 18 U.S.C. § 2709(b).

180 Youssef's attorney has asserted to the DIG that Youssef was "excluded" from or
"not invited to" this meeting. However, Youssef's FBI e-mails show that he was invited to
the meeting and that the time of the meeting was changed at his request in order to
(Cont'd.)

146

that they discussed issues concerning the emergency records requests CAU
personnel had been receiving, including the fact that CAU personnel were
given little information about the requests. In an e-mail to Thomas on
January 6 shortly after the meeting. the Assistant General Counsel reported
that Rogers and the SSA told her they were "inundated" with emergency
requests, including requests from Gary Bald. the Executive Assistant
Director of the FBI's National Security Branch. She stated they told her that
in response to Bald's requests, the CAU would obtain records from the
on-site providers "with very little background as to why the telephone
number is important." The Assistant General Counsel informed Thomas
that she told Rogers and the SSA that they should tell Bald that they needed
more information about the requests and that they could tell Bald that
NSLB attorneys required predication for obtaining the information. The
Assistant General Counsel added in her e-mail, "But I know that's not going
to happen."ISI
Bald confirmed to us that he often requested information regarding
telephone numbers from the CAU. He said that the CAU provided valuable
information and that he had repeatedly encouraged his subordinates in CTn
operational units to utilize the CAU and the on-site providers' resources.
However, he said he was unaware of the procedures the CAU used to
comply with his requests. He said he did not know that the CAU used
exigent letters and assumed that NSLs were issued to the providers prior to
release of information to the FBI. He also said he was never told that the
on-site providers were providing information to the CAU before they received
an NSL.
In her January 6 e-mail to Thomas. the Assistant General Counsel
proposed that NSLB personnel be made available to the CAU to help get
NSLs signed quickly after the FBI acquired records from the on-site
providers in emergency situations. She acknowledged that under her
proposal the CAU would still receive records prior to issuance of the NSLs.
but stated that her plan would ensure that NSLs would be issued "very
shortly after" any information was provided. 182

facilitate his attendance. However, Youssef did not attend and later apologized for missing
the meeting.
181 Thomas told us that while she did not recall this particular e-mail and did not
speak with Bald about this issue, she agreed with the Assistant General Counsel's advice.
She said that on numerous occasions she has provided similar advice to FBI personnel so
that "they can use the lawyers as the 'fall guy'."
182 The Assistant General Counsel also informed Marion Bowman, who had
previously served as NSLB Deputy General Counsel, of her concern that the CAU was not
(Conl'd.)

147

In mid-January 2005, Thomas agreed to a proposal from the
Assistant General Counsel's supervisor that two NSLB attorneys and a
paralegal serve as the NSLB points-DC-contact for the CAU to prepare
after-the-fact NSLs to cover records obtained through exigent letters.
Also in January 2005, the Assistant General Counsel proposed a
solution to her NSLB supervisors, including Thomas, which she believed
would ensure that telephone numbers listed in exigent letter requests would
be relevant to open national security investigations. She proposed that CTD
operational units open generic preliminary national security investigations
(called "umbrella files") for various types of recurring threats to the United
States. 183 The Assistant General Counsel suggested that when CAU
personnel were asked by field divisions or FBI Headquarters to request
telephone records from the on-site providers in cases where there was no
open national security investigation to which the records were relevant, CAU
personnel would associate the telephone number with one of the open
umbrella files based upon the nature of the threat. As discussed below,
however, this umbrella fIle proposal was never implemented. 184
On January 26, 2005, the Assistant General Counsel and the two
NSLB attorneys designated as the points of contact met with CAU personnel
to discuss their proposed assistance to the CAU. Both point-of-contact
attorneys told us that the umbrella file idea was discussed at the meeting

obtaining predication information from FBI requesters. In a November 2006 e-mail, the
Assistant General Counsel informed Caproni that Bowman had spoken to "higher ups to
make sure they understood that CAD needed more information when doing a request in
order for the request to allow for an NSL." Bowman told us that he spoke with CTD DAD
John Lewis about the Assistant General Counsel's concern, but did not raise the issue with
other FBI officials.
18:) When the FBI opens an investigation, each investigation is assigned a unique
file number. If implemented, the Assistant General Counsel's proposal would have resulted
in the assignment of a unique file number for each type of generic threat, such as threats
against transportation facilities, infrastructure, or special events. This file number would
then serve as the authorized national security investigation referred to by FBI personnel in
preparing the Electronic Communication lEG) seeking approval of after-the-fact NSLs.
184 The umbrella file proposal would have addressed only one aspect of the exigent
letter problem - the ECPA requirement that records sought in NSLs be relevant to
authorized national security investigations. See 18 U.S.C. § 2709(bJ. However, as
discussed in Chapter Six of this report, the core legal problem with exigent letters was that
the ECPA does not authorize the FBI to obtain telephone toll records unless it ftrst serves
compulsory legal process such as an NSL, or the provider makes a voluntary production
pursuant to Section 2702's emergency disclosure provision. Thus, even if there were
authorized investigations to which the records sought in exigent letters were relevant, this
legal problem would remain.

148

and both said they understood that they would be assisting the CAU in
issuing NSLs quickly in emergency situations. They both said they
understood that the NSLs they would facilitate would be issued prior to the
CAU obtaining records, not after the records had already been obtained. In
addition, they said that they understood that they would be working on
future requests for records and that they were not aware of any backlog of
requests for which legal process had been promised. One of the attorneys
stated that when she left the meeting she did not expect to receive any NSL
requests from the CAU until the umbrella file proposal was
implemented. 18S
CAU Unit Chief Youssef did not attend this meeting. He told us he
did not know until 2007 that the NSLB had designated points of contact to
assist the CAU with NSLs.186 However, FBI e-mails reflect that Youssef was
informed in advance about the proposed NSLB assistance and about the
January 26, 2005, meeting with NSLB personnel, and that he had
instructed CAU personnel to attend the meeting.
Both of the point-of-contact attorneys told us that in the months
following the January 26 meeting they did not receive any requests for
assistance from the CAU although they were included on various e-mails
addressing the umbrella file issue. FBI e-mails also reflect that several
months after the January meeting the Assistant General Counsel notified
her supervisors that the NSLB attorneys had not received any requests for
assistance from the CAU.
In connection with the January 26, 2005, meeting, Youssef told us
that beginning in November 2004 (when he became Unit Chief), and
continuing through mid-April 2005, Rogers "specifically kept me out of
several communications, several e-mails between [Rogers] and NSLB."
Youssef said that, "Rogers knew about the fact that I was going to be at
another meeting that day . . . . This was an indication that I was not needed
at this meeting." Youssef stated that Rogers generally kept him "out of the
loop" and that Youssef was not able to raise concerns he had about how the
CAU was being run to Rogers because Rogers was not willing to listen to his
suggestions.

185 We also reviewed various e-mails between the Assistant General Counsel and
NSLB supervisors in which she expressed her opinion that without open umbrella mes the
two point-of-contact attorneys and the paralegal could not assist the CAU with preparing
NSLs.
186

FBI records reflect that Youssef was on sick leave the day of the meeting.

149

D.

CAU Begins Implementing then Abandons a Tracking
System for Legal Process

In early February 2005, CAU personnel began using a new tracking
system for requests to the on-site providers that Rogers had asked to be
implemented. The system, known as the "Tracker Database," was designed
to collect information about each records request to the on-site
communications service providers. The database contained fields to identify
the:
•

communications service provider;

•

request date;

•

CAU requester;

•

pertinent telephone numbers;

•

whether an exigent letter was issued;

•

type of legal process to follow (NSL or grand jury subpoena);

•

records receipt date;

•

contact information for the field or headquarters requester;
and

•

date the CAU received legal process and served it on the

provider.
In an e-mail message to all CAU personnel dated February 2, 2005,
the CAU Intelligence Analyst who was responsible for managing the Tracker
Database wrote that at Rogers's direction all CAU personnel were required
to use the database. The Intelligence Analyst also wrote that there were
"about 100 pending NSL[sl" for which legal process had not yet been issued
to 2 of the 3 on-site providers, Company B and Company C. 187 The
Intelligence Analyst added, "using the [Tracker Database) is not optional
and it's a way for us to cover ourselves in case anyone starts asking
questions."

187 The e-mail message stated that a Company A analyst had not yet provided a list
of record requests (telephone numbers) that required legal process. The e-mail also listed
the number of "pending NSLs," not the number of telephone numbers awaiting follow-up
legal process. As stated above, in January 2005 the Intelligence Analyst responsible for the
tracking system had received a list of 188 telephone numbers which Company B and
Company C had identified as still requiring legal process.

150

The Intelligence Analyst told us that CAU personnel showed little
enthusiasm for using the Tracker Database because they did not want the
responsibility for inputting the data. The Intelligence Analyst said that after
she reported to Youssef several months later that the database was not
being used by CAU personnel, she halted her efforts to implement the
Tracker Database and no other CAU-wide tracking system for identifying the
need for after-the-fact legal process was implemented.
Rogers told us that when Youssef became the CAU's Unit Chief he did
not provide Youssef with any guidance or instructions on how to use exigent
letters or on how to track exigent letters to ensure they were followed up
with after-the-fact legal process. Rogers said he never discussed exigent
letters with Youssef.
Youssef told us that he did not require CAU personnel to use the
Tracker Database. He said that after he received the February 2, 2005,
e-mail from the Intelligence Analyst, he held an "all-hands" meeting at
which the Tracker Database was discussed. He said that at the meeting
there was an "outcry" and that nobody in the CAU (other than the
Intelligence Analyst who designed it) wanted to use the database because it
was too cumbersome. He said that the database "died instantly" because he
told Rogers no one wanted to use it, and Rogers did not instruct him that it
had to be used.
Youssef also told us that when the Tracker Database issue arose in
February 2005 he did not yet know that the CAU was obtaining records
prior to service of legal process. We therefore asked Youssef what he was
thinking at the time about the reference in the Intelligence Analyst's
February 2 e-mail to "100 pending NSLs." Youssef said he could not
remember, but he may have thought "there are NSLs that we still have to
serve. I mean, I did not see it as pending as in NSLs we never got. That was
not my understanding and frankly I do not remember much of this here."

E.

CAU Unit Chief Youssef Learns that the CAU has Obtained
Records in Advance of Legal Process

Youssef told us that he first learned that the CAU was obtaining
records before service of legal process shortly before his first meeting with
the Assistant General Counsel, which we determined occurred on March 11,
2005. On that date, Youssef and two other CAU SSAs met with the
Assistant General Counsel at the off-site location where she was assigned.
He said that he and the SSAs were at the off-site location for another
purpose, and he decided that while there he would introduce himself to her.
Youssef informed Rogers in a contemporaneous e-mail that he had
discussed "streamlining the NSL process" at the March 11 meeting.

151

Youssef said that some time before that meeting. a Company A
analyst told him "in passing" of an instance in which Rogers had requested
records from the analyst prior to service of legal process. The analyst
informed Youssef that Rogers had told the analyst it was an emergency and
that Executive Assistant Director Bald wanted the records. Youssef told us
that based on this information. he informed the Assistant General Counsel
at the March 11 meeting that the CAU "may be in the practice" of obtaining
records without legal process and that he thought it was wrong. Youssef
said that the Assistant General Counsel told him she understood that the
CAU sometimes received emergency requests and obtained information
before serving a legal instrument. Youssef stated that based on the
Assistant General Counsel's comments at the meeting, it was clear to him
that she was already aware that the CAU was obtaining records prior to the
issuance of legal process.
Youssef told us that he did not discuss with the Assistant General
Counsel at the March 11 meeting the CAU's use of exigent letters or the
backlog of records for which legal process had not been issued because he
said that at the time he was unaware of these issues. He told us that he
also was unaware at the time of the frequency of requests to the CAU from
FBI upper management related to telephone records.
Youssef said that sometime after meeting with the Assistant General
Counsel, the on-site Company B employee told Youssef that he had not
received NSLs that were "owed" to him. Youssef told us that he believed this
conversation "probably" occurred right after his meeting with the Assistant
General Counsel, in late March or early April 2005. but that it could have
happened in May 2005. Youssef said that the Company B employee told
him that he was owed over 100 NSLs and that the conversation alarmed
him.
The Company B employee confirmed that he discussed with Youssef
Company B's backlog of records requiring legal process. The Company B
employee said he believed that they had discussed the backlog in early
2005, shortly after Youssef arrived at the CAU. The Company B employee
said that soon after speaking with Youssef about the backlog. at Youssefs
request he began to send e-mails directly to CAU personnel asking for NSLs
to cover the backlog. The Company B employee also said that he went back
to Youssef approximately a month later because he still was not receiving
legal process. He said that in response, Youssef held a unit meeting and
told CAU personnel to get the proper documentation to the on-site
providers.
Youssef told us that after speaking with the Company B employee he
asked CAU personnel about the issue and several of them said they used
exigent letters to obtain records in advance of legal process. Youssef told us

152

that he had heard the term "exigent letters" before, but this was the first
time he was told such letters were used to obtain records from the on-site
providers. He said that the first time he actually saw an exigent letter was
when he signed one in November 2005. 188
Youssef told us that within "a day or two" after learning that the CAU
was using exigent letters and obtaining records prior to issuance of legal
process, he had a conversation with Rogers, who at the time was his
supervisor as the CXS Assistant Section Chief. Youssef said that in this
conversation he told Rogers the practice was "a major issue." According to
Youssef, Rogers was "nonchalant" about the matter. Youssef said that
Rogers told him, "No, this is the procedure. This is how we do it. We can go
get the requests from the phone companies and then we will get the NSLs
later." Youssef said that after the conversation with Rogers, he concluded
that, "if that is what he is telling me ... if I went against it and said we are
not going to use exigent letters for example, I would have been
insubordinate. "
Youssef told us that he did not bring his concern about the CAU
obtaining records from the on-site providers with exigent letters rather than
legal process to anyone else in his supervisory chain of command, other
than Rogers. 189
Rogers told us that Youssef never spoke with him about exigent
letters or the backlog of NSLs. He said Youssef probably learned about
exigent letters, like Rogers did, "when somebody came to him and ... told
him it existed." Rogers said that he never provided any oversight or
guidance to Youssef about the letters.
Youssef also told us that he did not feel he could go above Rogers with
his concerns to CXS Section Chief Laurie Bennett or to the Deputy Assistant

188 Youssef also told us that he did not closely read the exigent letter he signed in
November 2005, and that the first time that he "really scrutinized" an exigent letter was in
May 2006 when he was asked by a CAU Intelligence Analyst to sign another exigent letter.
Youssef said that he then read the exigent letter and realized that it referenced a follow-up
subpoena. He said because the exigent letter referenced a subpoena, he did not sign the
May 2006 letter.
189 In a letter to Senator Charles E. Grassley, dated March 17, 2007, Youssef's
attorney stated that in a CXS Unit Chiefs' meeting, Youssef raised the issue of the CAU's
use of exigent letters to the CXS Section Chief who "was dismissive of the concern."
Youssef told us that Rogers was the Acting CXS Section Chief at this meeting.

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Director (DAD) for CTD, John Lewis. 190 He said that shortly after Bennett
came to the CXS in August 2004, she expressed her dissatisfaction with his
performance as a Unit Chief for the CXS Document Exploitation Unit and
that "within three weeks [of her arrival at CXS], everything I did was wrong."
Youssef also asserted that Bennett began expressing her dissatisfaction with
his performance "within the same wee~ of when his attorney provided a list
of FBI witnesses to be deposed in an connection with an Equal Employment
Opportunity Commission complaint Youssef filed against the FBI. Further,
Youssef said that Bennett's supervisor, DAD John Lewis, also "was after"
him and was "retaliating after me mercilessly." Youssef added that he
believed Lewis was "not going to pay attention to anything that I am saying."
Youssef stated that he never brought his concerns about the exigent letters
practice to anyone else in his chain of command because he "really did not
have access to talk to anybody."
F.

NSLB Attorney Provides Incorrect Advice to the CAU About
the Use of Exigent Letters

On April 26, 2005, the Assistant General Counsel sent an e-mail to
Youssef expressing concern that "on occasion, CAU is presuming that
someone who comes to them [seeking records from the on-site providers]
has an emergency." She instructed Youssef "not [to] assume that all people
who come to you are in an emergency situation" and to ensure that CAU
personnel were "instructed to ask for an NSL." She also reminded Youssef
that if exigent letters were used, the CAU could ask the designated NSLB
attorneys to draft the after-the-fact NSLs. She wrote that the NSLB could do
the NSLs quickly and that she personally would do whatever it took to get
NSLs done in a day or two. Finally, she wrote that "we are willing to allow
these requests when there really are exigent circumstances ... only if it is
clear ... that the requestor cannot await an NSL."
The Assistant General Counsel told us that she could not recall the
circumstances surrounding this e-mail. However, we determined from her
contemporaneous e-mails that her concern arose from an instance in which
a Headquarters operational unit obtained toll billing records from the
Company C on-site analyst using the exigent letter process and then sought
an after-the-fact NSL from the NSLB.191 The Assistant General Counsel was

190 Laurie Bennett was the CXS Section Chief from August 2004 to April 2006.
John Lewis was the CTD DAD from May 2004 to June 2006.
191 After reviewing a draft of this report, Youssefs attorney suggested that the
Assistant General Counsel's April 26, 2005, e-mail was in response to a request from
Youssef for guidance. However, as described above, we determined through
(Cont'd.)

154

initially uncertain about why the exigent letter process was used in this
matter, and the Headquarters operational unit subsequently explained to
her the exigent circumstances that led to the request.
Youssef responded bye-mail on April 27, 2005, that the Assistant
General Counsel was "absolutely right" and that he would instruct the CAU
staff as she had requested. 192 On April 27, Youssef also forwarded the
Assistant General Counsel's e-mail to all CAU personnel and the on-site
communications service providers' employees, directing them to review the
e-mail. Youssef added in his forwarding e-mail, "We all need to differentiate
between what is an exigent request and what is not."
We determined that after Youssef forwarded the Assistant General
Counsel's e-mail to CAU personnel there was a decrease in the number of
exigent letters issued by the CAU, as reflected in Chart 2.3 in Chapter Two
of this report. However, as described in this chapter and in Chapter Two,
field and Headquarters requests to the CAU for records or calling activity
information continued, many of which were communicated to the on-site
providers by informal means other than exigent letters, such as by sneak
peek requests and requests communicated by telephone, e-mail, in-person,
and on post-it notes.
As also discussed below and in Chapter Six, we concluded that the
Assistant General Counsel's statement that an exigent letter was
appropriate when "the requester cannot await an NSL" is inconsistent with
both the ECPA NSL statute and the ECPA emergency voluntary disclosure
statute.

G.

NSLB Fails to Recognize Applicability of the ECPA's
Authority for Emergency Voluntary Disclosures to Requests
Sent to the CAU

On August 25,2005, the FBI OGC issued a guidance memorandum to
all FBI personnel, which described the circumstances in which the ECPA
authorized the disclosure of the content and records of communications
under 18 U.S.C. § 2702(b)(8) and 2702 (c)(4) in emergency circumstances.
The guidance recognized that emergency voluntary disclosures were
"outside of the compulsory process" and stated that such disclosures

contemporaneous e-mails that the Assistant General Counsel's guidance was prompted by
a request from another Headquarters unit, not from Youssef.
192 On April 27, 2005, the Assistant General Counsel forwarded her advice and
Youssefs response to her immediate supervisor and Thomas.

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