Intelligence Oversight Board: FOIA Documents Detailing Legal ViolationsAs the result of a 2009 Freedom of Information Act (FOIA) Request, EPIC forced disclosure of documents detailing unlawful uses of National Security Letters by law enforcement agents. FBI agents routinely sought documents they had no authority to procure, extended intelligence gathering activities well beyond the expiration of the agency's time-bounded authority to collect information, and failed to comply with legal protections. Additional details are highlighted in the individual documents linked below.
The Intelligence Oversight Board (IOB) is a standing committee of the President's Intelligence Advisory Board, responsible for reviewing activities of the intelligence community. President Ford created the IOB by Executive Order 11905 in order to "to establish effective oversight to assure compliance with law in the management and direction of intelligence agencies and departments of the national government." The White House designed the new measures in response to Congressional investigations that uncovered substantial abuses by intelligence agencies. In 1993, President Clinton amended the program to require inspectors general and counsel throughout the intelligence community to report to the IOB "intelligence activities that they have reason to believe may be unlawful or contrary to Executive Order or Presidential Directive" at least every three months.
In 2005, EPIC requested documents from the Federal Bureau of Investigation (FBI) concerning the Bureau's use of PATRIOT Act powers. In response to EPIC's FOIA, the agency disclosed reports sent from the FBI to the IOB. These reports referenced potential legal violations. EPIC's analysis of these documents revealed at least 42 cases from 2000-2005 in which the FBI's Office of the General Counsel investigated alleged FBI misconduct during intelligence activities and found these matters serious enough to report them to the IOB.
On July 2, 2009, EPIC filed a follow-up FOIA seeking all reports made by the FBI to the IOB and the Director of National Intelligence from January 1, 2006 to present detailing potential legal violations arising out of intelligence gathering activities. EPIC's letter requested:
- Any information concerning the FBI's use of authorities granted or expanded by Sections 206 and 215 of the USA PATRIOT Act from January 1, 2006 to the present.
- Any communications to the Intelligence Oversight Board pursuant to E.O. 13462 regarding incidents constituting a potential legal violation made from January 1, 2006 to present.
- Any communications to the Office of the Director of National Intelligence pursuant to E.O. 13426 regarding incidents constituting a potential legal violation from January 1, 2006 to present.
- Any information or communications concerning the 2009 sunset of USA Patriot ACT provisions.
According to the agency records obtained by EPIC, the FBI used NSLs to:
- Obtain private documents that the agency had no authority to request, including incoming emails, web activity, and log-ins of individuals not under investigation. One FBI agent used login and password information to access a target's account and download data. The agents actions were later determined to constitute an "unauthorized acquisition of information."
- extend the Bureau's surveillance activities well beyond the expiration of its lawful authority to collect information.
- flout procedural protections as mere formalities. Reports detail numerous incidents of failures to include legally required certifications in NSLs. In one reported incident, an officer hand-wrote an unlawful amendment onto a printed NSL, evading supervisor review.
- request a target's social security number from a third party without explicit legal authority to do so.
- claim the authority to request documents on behalf of officials who have no such authority.
- compounding overreaching requests, and third parties' overproduction of data, by uploading and processing materials that the agency had no authority to access.
- delaying any formal record of such abuses, often for a full year or longer. The Intelligence Oversight Board concluded that such failures to report "substantially impaired" the Board's ability to provide meaningful oversight.
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Communications Law and Policy
Jerry Kang and Alan Butler