A recently released FBI memo provides the latest evidence that the Bureau has frequently overstepped its legal bounds when conducting intrusive national security surveillance. The document, which was written in April 2000 and originally classified as "secret," reveals that FBI agents illegally videotaped suspects, intercepted e-mail without court permission, recorded the wrong phone conversations, and conducted "unauthorized searches." The incidents detailed in the memo involved cases requiring warrants under the Foreign Intelligence Surveillance Act (FISA).
The declassified document was obtained by Rep. William Delahunt (D-MA), with the assistance of EPIC. The existence of the memo was first revealed in an FBI document obtained by EPIC earlier this year through its Freedom of Information Act lawsuit for information concerning the Bureau's controversial Carnivore Internet surveillance system (see EPIC Alert 9.11). That earlier disclosure, which showed that an anti-terrorism investigation involving Osama bin Laden was hampered by technical flaws in the Carnivore system, alluded to a separate document discussing other "FISA mistakes." EPIC worked with Rep. Delahunt's office to seek disclosure of the "mistakes" memo.
The latest disclosure comes as the Foreign Intelligence Surveillance Court of Review (FISCR), in its first proceeding since being created in 1978, is considering the legality of new Justice Department surveillance rules. DOJ has asked the FISCR to overturn a decision of the Foreign Intelligence Surveillance Court, which in May unanimously rejected the government's bid for expanded powers. In its decision, the intelligence court documented abuses of "national security" warrants by both the Bush and Clinton Administrations, including serious errors in approximately 75 applications for foreign intelligence surveillance (see EPIC Alert 9.16).
The newly disclosed "mistakes" memo reveals errors that extend beyond those detailed by the surveillance court in May, which concerned FBI misrepresentations in applications for surveillance warrants. The new "mistakes" involve the manner in which surveillance activities were actually conducted, a potentially more serious issue as the incidents appear to involve violations of both FISA and the Fourth Amendment.
The FBI "FISA mistakes" memo is available at:
http://www.epic.org/privacy/terrorism/fisa/FISA-mistakes.pdf
Background information (including selected documents) on EPIC's Carnivore FOIA litigation is available at:
http://www.epic.org/privacy/carnivore/
Background information on FISA is available at:
http://www.epic.org/privacy/terrorism/fisa/
_________________________________ Steven