Companies ‘all too willing’ to comply with FBI requests for personal information, EFF says

As the US prepares once again to extend the Patriot Act, a new report from a privacy watchdog indicates that the FBI’s use of the law and other surveillance powers may have led to as many as 40,000 violations of the law by the bureau in the years since 9/11.

According to documents obtained by the Electronic Frontier Foundation, from 2001 to 2008 the FBI reported nearly 800 violations of surveillance law and the Constitution to the Intelligence Oversight Board, a civilian monitoring group that reports to the president.

The EFF also determined that the FBI investigated some 7,000 potential violations of the law that occurred during surveillance operations. The group estimated that, based on the rate of reporting of violations, the FBI may have violated the law as many as 40,000 times during investigations since 9/11.

“The documents suggest the FBI’s intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed,” the EFF stated in its report.

Of the nearly 800 confirmed violations, about one-third involved National Security Letters, which give the FBI the ability to request private information about targeted suspects with little judicial oversight, and under a veil of secrecy that forbids the organization handing over private information from disclosing that the request was even made.

Though NSLs have existed since the late 1970s, federal authorities’ ability to use them was greatly expanded under the post-9/11 Patriot Act. Courts have subsequently weakened the gag-order element of NSLs.

Although lawmakers insisted that Patriot Act provisions would be used specifically in anti-terrorism investigations, it has since emerged that federal authorities have used them far more broadly. For example, “sneak and peek” searches authorized under the Patriot Act have been used in drug investigations.

What was most “startling” to the EFF about the use of security letters was the apparent willingness of companies and organizations to acquiesce to FBI demands, even when legal justifications for the request were absent. In many cases, the EFF reported, organizations handed over more information than the FBI requested, often in violation of privacy laws.

For example, in a violation reported in 2006, the FBI requested email header information for two email addresses used by a U.S. person.

In response, the email service provider returned two CDs containing the full content of all emails in the accounts. The FBI eventually (and properly) sequestered the CDs, notified the email provider of the overproduction, and re-issued an NSL for the originally requested header information; but, in response to the second NSL, the email provider again provided the FBI with the full content of all emails in the accounts.

“The FBI’s abuse of its NSL power has garnered much of the attention in the debate over the FBI’s abusive intelligence practices. What has not received as much attention, however, is the unwillingness of companies and organizations to guard their clients’ and users’ sensitive, personal information in the face of these NSL requests — whether the request was legally justifiable or not,” the EFF report stated.

The Patriot Act, passed into law some six weeks after the 9/11 attacks with little public debate, included “sunset” clauses for some of its more controversial provisions. Those clauses have been routinely expanded by Congress. The latest extension to the Patriot Act expires in February, 2011, and both the House and Senate have introduced bills that would see the controversial provisions expanded to 2013, past the next presidential election.

President Obama, who has already signed one Patriot Act extension into law, is expected to sign this one as well. The Senate version of the extension includes an expansion of judicial oversight of powers given law enforcement under the law.

“While many hoped the era of abusive FBI practices would end with the Bush Administration, there is little evidence that President Obama has taken significant measures to change past intelligence abuses,” the EFF stated.

“Instead of simply rubber-stamping the intelligence community’s continuing abuse of Americans’ civil liberties, Congress should seize this opportunity to investigate the practices of the FBI and other intelligence agencies, and to demand greater accountability, disclosure, and reporting from these agencies,” the EFF added. “Until then, the FBI’s pattern of misconduct will undoubtedly continue.”