This Executive Summary provides a brief overview of the results of the Department of Justice (Department or DOJ) Office of the Inspector General’s (OIG) third review of the Federal Bureau of Investigation’s (FBI) use of the investigative authority granted by Section 215 of the Patriot Act. Section 215 is often referred to as the “business record” provision. The OIG’s first report, A Review of the Federal Bureau of Investigation’s Use of Section 215 Orders for Business Records, was issued in March 2007 and covered calendar years 2002 through 2005. The OIG’s second report, A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006, was issued in March 2008 and covered calendar year 2006. This third review was initiated to examine the progress the Department and the FBI have made in addressing the OIG recommendations which were included in our second report. We also reviewed the FBI’s use of Section 215 authority in calendar years 2007, 2008, and 2009.
Section 215 is designed to enable the FBI to acquire records that a business has in its possession, as part of an FBI investigation, when those records are relevant to the investigation. Yet the operation of the NSA’s bulk telephone records program bears almost no resemblance to that description. While the Board believes that this program has been conducted in good faith to vigorously pursue the government’s counterterrorism mission and appreciates the government’s efforts to bring the program under the oversight of the FISA court, the Board concludes that Section 215 does not provide an adequate legal basis to support the program. There are four grounds upon which we find that the telephone records program fails to comply with Section 215. First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk — potentially encompassing all telephone calling records across the nation — they cannot be regarded as “relevant” to any FBI investigation as required by the statute without redefining the word relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records. Third, the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated (instead of turning over records already in their possession) — an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole. Fourth, the statute permits only the FBI to obtain items for use in its investigations; it does not authorize the NSA to collect anything.
This white paper explains the Government’s legal basis for an intelligence collection program under which the Federal Bureau of Investigation (FBI) obtains court orders directing certain telecommunications service providers to produce telephony metadata in bulk. The bulk metadata is stored, queried and analyzed by the National Security Agency (NSA) for counterterrorism purposes. The Foreign Intelligence Surveillance Court (“the FISC” or “the Court”) authorizes this program under the “business records” provision of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1861, enacted as section 215 of the USA PATRIOT Act (Section 215). The Court first authorized the program in 2006, and it has since been renewed thirty-four times under orders issued by fourteen different FISC judges. This paper explains why the telephony metadata collection program, subject to the restrictions imposed by the Court, is consistent with the Constitution and the standards set forth by Congress in Section 215. Because aspects of this program remain classified, there are limits to what can be said publicly about the facts underlying its legal authorization. This paper is an effort to provide as much information as possible to the public concerning the legal authority for this program, consistent with the need to protect national security, including intelligence sources and methods. While this paper summarizes the legal basis for the program, it is not intended to be an exhaustive analysis of the program or the legal arguments or authorities in support of it.
The Federal Bureau of Investigation (FBI, the Bureau) is the lead federal law enforcement agency charged with counterterrorism investigations. Since the September 11, 2001 (9/11) attacks, the FBI has implemented a series of reforms intended to transform itself from a largely reactive law enforcement agency focused on investigations of criminal activity into a more proactive, agile, flexible, and intelligence-driven agency that can prevent acts of terrorism.
Shortly after the 9/11 terrorist attacks, Congress enacted the USA PATRIOT Act, in part, to “provid[e] enhanced investigative tools” to “assist in the prevention of future terrorist activities and the preliminary acts and crimes which further such activities.” To that end, the Act eased restrictions on the government’s ability to collect information regarding people’s activities and conversations, both in domestic criminal investigations and in the realms of foreign intelligence gathering and national security.