The FBI increasingly has used administrative orders to obtain the personal records of U.S. citizens rather than foreigners implicated in terrorism or counterintelligence investigations, say two government audits reported by the Washington Post. At least once it relied on such orders to obtain records that a special intelligence-gathering court had deemed protected by the First Amendment. A Justice Department report concluded the FBI had abused its intelligence-gathering privileges by issuing inadequately documented “national security letters” from 2003 to 2006, after which changes were put in place that the report called sound.
Because U.S. citizens enjoy constitutional protections against unreasonable searches and seizures, judicial warrants are ordinarily required for government surveillance. National security letters are approved only by FBI officials and are not subject to judicial approval; they routinely demand certain types of personal data, such as telephone, e-mail, and financial records, while barring the recipient from disclosing that the information was requested or supplied. Justice Department Inspector General Glenn Fine said the FBI tried to work around the Foreign Intelligence Surveillance Court, which oversees clandestine spying in the U.S., after it twice rejected an FBI request in 2006 to obtain certain records. The court had concluded “the ‘facts’ were too thin” and the “request implicated the target’s First Amendment rights,” the report said. The FBI got the records anyway by using a national security letter.