NYT: F.B.I. Is Broadening Surveillance Role, Report Shows

http://www.nytimes.com/2015/01/12/us/politics/beyond-nsa-fbi-is-assuming-a-larger-surveillance-role-report-shows.html

JAN. 11, 2015

F.B.I. Is Broadening Surveillance Role, Report Shows

By CHARLIE SAVAGE

WASHINGTON -- Although the government's warrantless surveillance program is associated with the National Security Agency, the Federal Bureau of Investigation has gradually become a significant player in administering it, a newly declassified report shows.

In 2008, according to the report, the F.B.I. assumed the power to review email accounts the N.S.A. wanted to collect through the "Prism" system, which collects emails of foreigners from providers like Yahoo and Google. The bureau's top lawyer, Valerie E. Caproni, who is now a Federal District Court judge, developed procedures to make sure no such accounts belonged to Americans.

Then, in October 2009, the F.B.I. started retaining copies of unprocessed communications gathered without a warrant to analyze for its own purposes. And in April 2012, the bureau began nominating new email accounts and phone numbers belonging to foreigners for collection, including through the N.S.A.'s "upstream" system, which collects communications transiting network switches.

That information is in a 231-page study by the Justice Department's inspector general about the F.B.I.'s activities under the FISA Amendments Act of 2008, which authorized the surveillance program. The report was entirely classified [1] when completed in September 2012. But the government has now made a semi-redacted version of the report public [2] in response to a Freedom of Information Act lawsuit filed by The New York Times.

The Times filed the lawsuit after a wave of declassifications about government surveillance activities in response to leaks by the former intelligence contractor Edward J. Snowden.

The report was delivered late Friday to The Times. In it, the inspector general, Michael E. Horowitz, concluded that the F.B.I. was doing a good job in making sure that the email accounts targeted for warrantless collection belonged to noncitizens abroad.

But parts of the report remained heavily redacted. For example, there was only one uncensored reference to the Prism system. It was not clear why the Justice Department had redacted all the other references to Prism in the report; the name of that program and many details about it have been declassified and were discussed in a July 2014 report by the Privacy and Civil Liberties Oversight Board.

David McCraw, a Times lawyer, said the newspaper may challenge the redactions at a later stage in the Freedom of Information Act litigation.

The report also filled in a gap about the evolving legality of the warrantless wiretapping program, which traces back to a decision by President George W. Bush in October 2001 to direct the N.S.A. to collect Americans' international phone calls and emails, from network locations on domestic soil, without the individual warrants required by the Foreign Intelligence Surveillance Act, or FISA. The Times revealed that program [3] in December 2005.

After the article appeared, telecommunications providers that had voluntarily participated in the program were sued, and a Federal District Court judge in Detroit ruled that the program was illegal, although that decision was later vacated. The Bush administration sought to put the program on more solid legal footing by gaining orders from the Foreign Intelligence Surveillance Court approving it.

In January 2007, the Bush administration persuaded the court's Judge Malcolm Howard to issue an order to telephone and network companies requiring them to let the security agency target foreigners' accounts for collection without individual warrants. But in April 2007, when the order came up for renewal before Judge Roger Vinson, he said that it was illegal.

Judge Vinson's resistance led Congress to enact, in August 2007, the Protect America Act, a temporary law permitting warrantless surveillance of foreigners from domestic network locations. The next year, Congress replaced that law with the FISA Amendments Act.

Last month, as a result of separate Freedom of Information Act lawsuits by The Times and the Electronic Frontier Foundation, the government declassified the identities of the judges [4] who disagreed in early 2007 and several court filings from that episode. But it remained unclear what the N.S.A. had done in June and July of 2007.

The newly declassified report said Judge Vinson issued an order on May 31, 2007, that allowed existing surveillance to continue by approving collection on a long list of specific foreign phone numbers and email addresses. But after that, when the agency wanted to start wiretapping an additional person, it had to ask the court for permission.

The report said that "the rigorous nature of the FISA Court's probable cause review of new selectors submitted to the various FISA Court judges following Judge Vinson's May 31, 2007, order caused the N.S.A. to place fewer foreign selectors under coverage than it wanted to." That and other factors "combined to accelerate the government's efforts" to persuade Congress to enact the Protect America Act.

[1] http://www.justice.gov/oig/press/2012/2012_09_25.pdf

[2] http://www.nytimes.com/interactive/2015/01/12/us/12-doj-ig-fbi-702-foia.html

[3] http://www.nytimes.com/2005/12/16/politics/16program.html

[4] http://www.nytimes.com/2014/12/13/us/politics/documents-shed-new-light-on-legal-wrangling-over-spying-in-us-.html