FBI's top lawyer defends data-dragnet powers

Patriot Act is vital in aiding investigations into attacks such as the London subway bombing, the FBI's general counsel says.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
2 min read

NEW YORK--The FBI's top lawyer defended the Patriot Act on Wednesday, saying the bureau's increased powers are vital to aiding investigations into attacks such as the London subway bombing.

FBI general counsel Valerie Caproni said during a conference at New York University's law school that the 2001 changes to the Patriot Act involving national security letters (NSLs) were crucial to accessing phone records. NSLs are subpoena-like orders that the FBI can use to obtain information about companies' customers.

(Disclosure: I spoke also at the conference, titled "Privacy in the Age of National Security," later that day. It was organized by NYU law school's Center on Law and Security.)

Caproni, a former federal prosecutor who took her current position in 2003, said that after the July 2005 subway bombings in London--which killed dozens of commuters and injured hundreds more--the British security service gave the United States "lots" of phone numbers called by the suspected perpetrators.

"Was it appropriate to use national security letters to gather the phone records of people who were in direct contact with the British bombers?" she asked.

Caproni was alluding to the pre-Patriot Act requirement that the FBI needed "specific and articulable facts" that the information was related to an "agent of a foreign power" before an NSL could legally be used. Previously, only the FBI headquarters could issue NSLs.

Post-Patriot Act, any FBI field office can send NSLs, and the new requirement is that they be only "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities."

Some of the other conference speakers (no, it wasn't me) had criticized that altered requirement in the Patriot Act. Caproni took issue with such criticism. "How could we have done it (otherwise)?" she asked. "We actually didn't know that someone who was in contact with the British bomber was a terrorist... It was relevant but we didn't have 'specific and articulable facts.'"

It's a fair point, and worth debating openly. It's true that one of the effects of reverting back to the pre-Patriot Act language would be limiting the FBI's ability to do certain types of data-dragnet investigations.

At the same time, if history is any indication, there are likely plenty of FBI investigations that aren't as clear-cut and that are more intrusive or invasive. And we do know, thanks to the Justice Department's inspector general, that the FBI already has seriously misused its post-Patriot Act NSL authority--which indicates that limiting data-dragnets may benefit Americans' privacy more than it hurts the FBI.