From: NOTES FROM THE INTERCEPT'S SERIES

https://theintercept.com/series/the-fbis-secret-rules/

“Everyone should know that the FBI claims the authority to use extremely intrusive methods to investigate people without any factual basis to suspect that they have engaged in actual wrongdoing"

NATIONAL SECURITY LETTERS

The FBI routinely uses secret orders known as NSL's (national security letters) to demand information that recipients might not actually have to give up

NSL's are among the FBI’s most potent instruments, because they function like subpoenas without requiring the approval of a judge. Internal guidelines suggest that the bureau has been using them to pursue sensitive electronic data and phone records — despite the fact that such attempts overstep the bureau’s legal authority.

The FBI issues thousands of NSLs each year.

They carry the force of law but are created entirely outside the judicial system

To issue, an FBI official just needs to attest that the information sought is relevant to a national security investigation. The letters have also been criticized because they are shrouded in secrecy.

Companies that receive them are for the most part forbidden from notifying their customers or the public. The government has fought to keep even basic rules governing them secret.

The FBI’s internal guidelines suggest that the bureau uses the letters to demand sensitive information on email transactions

Even though the Justice Department has specifically advised the FBI that it does not have the authority to use the letters this way.

The FBI can use national security letters to surveil a “community of interest” by obtaining information from a business about a customer and every person that customer has contacted. This is a controversial practice that the bureau once halted amid scrutiny. But the documents reveal that a secretive unit that mines phone records can still initiate such requests.

Last June, Congress narrowly rejected a proposal to allow the FBI to use the letters to demand information like browsing history, email headers (not including subject lines),

The Newer 2015 DIOG on NSL policy contains a reference to a “model NSL” the FBI uses to request “email transactional” data from companies and other organizations — despite the fact that the organizations are not obligated to provide such information.

The bureau has long used NSLs to obtain basic subscriber information from telecom companies.

The Electronic Communications Privacy Act lists four types of information the bureau is allowed to obtain, including the name of the owner of an account, how long that person has owned it, the person’s address, and toll billing records, which show phone numbers called, the date and time of each call, and the length of each call. Several years ago, the FBI began using the letters to ask for email headers and internet browsing records — assuming that such queries were consistent with the bureau’s right to procure “basic subscriber information.” To that end, the bureau requested a broad category of information it sometimes refers to as “electronic communication transactional records.”

In 2008, Department of Justice lawyers clarified that the FBI didn’t actually have the legal authority to demand that technology companies hand over records outside of the four types listed. However, as The Intercept previously reported, the FBI disagreed with that conclusion and asked for such material anyway in a 2013 NSL it sent to Yahoo.

“The existence of a standard form in the FBI’s NSL system suggests that this is not one or two agents that are misreading the statute, it’s policy,” said Soghoian of the “email transactional NSL.”

ACRONYMS

DIOG -- Domestic Investigations and Operations Guide