Covert FBI Power to Obtain Phone Data Faces Rare Test

The Wall Street Journal:

Early last year, the Federal Bureau of Investigation sent a secret letter to a phone company demanding that it turn over customer records for an investigation. The phone company then did something almost unheard of: It fought the letter in court.

The U.S. Department of Justice fired back with a serious accusation. It filed a civil complaint claiming that the company, by not handing over its files, was interfering "with the United States' sovereign interests" in national security.

The legal clash represents a rare and significant test of an investigative tool strengthened by the USA Patriot Act, the counterterrorism law enacted after the attacks of Sept. 11, 2001.

The case is shrouded in secrecy. The person at the company who received the government's request—known as a "national security letter," or NSL—is legally barred from acknowledging the case, or even the letter's existence, to almost anyone but company lawyers.

"This is the most important national-security-letter case" in years, said Stephen Vladeck, a professor and expert on terrorism law at the American University Washington College of Law. "It raises a question Congress has been trying to answer: How do you protect the First Amendment rights of an NSL recipient at the same time as you protect the government's interest in secrecy?"

The confidentiality requirements make it impossible to definitively identify the company fighting the case. Its name and other identifying details have been redacted in court documents obtained by The Wall Street Journal.

The phone company's lawyer declined to name his client or respond to questions about its identity.

There are thousands of telecom companies in the U.S. However, the court papers offer clues that can be used to narrow down the list. The Journal cross-referenced the court papers against corporate websites and Federal Communications Commission records of telecom firms, and identified five firms that appeared to be possible matches with the company described in the case.

Four of the five companies denied any involvement in the case and declined to be interviewed about national security letters. At the fifth company, a top executive declined to confirm or deny, either on or off the record, whether his firm had received an NSL or is involved in the case.

That company, Working Assets Inc., runs a San Francisco-based telecom subsidiary called Credo, and uses some of its revenue to support liberal causes. The chief executive of Credo, Michael Kieschnick, offered his firm's view, in general terms, of these types of government requests. "There is a tension between privacy and the legitimate security needs of the country," he said. "We think it is best to resolve this through grand jury or judicial oversight."

Unlike search warrants, NSLs don't require a judge's oversight.

National security letters, which date back to the 1980s, have become more common since the passage of the Patriot Act, which expanded the government's ability to use them to collect information about people. As long as the head of an FBI field office certifies that the records would be relevant to a counterterrorism investigation, the bureau can send an NSL request without the backing of a judge or grand jury.

Full article can be found here.

State Seeks to Expand Secret Tracking Program that Uses Cellphones, GPS

By Alexia Campbell from the Sun Sentinel:

Florida wants to expand a secret surveillance program that uses GPS cellphone tracking and other new tracking technology to help police solve violent crimes.

The Florida Department of Law Enforcement's Electronic Surveillance Support Teams have operated under the radar since the first one launched in the Orlando area in 2007. The teams have since spread to South Florida and all across the state, records show, and rising police requests for surveillance have led the department to push for $1.7 million to expand the program.

Although little is known about how agents on these teams use the high-tech surveillance equipment to help police, state records show that locating criminal suspects with GPS locators on smartphones is a common practice.

"We prefer people not to know who they are, where they are or how they are operating," said FDLE Assistant Commissioner Jim Madden, who oversees the department's investigations.

Some secrecy is needed to ensure criminals don't outsmart investigators, Madden said. But civil liberties advocates have argued that nationwide police use of cell phone tracking technology raises legal and constitutional questions, especially when investigators act without a judge's order.

In January, the U.S. Supreme Court ruled that police must get a warrant from a judge before planting a GPS tracker on a car. But the ruling didn't address police use of GPS for cell phone tracking, leaving it in a gray legal area, according to the American Civil Liberties Union.

"The threat to personal privacy presented by this technology is breathtaking," according to a recent ACLU study about the widespread police use of cell phone tracking without a warrant.

Madden said FDLE always seeks judicial approval to trail someone with GPS, but its written policy for using GPS devices instructs agents to show probable cause for criminal activity to the department's legal counsel to see if a court order is necessary.

Local law enforcement agencies made 171 requests for surveillance support from FDLE's South Florida team in fiscal year 2011-2012, the department said. It's the first year the Miami regional office has kept tabs on the numbers.

Some local police agencies who work with the surveillance and tracking teams are hesitant to describe how it works.

Hollywood Police detectives have worked with them for years, and they credit state agents with helping them hunt down murderers who might otherwise elude them, said Police Sgt. Lyle Bien, who works in the homicide unit.

"We don't have the resources or individuals trained to do this," Bien said. "Technology has gotten so good, they can pinpoint the house where a phone is located."

These type of high-tech tools helped Hollywood homicide detectives find a woman wanted for the December murder of a 69-year-old man found dead in a motel. FDLE's local surveillance team led detectives to Mary Meegan, 44, who was living at a homeless shelter in the Florida Keys.

Although state surveillance teams focus on violent crimes, they will take on some emergency cases, such as child abductions.

In February, the local team located a Delray Beach girl, 17, who was reportedly kidnapped. She texted her mother in the morning that she was being held captive in the trunk of a car.

Within a few hours, Delray Beach detectives asked FDLE's surveillance team to help find her, state records show. By 1:30 that afternoon, FDLE agents knew she was likely somewhere in the El Paraiso motel in Hialeah. They soon found her in one of the motel rooms, holed up with a young man. The teen later admitted she lied about the kidnapping to her parents so she could skip school to rendezvous with a man she met online.

Which tracking method FDLE used to find the girl is unclear, and both police and state authorities declined to discuss it.

Records show that the state surveillance teams also provide wiretapping, GPS car tracking and audio and video surveillance support. The Palm Beach County Sheriff's Office, the Broward Sheriff's Office and Davie Police are among many local agencies who have worked with them, FDLE said.

The number of requests for surveillance help has skyrocketed in recent years, said Madden, of the FDLE. That's why he asked for $1.7 million to expand the program. Aside from buying more equipment, the money would pay for hiring 12 more special agents to relieve the work load, he said.

"I pay out what I consider an enormous amount of overtime," Madden said. "We are running these folks constantly all over the state."

The budget request was denied, but Madden said he will push for it again in next year's budget.

The advances in technology have given investigators a power they didn't have before, Madden said. That's why it's important for people to know that it's only used in criminal investigations, he said, and agents must show probable cause to trail a criminal suspect.

"One thing I hope that people understand is that we're not going out on a fishing expedition," he said. "It's not Big Brother watching everybody. I firmly believe that with this technology, we're saving lives. It may sound melodramatic, but it's the truth."

NPR Supreme Court Recap

Oh what a term it was! NPR prepared a recap of the term including the incredible last ten days, and Justice Roberts trip to Malta. Full story here:

NPR reports that the justices of the U.S. Supreme Court have fled Washington, leaving in their wake a storm of historic headlines. In the last 10 days alone, the high court upheld the Obama health care law, struck down much of the Arizona immigration law and ruled unconstitutional mandatory sentences of life without parole for juveniles convicted of murder. Chief Justice John Roberts is in Malta, a place that, as he pointed out, is "an impregnable island fortress." He puckishly observed that it "seemed like a good idea" to go there after the tumultuous end of the Supreme Court term.