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New FBI Terror Probe Guidelines Demand Stronger Review To Protect Americans' Privacy

Updated:
WASHINGTON (AP) _ The FBI is warning its agents to protect privacy rights by carefully reviewing all personal data collected from Americans in terror investigations and to remember such evidence may not remain secret.

The warning came in draft FBI guidelines to be issued to correct abuses of so-called national security letters that were revealed in a Justice Department audit three months ago. The letters allow investigators to subpoena records, without court approval, in terrorism and spy cases.

But the stern reminder hasn't appeased civil liberties advocates who want Congress to rein in the FBI's power to obtain consumers' telephone, Internet and financial records.

``The government should have never had such expansive power to begin with,'' Caroline Fredrickson, director of the American Civil Liberties Union's legislative office in Washington, said Thursday. ``Current and past administrations have demonstrated that government power exercised in secret will always be abused.''

The 24 pages of guidelines came as a new FBI audit of national security letters found more than 1,000 possible violations since 2002. The majority of the abuses, however, were made by companies that gave more information than the FBI sought, said a law enforcement official who spoke on condition of anonymity because the audit has not yet been made public.

The FBI's audit sampled about 10 percent of the tens of thousands of NSLs that have been issued from its 56 field offices nationwide. In 2005, for example, the FBI issued 19,000 NSLs seeking 47,000 records, the official said. But investigators found only about two dozen possible violations among the NSLs issued that year, according to the audit, which was first reported by The Washington Post.

In a statement, FBI Assistant Director John Miller said the new audit found the same problems identified by the Justice Department's initial report in March, but ``the numbers are larger because we looked through a larger sampling.'' He said FBI Director Robert S. Mueller is creating a compliance office to conduct spot checks of NSLs ``so that any pattern of mistakes will be identified quickly and remedied quickly.''

Rep. Edward Markey, D-Mass., called anew Thursday for congressional hearings to examine the violations.

``Tracking terrorists and thwarting attacks is absolutely essential, but when our law enforcement agents ignore the laws intended to protect Americans' civil liberties, they undermine public confidence in our legal system and potentially ensnare innocent Americans in terrorism investigations,'' Markey said in a statement.

The draft guidelines, dated June 1 and made public Wednesday, intend to prevent any new abuses by clarifying the law to agents. They remind investigators to request specific information _ and justify its need.

Moreover, the strictly worded rules require all evidence received from the subpoena to be reviewed before it is uploaded into FBI databases to make sure that only the information specifically requested is used. Any irrelevant or extra material received will be locked away from investigators and, potentially, returned or destroyed.

``Receiving information beyond the scope of an NSL is a potential ... violation, regardless of whether the overproduction occurred as a result of an error by the FBI or the NSL recipient,'' the guidelines state.

Under the Patriot Act, the national security letters give the FBI authority to demand that telephone companies, Internet service providers, banks, credit bureaus and other businesses produce personal records about their customers or subscribers.

The March audit, by Justice Department Inspector General Glenn A. Fine, found that FBI agents sometimes demanded personal data on U.S. citizens or legal residents without official authorization and in other cases improperly obtained telephone records in non-emergencies. The audit, which looked at NSLs issued between 2003 and 2005, also concluded that the FBI underreported to Congress how often it used national security letters to ask businesses to turn over customer data.

The newly released guidelines also:

_Eliminate use of so-called exigent letters to demand information from companies in emergencies without being authorized by an NSL. Agents may still ask for the information in cases of ``death or danger or serious physical injury,'' but companies cannot be forced to comply.

_Require that cover letters for NSLs not merely contain ``bare bones'' information to justify the need for the data. Typos and other erroneous information in the cover letter or NSL that, for example, could lead to unneeded data being released will be investigated and potentially penalized. Additionally, agents cannot request information on activities that are covered by the First Amendment, such as attending a mosque. While the cover letters are usually classified, the NSLs themselves and the data received in return are not necessarily.

_Require agents to lay out reasons the request must remain secret, keeping in mind that ``non-disclosure is not required in all NSLs.'' However, the guidelines note that ``the statutory standard for non-disclosure will be met in most cases'' _ including when there is concern that revealing an investigation would tip off its targeted suspect.

_Require FBI attorneys to carefully review all NSL requests.
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