FBI: Data Brokers Probably Act Illegally
The Associated Press
Thursday 22 June 2006
Washington - Despite the use of private data brokers by federal and local law enforcement agencies, the FBI said Thursday that practices by such companies to gather Americans' private telephone records without warrants or subpoenas are almost certainly illegal.
A senior FBI lawyer, Elaine N. Lammert, told lawmakers the bureau was still surveying agents around the U.S. but so far has found no "systemic" use of data brokers by the FBI seeking telephone records or other information without warrants or subpoenas.
Lammert, the bureau's deputy general counsel for its investigative law branch, told a congressional panel: "There are compelling reasons for the government to believe that these operations violate federal law."
Lawmakers agreed. Police use of such data brokers "might compromise sensitive law enforcement information, compromise operational security or maybe just violate the Constitution," said Rep. Joe Barton, R-Texas, head of the House Energy and Commerce Committee.
"Even though it may be tougher to go get a warrant, get a subpoena, that's the way the good guys do these things," Barton said.
Internal corporate documents turned over to Congress by some data brokers include e-mails in which workers described efforts to impersonate targets of investigations to trick telephone carriers into revealing private calling records.
"By lying about their true identity - perhaps by claiming that they are a fellow employee, or that they are the customer or the customer's representative - they manage to acquire statutorily protected information to which they have absolutely no right," Lammert said in prepared testimony.
Lammert said one data broker, in a test, obtained the FBI's own telephone records, prompting bureau-wide warnings about the risks to undercover agents.
"It is easy to imagine how this type of data theft can negatively impact ongoing investigations," she said.
The AP reported Tuesday that numerous federal and local law enforcement agencies have bypassed subpoenas and warrants designed to protect civil liberties and gathered phone records from data brokers, who nearly always turned over the information for free.
"There is no compelling law enforcement need to obtain confidential records from Internet data brokers," a Miami-Dade police official, Raul Ubieta, told lawmakers. Ubieta said a request by a Miami-Dade detective in July for cellular phone records was out of line.
At a related congressional hearing earlier this week, David Gandal of Loveland, Colo., who traces deadbeats who default on car loans, testified that he once provided phone information to an FBI agent. Gandal also said a prominent data broker, Jim Welker of Universal Communications Co., boasted to him about working closely with FBI agents.
Welker, who also appeared at the hearing, cited his Fifth Amendment rights against self-incrimination and declined to answer questions from lawmakers.
Lammert said the FBI agent who worked with Gandal was inexperienced and that he was instructed by his supervisor afterward not to do it again.
A federal agent who acknowledged requesting phone records from data brokers without warrants or subpoenas told AP that he learned about such services from FBI investigators, who vouched for their use. The agent spoke on condition of anonymity because he is not authorized to speak with reporters.
A senior official with U.S. Immigration and Customs Enforcement, Paul Kilcoyne, acknowledged Thursday at least four agents in Denver had requested subscriber information from data brokers, but an internal investigation determined that none of the agents had acted improperly.
"How these people (data brokers) get the information has been what is surprising to us," said Kilcoyne, the deputy assistant director for the investigative services division.
Kilcoyne told Rep. Ed Whitfield, R-Ky., the agents in Denver learned about the data brokers from colleagues in the FBI and Postal Inspection Service.
The agency has recommended that agents in Denver not use those data brokers in the future and is working on guidelines for making such requests, Kilcoyne said.
A Drug Enforcement Administration official, Ava Cooper Davis, said DEA's policies describe only authorized methods for obtaining telephone records, such as through subpoenas. A South Dakota police investigator assigned to a DEA task force in Iowa made at least three requests for phone records using data brokers, according to documents obtained by AP.
An assistant police chief in Austin, Texas, David L. Carter, told lawmakers his department was investigating its officers' use of data brokers but said there was no evidence so far that detectives had done anything illegal.
Internal documents from PDJ Investigations of Granbury, Texas, showed an Austin investigator sought cellular telephone records on two people in April who might have witnessed an assault. "Please work your magic and advise us of your findings," the investigator wrote in her request.
Carter said Austin police are now permitted only to use data brokers vetted by the department.