FBI: Data Brokers Probably Act Illegally

Owners of data brokerage firms, from left, Jay Patel, Tim Berndt, Ed Herzog, Colorado State Rep. James Welker, Skipp Porteous, Patrick Baird, Michele Yontef, Steven Schwartz and Carlos Anderson take the oath before the Congressional subcommittee on Oversight and Investigations hearing on Capitol Hill, Wednesday, June 21, 2006. All took the Fifth Amendment and choose not answer any questions from the committee..(AP Photo/Lawrence Jackson) (Lawrence Jackson - AP)

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.