FBI Issues New Rules For Getting Phone Records

By John Solomon
Washington Post Staff Writer
Tuesday, March 20, 2007

The FBI, which has been criticized for improperly gathering telephone records in terrorism cases, has told its agents they may still ask phone companies to voluntarily hand over toll records in emergencies by using a new set of procedures, officials said yesterday. In the most dire emergencies, requests can be submitted to the companies verbally, officials said.

This month, the bureau sent field agents a new "emergency letter" template for seeking the records, shortly before the public release of a report by the Justice Department's inspector general that documented abuses of emergency phone-records collection by counterterrorism agents, officials said. That report created a furor on Capitol Hill and prompted FBI Director Robert S. Mueller III to take personal responsibility.

The report documented instances in which agents gathered phone records between 2003 and 2005 using emergency powers when no emergencies existed. It also reported that agents did not follow basic legal requirements, such as certifying that requests for phone records were connected to authorized FBI investigations.

New rules from the FBI general counsel's office tell agents they are to limit emergency requests for phone records to the most dire situations, in which the loss of life or bodily harm is believed to be imminent. They are to document carefully the circumstances surrounding the request.

Agents also have been relieved of a paperwork burden that was at the heart of past problems, officials said.

Under past procedures, agents sent "exigent circumstances letters" to phone companies, seeking toll records by asserting there was an emergency. Then they were expected to issue a grand jury subpoena or a "national security letter," which legally authorized the collection after the fact. Agents often did not follow up with that paperwork, the inspector general's investigation found.

The new instructions tell agents there is no need to follow up with national security letters or subpoenas. The agents are also told that the new letter template is the preferred method in emergencies but that they may make requests orally, with no paperwork sent to phone companies. Such oral requests have been made over the years in terrorism and kidnapping cases, officials said.

"Emergencies will still come up. If we have a child kidnapping or a 'ticking bomb' terrorist threat, we will ask the telecommunications carriers to provide records under the authority provided by law," said FBI Assistant Director John Miller. The new procedures, he said, will include "an audit trail to ensure we are doing it the right way."

The new guidance to agents cites a provision in federal law allowing a telephone provider to voluntarily turn over phone records to law enforcement figures "in good faith" if they "believe that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay," a senior FBI official said.

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