|NEW PATRIOT ACT QUESTIONS|
November 7, 2005
MARGARET WARNER: Unbeknownst to most Americans, under the Patriot Act, the government has been issuing tens of thousands so-called "national security letters" to businesses and institutions demanding electronic records, financial and otherwise, about ordinary Americans who deal with those institutions.
The Washington Post broke the story yesterday. Barton Gellman of the Post wrote the story and joins us now from Stanford University, where he's on a journalism fellowship.
Bart, welcome. Explain more fully what a national security letter is. Why don't you use a real life example for us.
BARTON GELLMAN: All right. Well, sometime this summer, two F.B.I. agents showed up in Windsor, Connecticut, and they found a guy named George Christian and they handed him a letter; it said two things.
It said "Give us all the records you have on whoever was using a particular computer in your system." And it said "Do not disclose to any person -- ever -- that you received this letter."
MARGARET WARNER: And the system was in a local library, right? This was a company that sort of, what, provides security for computers in libraries?
BARTON GELLMAN: It provides data services for about three dozen Connecticut public libraries: Circulation records, Internet access, e-mail and so on.
MARGARET WARNER: So what kind of information, if this company, if there Mr. Christian complied, what kind of information would the government have gotten about people who used that particular computer?
BARTON GELLMAN: Well, it depends how the order was interpreted. At minimum, the government would have received, for each of those people who used the computer, where they browse on the Web, what searches they had sent to Google, what e-mail accounts they opened and probably to whom they sent e-mail or received e-mail from.
MARGARET WARNER: Now, what other kinds of institutions are getting letters like these, and how many are there?
BARTON GELLMAN: Well, in the last year for which accounts were collected and, I should mention this account is classified -- it is not released publicly -- there were about 30,000 of these letters issued. That is not a complete count. There's a category of national security letters that's not included, so there were more than that. And each letter is capable of getting the records of tens or hundreds of people. So the number of people whose records have been gathered is certainly in the hundreds of thousands. It goes to phone companies. It goes to banks, casinos, pawn shops -- any broadly defined financial institution or telecommunications provider.
MARGARET WARNER: And now, who has the authority to issue such letters and what standards do they have to use?
BARTON GELLMAN: The FBI does this on its own. Since the Patriot Act, any field office, special agent in charge, so there are about 60 or more FBI agents who are able to authorize these things. They don't need any review by a court. The standard is that the FBI judges the information to be "relevant to" or "sought for" an investigation of terrorism or counterespionage.
MARGARET WARNER: All right. Give us a little more sense of how wide the scope of information is. Let's say you were in e-mail touch with a foreigner in your role as journalist that came under suspicion and the government sent a letter of inquiry to whatever Internet provider that foreigner used. What would the government get about you?
BARTON GELLMAN: Well, first of all, if you are saying the government has demanded records pertaining to the foreigner, the government would know when I wrote e-mail to this target, when the target wrote e-mail to me. The government would also learn my identity, and so the government might very well use a technique called "contact Cheney" to find out who I have been sending e-mail to because the government is interested in establishing networks of coconspirators.
MARGARET WARNER: And then how, under what circumstances would the government be able to get financial information about somebody who was in a secondary position?
BARTON GELLMAN: The standard remains the same -- its relevance. And I should emphasize what happened in the Patriot Act. Before the Patriot Act, these letters existed but the FBI had to say that it had specific and articulable reasons to suspect that the person whose records they wanted was a terrorist or was a spy.
What the Patriot Act did was say you don't have to suspect the person of any wrongdoing. You only have to assert that the information that you want is "relevant to" or you're seeking it for a terrorism investigation. So once they have decided that I'm relevant to an investigation, they can get my banking records, my investment records, my gambling records, if I had any gambling records, as well as my phone and e-mail accounts.
MARGARET WARNER: And why does the FBI say it needs this?
BARTON GELLMAN: The FBI was criticized for failing to connect the dots before 9/11 and failing to detect the plot in advance. It is now casting a pretty wide net. It does not want to be accused of it and it does not want to overlook leads that might lead it to disrupt a plot in advance.
Now, terrorist networks operate in cells. They conceal their activities. If one terrorist wants to talk to another, he often uses a cutout or more than one cutout. And so they are trying to find networks of coconspirators -- and these people, their identities are unknown to the FBI -- they want to find them out. What they say, they are using national security letters to cast this net and to find out, do the people we have just swept up warrant further scrutiny or don't they?
MARGARET WARNER: And finally, briefly, what happens to all this information. Let's say we'll take the example of you e-mailing a person and turns out there is absolutely nothing suspicious or wrong about the person. What happens to the information on you?
BARTON GELLMAN: That's a good question because until two years ago what happened is that the FBI would be legally obliged to destroy the information once it is established that it pertained to an innocent person and no longer a relevant to their investigation. Then Attorney General John Ashcroft in October of 2003 reversed that. He ordered that the FBI keep all records it gathers in all investigations. And he ordered that it be shared with other government agencies. And so what they are doing now is they are working on proposals or on directions to do "data mining" in this where they sift through all the records for unseen patterns.
MARGARET WARNER: All right, Bart Gellman we have to leave it there. Thank you so much.
BARTON GELLMAN: Thank you.