A report released by The New York Times on Wednesday revealed that the FBI, under Director James Comey's leadership, used a secret program that does not require the approval of a judge to gather phone records and "other documents" on Donald Trump's presidential campaign.
The F.B.I. obtained phone records and other documents using national security letters — a secret type of subpoena — officials said. And at least one government informant met several times with Mr. Page and Mr. Papadopoulos, current and former officials said. That has become a politically contentious point, with Mr. Trump’s allies questioning whether the F.B.I. was spying on the Trump campaign or trying to entrap campaign officials.
National security letters (NSL) are secret orders that the FBI uses on a regular basis to obtain sensitive electronic data and phone records. The Intercept reports:
They are controversial in part because they carry the force of law but are created entirely outside the judicial system: To issue one, an FBI official just needs to attest that the information sought is relevant to a national security investigation. The letters have also been criticized because they are shrouded in secrecy. Companies that receive them are for the most part forbidden from notifying their customers or the public. The government has fought to keep even basic rules governing them secret.
Companies that receive NSLs might not be legally required to hand over the information demanded by the FBI. The Intercept continues:
The FBI’s internal guidelines suggest that the bureau uses the letters to demand sensitive information on email transactions — even though the Justice Department has specifically advised the FBI that it does not have the authority to use the letters this way. The documents also indicate that the FBI can use national security letters to surveil a “community of interest” by obtaining information from a business about a customer and every person that customer has contacted. This is a controversial practice that the bureau once halted amid scrutiny. But the documents reveal that a secretive unit that mines phone records can still initiate such requests.
The most recent document on national security letter policy was made public on January 31, 2017, by The Intercept and reveals which FBI officials have the authority to sign NSLs. The Director has delegated the authority to sign NSLs and to certify the nondisclosure requirement to the following FBI officials:
- Deputy Director
- Executive Assistant Director
- Assistant EAD for the National Security Branch
- Assistant Directors and all DADs for CT, CI, CyD, and the Weapons of Mass Destruction Directorate
- General Counsel
- Deputy General Counsel for the National Security Law Branch
- Assistant Directors in Charge in NY, LA, and D.C.
- All Special Agents in Charge (SAC)
The Electronic Communications Privacy Act lists four types of information that the FBI is allowed to obtain using NSLs, as noted by The Intercept:
- Name of the owner of an account
- How long that person has owned it
- The person’s address
- Toll billing records, which reveal phone numbers that are called and include the date, time, and length of each call
The Intercept further noted that lawyers with the Justice Department specifically stated in 2008 that the FBI did not have the legal authority to demand that tech companies hand over records beyond the four types listed, but "FBI agents may have expected that other companies, especially small ones, would be too ignorant or weak to fight back."