FBI Would Skirt the Law With Proposed Phone Record Program, Experts Say

A proposed new FBI program would skirt federal laws by paying private companies to hold millions of phone and Internet records which the bureau is barred from keeping itself, experts say.

The $5 million project would apparently pay private firms to store at least two years' worth of telephone and Internet activity by millions of Americans, few of whom would ever be considered a suspect in any terrorism, intelligence or criminal matter.

The project would involve "the development of data storage and retrieval systems...for at least two years' worth of network calling records," according to an unclassified budget document posted to the FBI's Web site. The FBI did not respond to requests for comment for this story.

The FBI is barred by law from collecting and storing such data if it has no connection to a specific investigation or intelligence matter.

In recent years the bureau has tried to encourage telecommunications firms to voluntarily store such information, but corporations have balked at the cost of keeping records they don't need. 

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"The government isn't allowed to warehouse the information, and the companies don't want to, so this creates a business incentive for the companies to warehouse it, so the government can access it later," said Mike German, a policy expert on national security and privacy issues for the American Civil Liberties Union (ACLU).  Before joining the ACLU, German was a veteran FBI undercover counterterrorism agent.

"It sounds like it circumvents the law," said Lisa Graves, a former deputy assistant attorney general at the U.S. Department of Justice. Graves is now with the non-partisan Center for National Security Studies.

Telecom firms typically retain only 90 days' worth of customer billing records, for collection purposes. The FBI, however, can ask a firm to refrain from destroying records connected to persons of interest in ongoing investigations for extended periods of time.

Last year, with the FBI's encouragement, U.S. lawmakers wrote legislation that would force telecommunications companies to keep years of its data on the FBI's behalf regardless of its connection to open investigations, but the legislation never passed.

Now, experts say, the bureau has swapped the stick for the carrot by offering to pay millions of dollars to three firms if they will keep the records themselves and allow the FBI instantaneous access to the information if it asks.

"It's a public-private partnership that puts civil liberties to the test," said the ACLU's German.

The FBI does not identify the firms in the document, a budget request to Congress, although it said it already has contracts with them to provide information on their customers. In March, an FBI official identified the companies as Verizon, MCI and AT&T.

MCI has since merged into Verizon; neither Verizon nor AT&T immediately responded to requests for comment for this story.

The proposed program would apparently build on existing cooperation between the FBI and the phone companies, which has been faulted for violating laws and internal FBI policies.

In March, the Department of Justice's internal watchdog was harshly critical of the FBI's partnership effort with Verizon, MCI and AT&T, because FBI agents appeared to routinely ignore laws and policies when accessing Americans' phone records.

Even the bureau's own top lawyer said she found the unit's behavior "disturbing," noting that when requesting access to phone company records, it repeatedly referenced "emergency" situations that did not exist, falsely claimed grand juries had subpoenaed information and failed to keep records on much of its own activity.

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