[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
  REPORT BY THE OFFICE OF THE INSPECTOR GENERAL OF THE DEPARTMENT OF 
JUSTICE ON THE FEDERAL BUREAU OF INVESTIGATION'S USE OF EXIGENT LETTERS 
           AND OTHER INFORMAL REQUESTS FOR TELEPHONE RECORDS 

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 14, 2010

                               __________

                           Serial No. 111-85

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               STEVE KING, Iowa
HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
  Georgia                            LOUIE GOHMERT, Texas
PEDRO PIERLUISI, Puerto Rico         JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois               TED POE, Texas
JUDY CHU, California                 JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin             GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel




















                            C O N T E N T S

                              ----------                              

                             APRIL 14, 2010

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     4

                               WITNESSES

The Honorable Glenn Fine, Inspector General, U.S. Department of 
  Justice
  Oral Testimony.................................................     9
  Prepared Statement.............................................    11
Ms. Valerie E. Caproni, General Counsel, Federal Bureau of 
  Investigation
  Oral Testimony.................................................    24
  Prepared Statement.............................................    26

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................     6


  REPORT BY THE OFFICE OF THE INSPECTOR GENERAL OF THE DEPARTMENT OF 
JUSTICE ON THE FEDERAL BUREAU OF INVESTIGATION'S USE OF EXIGENT LETTERS 
           AND OTHER INFORMAL REQUESTS FOR TELEPHONE RECORDS

                              ----------                              


                       WEDNESDAY, APRIL 14, 2010

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:09 a.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Conyers, Johnson, Cohen, 
Chu, Sensenbrenner, and King.
    Staff present: (Majority) David Lachmann, Subcommittee 
Chief of Staff; Elliot Mincberg, Counsel; and Paul Taylor, 
Minority Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will come to 
order. I will begin by recognizing myself for an opening 
statement.
    Today's hearing examines the latest report by the inspector 
general of the Justice Department on the use of exigent letters 
and other informal requests for telephone records by the 
Federal Bureau of Investigation. This report follows two 
earlier reports by the IG's office in March 2007 and March 2008 
on the use of national security letters, which did not look at 
the use of exigent letters in depth.
    This latest report does just that. The findings are 
disturbing. They detail hundreds of instances in which the FBI 
violated the law and its own internal rules concerning the 
collection of telephone records. The inspector general 
identified violations of the Electronic Communications Privacy 
Act, otherwise known as ECPA, as well as of the USA PATRIOT 
Improvement and Reauthorization Act of 2005.
    Even more disturbing, this is not the first time we have 
had to have the inspector general and the FBI here to explain 
why the law was violated, why the privacy of law-abiding 
Americans was illegally invaded, and at this point why repeated 
assurances that the problem was solved apparently amounted to 
very little.
    While it should be reassuring that the practice of issuing 
exigent letters has been stopped, the reckless disregard for 
the law and for the privacy rights of the American people does 
not bode well for the future. We have laws for a reason, and it 
is not reassuring to have the IG come here yet again to tell us 
that those responsible for enforcing the laws appear to have a 
problem with obeying the law. That is unacceptable.
    The people who wrote our Constitution did not believe that 
trust and assurances were sufficient to protect our rights. The 
government is required under our Constitution to answer to an 
independent judiciary before it can invade our privacy. To the 
extent that the Fourth Amendment has been found not to reach 
certain surveillance, Congress has attempted to enact 
legislation to balance the needs of law enforcement with the 
rights of individuals. Self-regulation, however, as the 
founders correctly understood, provides poor protection for our 
rights.
    In addition to examining the IG's findings and how the FBI 
intends to respond to those findings, the Subcommittee will be 
reviewing the current status of the Electronic Communications 
Privacy Act to determine whether technological advances over 
the years require that we update the act and whether we must 
amend the act perhaps with criminal sanctions to avoid 
government officials acting in total contempt of the law and of 
the legitimate privacy rights of law-abiding citizens. But that 
is a matter for another day.
    For today I want to welcome our witnesses, and I look 
forward to your testimony.
    I yield back the balance of my time, and the Chair will now 
recognize the distinguished Ranking Member for 5 minutes for an 
opening statement.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    A series of reports issued by the Department of Justice 
Office of Inspector General most recently this January indicate 
that between 2002 and 2006 consumer records held by telephone 
companies have been provided to the FBI through the use of 
exigent letters. There are other informal methods that fell 
outside the national security letter process embodied in 
statute and internal FBI processes.
    The purpose of this hearing is to examine the IG's January 
2010 report, which focuses on the existence and use of exigent 
letters, which were presented to telecommunications providers 
in lieu of the national security letters or Federal grand jury 
subpoenas.
    These letters requested the production of telephone records 
in conjunction with an assertion that legal process would 
follow. This practice circumvented the law that authorizes the 
use of national security letters for obtaining these types of 
records, which I would note consist of business records and not 
the content of any telephone communications.
    The practice of using exigent letters was stopped 
approximately 3\1/2\ years ago. While the inspector general 
faulted the FBI and specific members of the FBI management and 
supervisory ranks for poor managerial and supervisory 
oversight, there was no finding of criminal intent. While the 
use of these letters did circumvent the law, the IG found no 
intentional criminal activity on the part of any FBI employee.
    As a matter of routine, the findings of this inspector 
general investigation were presented to DOJ's Criminal Division 
for a prosecutive opinion. The DOJ declined prosecution. Now 
that the inspector general report has been issued, the FBI 
employees involved are still subject to discipline from the 
Office of Professional Responsibility.
    Now, there is no excuse for a failure to violate either the 
law or internal Justice Department policy, but there is 
context. First, the inspector general did recognize that some, 
but not all, of the FBI's requests may have been made in 
circumstances that qualified as emergency under the applicable 
emergency voluntary disclosure provision. For example, exigent 
letters and other formal requests were used to obtain records 
in connection with the investigation of a terrorist plot to 
detonate explosives.
    Second, the IG noted that inaccurate statements may have 
been nonmaterial to a FISA application. Third, the IG notes 
that after it issued its first national security letter report 
from March of 2007, the FBI took several appropriate actions to 
address the problem created by exigent letters.
    The FBI ended the use of exigent letters, issued clear 
guidance on the proper use of NSLs and the Electronic 
Communications Privacy Act emergency voluntary disclosure 
statute and conducted an audit of NSLs issued by Field and 
Headquarters Division from 2003 to 2006.
    The FBI also directed that its personnel be trained on NSL 
authority, agreed to move the communications services employees 
off the FBI premises, and extended significant efforts to 
determine whether improperly obtained records could be retained 
or purged from FBI databases.
    The IG also found that the FBI's approach to determine 
which records to retain and which to purge was reasonable, and 
that the review process and other corrective measures issued 
since the issuance of the inspector general's first NSL report 
in March of 2007 may have been reasonable.
    Finally, the inspector general made it clear that it 
recognized that the FBI was confronting major organizational 
and operational challenges during the period covered by our 
review. Following the September 11 attack, the FBI overhauled 
counterterrorism operations, expansion of its intelligence 
capabilities, and began to upgrade its information technology 
system.
    Throughout the 4-year period covered by this review, the 
Counterterrorism Division was also responsible for resolving 
hundreds of threats each year, some of which, such as bomb 
threats, are threats to significant national events needed to 
be evaluated quickly. Many of these threats, whether linked to 
domestic or international terrorism, resulted from a large 
number of high-priority requests of the Communications Analysis 
Unit.
    Members of the FBI senior leadership told us they placed 
great demands on the Communications Analysis Unit and other 
headquarters units. The FBI director stated that he placed 
tremendous pressure on personnel to respond to terrorism 
threats. Other senior FBI officials stated that there were 
countless days when headquarters personnel worked through the 
night and on weekends to determine whether information the FBI 
received from various sources presented threats to the United 
States.
    Indeed, some of the exigent letters and other important 
practices we described in this report were used to obtain 
telephone records that the FBI used to evaluate some of the 
more serious terrorist plots posed to the United States in the 
last few years. In our view these circumstances provide 
important context for the inspector general's report.
    I look forward to hearing from our witnesses today.
    Mr. Nadler. I thank the gentleman.
    I will now recognize for 5 minutes for the purpose of an 
opening statement the distinguished Chairman of the Judiciary 
Committee, the gentleman from Michigan.
    Mr. Conyers. Thank you, Chairman Nadler. I want to commend 
you and your Ranking Member, Jim Sensenbrenner, because this is 
a very important hearing.
    And we have an interesting situation here. The inspector 
general here, the Honorable Glenn Fine of the Department of 
Justice, has a reputation as one of the most effective 
inspector generalqs in the practice. And I think what we have 
here is something that needs further probing.
    I commend Jim Sensenbrenner. Because of him we did not 
remove from the PATRIOT Act the provision that the inspector 
general report--that the inspector general's office shall 
review information and complaints and submit to the Committee 
on the Judiciary the very nature of the matters that we have 
before us.
    I am outraged that somebody in the FBI would invent the 
term ``indigent letters''--``exigent letters''--invent it. It 
is not in the PATRIOT Act. It never has been. And its use, 
perhaps coincidentally, began in the same month that Ms. 
Valerie Caproni began her work as general counsel.
    It took 3 years for us to find out that this practice had 
been going on, and I think that what these hearings--this one, 
the one before--have demonstrated to me is that there must be 
further investigation as to who and where and how somebody in 
the Federal Bureau of Investigation could invent a practice and 
have it allowed to be going on for 3 consecutive years.
    And so I propose that I hope that this Committee and its 
leadership will join me, because I think that there may be 
grounds for removal of the general counsel of the FBI. And 
certainly, there has obviously got to be some disciplinary 
action from the Office of Professional Responsibility.
    What is this? How can we be listening to this kind of 
illegal conduct going on by the law officers of the Department 
of Justice, and we are talking about it as an accident, it is a 
mistake, it was an oversight? And this is an invented, illegal 
act.
    And I hope that somebody else on this Committee will join 
us in this investigation. I have already secured the agreement 
of cooperation from its Chairman. I have not had the 
opportunity to discuss this with Mr. Sensenbrenner or Mr. Steve 
King, too, or anybody else on the Committee. And I intend to do 
that.
    I yield back my time.
    Mr. Nadler. I thank you, Mr. Chairman.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedules, I ask that other Members submit their 
statements for the record. Without objection, all Members will 
have 5 legislative days to submit opening statements for 
inclusion in the record. Without objection, the Chair will be 
authorized to declare a recess of the hearing.
    [The prepared statement of Mr. Johnson follows:]
 Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a 
   Representative in Congress from the State of Georgia, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



                               __________
    Mr. Nadler. We will now turn to our witnesses. As we ask 
questions of our witnesses, the Chair will recognize Members in 
order of their seniority in the Subcommittee and alternating 
between majority and minority, provided that the Member is 
present when his or her turn arrives. Members who are not 
present when their turns begin will be recognized after the 
other Members have had the opportunity to ask their questions. 
The Chair reserves the right to accommodate a Member who is 
unavoidably late or only able to be with us for a short time.
    We have only two witnesses today. First is Glenn Fine, who 
was confirmed as the inspector general for the Department of 
Justice on December 15, 2000. Mr. Fine had worked at the 
Department of Justice Office of the Inspector General since 
January 1995, initially as special counsel to the IG. In 1996 
he became the director of the OIG Special Investigations and 
Review Unit.
    Before joining the OIG, Mr. Fine was an attorney 
specializing in labor and employment law at a law firm in 
Washington, D.C. Prior to that, in 1986 to 1989, Mr. Fine 
served as an assistant U.S. attorney in the Washington, D.C., 
U.S. Attorney's Office.
    Mr. Fine graduated magna cum laude from Harvard College, 
was a Rhodes scholar, earning a BA and MA degree from Oxford 
University, and received his law degree magna cum laude from 
Harvard Law School.
    Valerie Caproni has been the general counsel for the FBI 
since 2003. In 1985 Ms. Caproni became an assistant U.S. 
attorney in the Criminal Division of the United States 
Attorney's Office Eastern District of New York, where she would 
subsequently serve as chief of special prosecutions and chief 
of the organized crime and racketeering section before becoming 
chief of the criminal division in 1994.
    In 1998 she became the regional director of the Pacific 
Regional Office of the Securities and Exchange Commission. She 
served there until 2001, when she joined the firm of Simpson 
Thacher & Bartlett, where she worked until her appointment as 
general counsel by Director Mueller.
    She graduated magna cum laude from Newcomb College of 
Tulane University and received her JD summa cum laude from the 
University of Georgia.
    I am pleased to welcome both of you. Your written 
statements in their entirety will be made part of the record. I 
would ask each of you to summarize your testimony in 5 minutes 
or less. To help you stay within that time, there is a timing 
light at the table. When 1 minute remains, the light will 
switch from green to yellow, and then red when the 5 minutes 
are up.
    Before we begin, it is customary for the Committee to swear 
in its witnesses, if you would please stand and raise your 
right hand to take the oath.
    Let the record reflect that the witnesses answered in the 
affirmative.
    You may be seated.
    Our first witness, whom I will recognize for an opening 
statement, will be Inspector General Fine.

TESTIMONY OF THE HONORABLE GLENN FINE, INSPECTOR GENERAL, U.S. 
 DEPARTMENT OF JUSTICE; MS. VALERIE CAPRONI, GENERAL COUNSEL, 
                FEDERAL BUREAU OF INVESTIGATION

    Mr. Fine. Mr. Chairman, Ranking Member Sensenbrenner, 
Members of the Committee----
    Mr. Nadler. Could you use your mic a little closer? Thank 
you.
    Mr. Fine. Thank you for inviting me to testify about the 
OIG's recent report examining the FBI's use of exigent letters 
and other informal requests to obtain telephone records. The 
OIG completed two previous reports in 2007 and 2008 which 
described the FBI's misuse of national security letters and 
which also noted the FBI's practice of issuing exigent letters.
    In our most recent report that was issued in January 2010 
and that is the subject of this hearing, we examined in depth 
the use of exigent letters, which requested telephone records 
based on alleged exigent circumstances. We also identified 
other informal ways by which the FBI obtains telephone records. 
In my testimony today I will briefly summarize the findings of 
our report, our recommendations, and the FBI's response to 
them.
    Our report found that from March 2003 to November 2006, FBI 
personnel in the Communications Analysis Unit (CAU), issued at 
least 722 exigent letters for more than 2,000 telephone records 
to the three telecommunications service providers located at 
the FBI.
    We found that, contrary to the statements in the letters, 
emergency circumstances were not present when many of the 
letters were issued. Also contrary to the letters, in most 
cases subpoenas had not been sought for the records. In 
addition, our investigation found widespread use of even more 
informal requests for telephone records in lieu of appropriate 
legal process or qualifying emergency.
    For example, rather than using national security letters, 
other legal process, or even exigent letters, FBI personnel 
frequently sought and received telephone records based on 
informal requests they made to the onsite telecommunication 
employees by e-mail, by telephone, face to face, and even on 
Post-it notes. FBI personnel made these kinds of informal 
requests for records associated with at least 3,500 telephone 
numbers, although we could not determine the full scope of this 
practice because of the FBI's inadequate record-keeping.
    The FBI also received information about telephone records 
from so-called ``sneak peeks,'' whereby the company employees 
would check their records and give the FBI a preview of the 
available information for phone numbers or a synopsis of the 
records without any legal process or documentation of the 
request.
    Our investigation identified other troubling practices 
related to FBI requests for telephone records, such as 
community of interest requests, requests on hot numbers without 
any legal process, and misuse of administrative subpoenas.
    Our report also details three FBI media leak investigations 
in which the FBI sought telephone toll billing records or other 
calling activity information for telephone numbers assigned to 
reporters without first obtaining the approvals from the 
Attorney General that are required by Federal regulation and 
Department of Justice policy.
    Our report concluded that the exigent letters and other 
informal requests for telephone records represented a 
significant breakdown in the FBI's responsibility to comply 
with the law, Attorney General guidelines, and FBI policy.
    Our report also analyzed the attempts made by the FBI from 
2003 through March 2007, when we issued our first NFL report, 
to address these practices. We concluded that during this time 
period, the FBI's corrective actions were seriously deficient, 
ill-conceived, and poorly executed. For example, the FBI issued 
legally deficient blanket national security letters in an 
attempt to cover or validate prior telephone records requests.
    By contrast, we concluded that after our first report was 
issued in 2007, the FBI took appropriate and reasonable steps 
to address the problems that its deficient practices had 
created, and we believe that the FBI should be credited for 
these actions. For example, the FBI ended the use of exigent 
letters, issued clear guidance on the use of national security 
letters and on the proper procedures for requesting records in 
emergency circumstances, and provided training on this 
guidance.
    In addition, the FBI moved the three service providers out 
of the FBI offices. The FBI also expended significant efforts 
to determine whether improperly obtained records should be kept 
or should be purged from the FBI databases.
    Our report also assesses the accountability of FBI 
employees for these practices. We concluded that every level of 
the FBI, from the most senior FBI employees to the FBI's Office 
of General Counsel to managers in the Counterterrorism Division 
to supervisors in the CAU to the CAU agents and analysts who 
repeatedly signed the letters, were responsible in some part 
for these failures.
    Finally, our report made additional recommendations to the 
FBI and the Department to ensure that FBI personnel comply with 
the law and FBI policy when obtaining telephone records. We 
recently received the FBI's response to these additional 
recommendations, and we believe that the FBI is taking them 
seriously.
    In sum, the national security letters and other authorities 
that are the subject of our report are important investigative 
tools for the FBI to carry out its counterterrorism mission. 
However, it is essential that they be used in full compliance 
with applicable statutes, Attorney General guidelines, and FBI 
policies. The FBI needs to be vigilant in ensuring that it does 
so, and the OIG will continue to monitor the FBI's exercise of 
these important authorities.
    That concludes my prepared statement, and I would be 
pleased to answer any questions.
    [The prepared statement of Mr. Fine follows:]
           Prepared Statement of the Honorable Glenn A. Fine

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                               __________

    Mr. Nadler. Thank you.
    I now recognize Ms. Caproni.

   TESTIMONY OF VALERIE E. CAPRONI, GENERAL COUNSEL, FEDERAL 
                    BUREAU OF INVESTIGATION

    Ms. Caproni. Good morning, Mr. Chairman, Ranking Member 
Sensenbrenner, and Members of the Subcommittee. It is my 
pleasure to appear before you today to discuss the recent 
report by the Department of Justice's Office of the Inspector 
General and the FBI's use of exigent letter and other informal 
requests for telephone records.
    The 2010 report discusses the practice of one FBI 
headquarters unit of issuing so-called exigent letters to 
obtain telephone toll records, not the contents of any calls. 
That practice, which ended almost 3\1/2\ years ago and began 
well before my tenure at the FBI, reflected a failure of 
internal control. It was, however, a wake-up call for the FBI.
    Although we cannot unring the bell, we have used the 
lessons learned from this situation to substantially change our 
internal control and compliance environment. Since 2007 when 
the issue of the use of exigent letters was first disclosed, 
the FBI has significantly improved its policies, training and 
procedures for requests for information protected by the 
Electric Communications Privacy Act, or ECPA.
    The lessons learned from this experience went well beyond 
ECPA, national security letters, and exigent letters. Instead, 
we saw the exigent letters situation as emblematic of the need 
to systematically and carefully assess compliance risks across 
the FBI, but particularly in the national security arena.
    That realization led to the formation of the Office of 
Integrity and Compliance, whose mission is to ensure FBI 
compliance with both the letter and spirit of all applicable 
laws and regulations. We have seen that program as a positive 
step and should help prevent future situations like the one 
encountered with exigent letters.
    As the OIG discussed at length in this report and the 2007 
NSL report, there were over 700 exigent letters that requested 
toll billing records for various telephone numbers. All of the 
numbers stated that there were--all of the letters stated that 
there were exigent circumstances and that either a Federal 
grand jury subpoena or an NSL would follow.
    Sometimes there was no emergency, but even when there was--
and many, many times there was an emergency--the FBI did not 
keep adequate records reflecting the nature of the emergency, 
the telephone numbers for which records were sought, and 
whether the promised future process, which many times was not 
legally required, was ever issued.
    It should be emphasized that exigent letters were not and 
were never intended to be NSLs. Rather, they appear to have 
been a sort of placeholder born out of a misunderstanding of 
the import of the USA PATRIOT Act's amendment to ECPA. Much to 
our regret, in the years following that act, the FBI did not 
adequately educate our workforce that Congress had provided a 
clear mechanism to obtain records in emergency situations, and 
it was not the mechanism they were using.
    In March 2007 the FBI formally barred the use of exigent 
letters to obtain telephone records and established clear 
policies for FBI employees to follow during emergencies. That 
process is in full compliance with 18 USC Section 2702, which 
permits a carrier to provide subscriber and toll record 
information if the provider in good faith believes that an 
emergency involving danger of death or serious physical injury 
to any person requires disclosure without delay of information 
relating to the emergency.
    The OIG's 2010 report discusses in detail 11 so-called 
blanket NSLs. As we briefed the full Committee in 2007, the 
blanket NSLs were a good faith, but ill-conceived attempt by 
the Counterterrorism Division to address the backlog of numbers 
for which the FBI believed it had unfulfilled obligations to 
provide legal process as they had promised through the exigent 
letter practice.
    The FBI dedicated significant resources to researching all 
4,400 of the telephone numbers that appeared on known exigent 
letters and on the so-called blanket NSLs to ensure that we 
retained only telephone records for which we had a lawful 
basis. We appreciate the finding of the OIG that our approach 
to determine which records to retain and which to purge was 
reasonable.
    The OIG also addresses other informal requests for 
telephonic information, the intersection of exigent letters and 
FISA, and an OLC opinion. I would be happy to discuss those 
issues with you today, except for the OLC opinion, which can 
only be discussed in a classified setting. As to the OLC 
opinion, I can, however, say that it did not affect in any way 
either our actions from 2003 to 2006 or the records retention 
decisions made by the FBI as part of the reconciliation project 
I just discussed.
    During prior hearings before this Committee and others, 
Members have asked whether employees who have participated in 
issuing exigent letters would be prosecuted or punished. DOJ's 
Public Integrity Section declined prosecution, but the FBI's 
Office of Professional Responsibility will review the OIG 
findings, and determine whether any discipline of any employee 
is appropriate.
    To that end, we appreciate the report's recognition that 
FBI employees involved in this matter were attempting to 
advance legitimate FBI investigations. This does not excuse our 
failure to have in place appropriate internal controls, but it 
puts the actions of those employees in context. Many times they 
were obtaining telephone records that were necessary to 
evaluate some of the most serious terrorist threats posed to 
the United States in the last few years.
    Nevertheless, we know that we can only keep the country 
safe if we are trusted by all segments of the American public, 
including Congress, to use the tools we are given responsibly. 
We believe that the changes we have made in the recent several 
years reflect just how seriously we took this breach of that 
trust.
    I appreciate the opportunity to appear before the 
Subcommittee and look forward to answering your questions. 
Thank you.
    [The prepared statement of Ms. Caproni follows:]
                Prepared Statement of Valerie E. Caproni

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                               __________

    Mr. Nadler. Thank you.
    I will begin the questions. I recognize myself for 5 
minutes to begin questioning.
    First, Ms. Caproni, the IG report raises a potentially 
troubling concern relating to FBI's statements to this 
Committee. The IG carefully reviewed the FBI process for 
determining whether to keep or to purge the telephone records 
improperly obtained because of exigent letters or a similar 
method. The report concluded that the FBI's final 
determinations were reasonable, even though in some cases the 
FBI may have kept records that were not relevant to an 
authorized investigation at the time they were obtained.
    But in testimony before this Committee, FBI officials, 
including Ms. Caproni, went further. As the IG report points 
out, Ms. Caproni specifically testified before the full 
Committee in 2007 that if any records were found that were not 
in fact relevant to an authorized investigation, they would be 
``removed from our database,'' and ``destroyed.''
    Accepting the IG's conclusion that the ultimate FBI 
decision was a reasonable one, I am troubled by the fact that 
the FBI apparently did not do what it told the Committee it 
would do and did not communicate this to us. Indeed, we first 
learned that it had not destroyed the information it had said 
it would when we first learned about this matter from the IG 
report. Can you explain this discrepancy, please?
    Ms. Caproni. The process that we went through was a 
laborious one, and it was designed to ensure that there was in 
fact a legal basis for any telephone records that we retained. 
The first step of that analysis was to determine whether any 
process had already been issued, and that was frequently found 
to be the case.
    If process had not already been issued, then we next looked 
to whether we could now issue process, meaning is the record 
relevant to an open investigation. Sometimes we couldn't do 
that, because the investigation had already been closed. When 
that happened, we dropped to the next step of the analysis, and 
the next step of the analysis was whether at the time we 
received the record, whether there was in fact an emergency 
that would have qualified under 2702. If there was, even though 
there wasn't then open an investigation to which the records 
were relevant, we would retain the records.
    You know, we were trying to do the best we could to fix the 
situation that was not of our making. So in fact--I am sorry, 
so in fact we have no record----
    Mr. Nadler. Yes, I--excuse me--excuse me a second. Granted 
all of this, the IG report concluded the actions taken were 
reasonable. I don't dispute that.
    What I am asking is--and you are addressing that you took 
reasonable actions, and granted, no one is questioning that. 
What I am questioning is that the testimony at the hearing was 
not that reasonable action would be taken, but that if any 
records were found that were not in fact relevant to an 
authorized investigation, they would be removed from the 
database and destroyed.
    Apparently, that was not done, and this Committee was not 
notified that contrary to the assurances the Committee had 
received that that would be done, that it was not in fact done. 
That is what I am asking for an explanation.
    Ms. Caproni. Congressman, I think the issue is one of 
timing. So the issue is the records were relevant to an 
authorized investigation. The question is whether that 
investigation was still open at the time. So there was no 
evidence I have seen throughout the entire reconciliation 
project, no evidence that records were obtained that were 
simply not relevant to what the FBI was doing. The question is 
whether at the time we were looking at the record----
    Mr. Nadler. Yes, I get that--whether it was still relevant.
    Ms. Caproni [continuing]. There was still an open 
investigation.
    Mr. Nadler. Okay. Mr. Fine, could you comment on that?
    Mr. Fine. It was an unpalatable situation they found 
themselves in, inexcusable that they were in that situation. 
Once they were in that situation, we looked at it and said, 
``What would be the best thing to do, given the difficult 
alternatives?'' And we concluded it was reasonable. It was not 
exactly as it was understood in the beginning, but the process 
evolved, and we concluded again.
    Mr. Nadler. No, it was reasonable, but----
    Mr. Fine. Yes.
    Mr. Nadler [continuing]. Would you conclude that there were 
not in fact--would you agree that there were not in fact 
records not relevant to an investigation that were not 
destroyed, which would be contrary to the assurances given to 
this Committee?
    Mr. Fine. I do agree with Ms. Caproni. It depends on what 
time you are talking about.
    Mr. Nadler. Okay.
    Mr. Fine. At the time they were looking at it, an 
investigation was closed, but they had to time travel back and 
forth to see when it was. So that is a difficult situation. We 
do not criticize that.
    Mr. Nadler. Okay.
    I am also concerned, Mr. Fine, that one conclusion that 
comes from this report and all three of your reports on the 
FBI's use of NSLs and exigent letters, all of the reports make 
clear that there was serious misconduct, including violations 
of law with respect to FBI efforts to obtain private 
information on Americans without a warrant or other prior 
approval by a judge. That is always a risk when agencies can 
obtain such private information without a judicial order.
    What are your plans concerning oversight of the FBI in this 
area? And what do you think Congress should do to help make 
sure that such FBI authority is not abused as it was in this 
case? Let me just say again--let me just amplify the question.
    The Ninth Circuit in a decision on a different question of 
state secrets said that the executive cannot be its own judge. 
That seems to me to encapsulate much wisdom in this area, that 
you cannot trust the executive--I don't care who the President 
is--executive per se or any particular agency to be its own 
judge. ``Trust me'' is not something that you can rely on to 
protect our liberties and our privacy.
    So what are your plans concerning, in light of that, 
oversight of the FBI? And what should Congress do to help make 
sure that such FBI authority is not abused?
    Mr. Fine. We intend to continue to monitor this, the use of 
these authorities. We think it is important that we do so. 
Initially, we are going to look at the FBI's progress on 
addressing the recommendations we have made in all three of our 
reports. We made 10 in the first one, 17 in the second one, 13 
in this one. We believe they have made progress, but as the 
Office of the Inspector General, we need to verify, we need to 
review, we need to make sure they do that.
    We also intend to look at their use of the authorities, and 
we will continue to do this in conjunction, too, with the 
Department's review of it. The National Security Division is 
doing extensive reviews of it. So I think that it is very 
important that we continue to monitor, oversee, and assess it. 
I think it is very important for Congress to do so as well. I 
think these kinds of hearings are important to hold the FBI 
accountable, to hold their feet to the fire, to make sure that 
they follow through what they say they are going to do in terms 
of accountability. So I think that is very important.
    I also think, as I stated in my testimony, that the issue 
about the Office of Legal Counsel opinion about an authority 
that they have raised is important for Congress to look at and 
make sure they are----
    Mr. Nadler. To look at what?
    Mr. Fine. The authority that the Office of Legal Counsel 
opinion said was with the FBI. We provided certain records that 
I can describe in an unclassified setting--it is very important 
for Congress to look at that to see whether there ought to be 
statutory accountability provisions related to that authority.
    Mr. Nadler. And, finally, do you think that perhaps that 
aside, Congress should legislate in terms of any other way in 
terms of enforcement, perhaps making violations of this in any 
way criminal, such as was done with FISA, although that doesn't 
seem to have worked very well?
    Mr. Fine. At this point I am not certain that I would go 
there and say it has to be criminal violations, but I do think 
that there are existing oversight mechanisms that need to be 
rigorously enforced to hold the FBI accountable, including 
disciplinary actions in the appropriate case.
    Mr. Nadler. Thank you very much.
    My time has expired. I will now recognize for 5 minutes the 
distinguished Ranking Member of the Subcommittee, the gentleman 
from Wisconsin.
    Mr. Sensenbrenner. Thank you, Mr. Chairman.
    I guess my comments today are going to be more a discussion 
of my frustration. As both of you know, I was the author of the 
PATRIOT Act and the PATRIOT Act reauthorization of 2006, and I 
withstood the assaults of my friend seated to my right in both 
of those cases. And I am seeing a pattern that the FBI really 
wants to get around various restrictions that the PATRIOT Act 
put on their activities.
    For example, with the original PATRIOT Act, the FBI and DOJ 
wanted to have administrative subpoena, and that got very 
little support from the Congress and was not included in the 
PATRIOT Act. The section 215 business records provisions were 
very controversial. And what did the FBI do? They didn't seek 
section 215 authority for business records, but they used the 
national security letter statute, which was passed in 1986 and 
was merely rearranged to be a part of the PATRIOT Act statute 
in the statute books, so this wasn't a new authority that was 
given.
    And when the reauthorization came up for review, we found 
that there were all kinds of problems with that, and the 
PATRIOT Act reauthorization act of 2006 had a number of, in my 
opinion, constitutionalizing provisions in the national 
security letters, giving people a right to a court review 
similar to a motion to quash a subpoena.
    So then what happens is we get these exigent letters that 
were never authorized by any kind of statute, and it took a big 
stink to stop those, and we are talking about how the material 
obtained according to the exigent letters were scrubbed or not 
scrubbed.
    Now, Ms. Caproni, you were the general counsel of the FBI 
during most of this period of time, and I imagine that you 
either initiated or signed off on a lot of these procedures 
that were designed to do things that the FBI didn't like in the 
PATRIOT Act and its reauthorization, because they were not 
approved by Congress. And, you know, as a result, ordinarily I 
don't agree with going on a witch hunt, but I certainly am not 
unsympathetic to the comments made by my distinguished 
successor as Chairman of the full Committee about what is going 
on in your office.
    You know, I have discussed these matters extensively when I 
was Chairman and afterwards with Director Mueller and with 
successive Attorneys General, and I don't think you are getting 
the message. Will you get the message today?
    Ms. Caproni. Congressman, quite the contrary, (a) I have 
gotten the message, and I have had the message for several 
years. The Office of General Counsel did not sign off on the 
exigent letters. There was a point in time when a staff lawyer 
became aware of them. The fact----
    Mr. Sensenbrenner. Well, then who did sign off on the 
exigent letters?
    Ms. Caproni. The Counterterrorism Division did.
    Mr. Sensenbrenner. Okay. Well, who is in charge of 
determining whether the FBI is following the law or not?
    Ms. Caproni. We are. There is no doubt about it. 
Congressman, I have never done anything other than acknowledge 
to this Committee and every other Committee of Congress that 
this was a massive failure of internal controls. There is no 
doubt about that.
    Mr. Sensenbrenner. Well, you know, I am not feeling so 
charitable about that, because I did the fighting with the FBI. 
I know administrative subpoenas, section 215 authority, which I 
defended, and then I find out after defending it, instead of 
using section 215, you used national security letters, you 
know, where there is no right for the recipient to go to court. 
And I put the rights for the recipients to go to court in, and 
then when that happened, then the exigent letters, you know, 
started.
    You know, all I can say is, you know, I am extremely 
disappointed that every time Congress has tried to plug 
potential civil rights and civil liberties violations in our 
counterterrorism activities, the FBI seems to have figured out 
a way to get around it. You know, I came to this whole issue as 
your friend, more than my Subcommittee and full Committee 
Chairs, and I feel betrayed.
    I yield back the balance of my time.
    Ms. Caproni. Congressman, I understand that frustration. I 
truly do. But I do think that the Office of General Counsel has 
worked very hard to make sure that we actually stay within the 
lines that Congress has set. It is a big organization. We work 
very----
    Mr. Sensenbrenner. But you haven't. That is the point.
    Ms. Caproni. We work very hard.
    Mr. Sensenbrenner. And that is why the inspector general is 
making these reports. And I was concerned about this type of 
evasion when I put the annual inspector general's report in the 
PATRIOT Act, simply because I was afraid that having the fox 
guard the chicken coop down the street was going to result in 
activities that would end up embarrassing the government when 
they are in the middle of a sensitive counterterrorism 
investigation.
    Ms. Caproni. And we welcome the oversight from the 
inspector general. We also welcome the oversight from the 
National Security Division of the Department of Justice. The 
Inspection Division does a great deal of work in this area. We 
are trying our best to maintain within a very large workforce 
adherence to all of the rules and policies while still giving 
our employees the freedom of movement so that we can stop 
terrorist attacks against the country.
    Mr. Nadler. Would the gentleman yield for a moment?
    Mr. Sensenbrenner. I think I will yield whatever is left of 
my time, since the red light went out.
    Mr. Nadler. Well, it is a failure of electricity, I am 
sure.
    I would just like to observe, agreeing with the 
distinguished gentleman, that despite all the efforts that you 
mention of the General Counsel's Office, there is a clear 
pattern here of deliberate evasion--deliberate on somebody's 
part.
    First, the FBI seeks certain statutory authorities for 
administrative subpoenas. Congress says no. We put in section 
215. They use NSLs. We put in more protections for NSLs. They 
invent exigent letters until we catch--or the inspector general 
catches up with them.
    In every case it seems that the FBI is doing what it wanted 
to do in order to accomplish surveillance without appropriate 
checks and balances beyond what Congress authorized. And 
whenever Congress said, ``Thus far, and no farther,'' it went 
farther.
    So it may be that in the last couple of years since 2007, 
we are told by Mr. Fine, that in the second wave of change--the 
first wave was ineffective--the second wave may finally have 
begun to rein this in properly. But meanwhile, there does 
appear to have been for a number of years a pattern of very 
deliberate evasion of the law. And whether your office knew 
about it or not is a different question, but somebody did.
    I yield back.
    Ms. Caproni. Congressman, there is something about the 
chronology here that the Committee seems to be focused on that 
I need to correct. There was no substitution of NSLs for the 
power and the authority that was provided to us in 215. 215 
provided very broad----
    Mr. Sensenbrenner. You know, ma'am, with all due respect, I 
lived in this for 6 or 7 years as I was trying to pass the Bush 
administration's counterterrorism legislation. And I had to 
defend what the Bush administration was doing against my 
Democratic friend. That is why I said I feel betrayed, because 
every time we tried to patch up a hole in what the FBI was 
doing, you figured out to put another hole in the dike. And 
this little Dutch boy has only got 10 fingers to plug holes in 
the dike.
    Ms. Caproni. Again, I just want to make sure that the 
chronology in terms of what happened is correct. And it is not 
the case that exigent letters were adopted as some sort of way 
to get around the advances that were put in----
    Mr. Nadler. That is--that is----
    Ms. Caproni [continuing]. The provisions that were put into 
the NSLs in the PATRIOT Reauthorization Act.
    Mr. Nadler. The gentleman's time has expired. I will simply 
observe----
    Ms. Caproni. It started before then. The two had nothing to 
do with each other.
    Mr. Nadler. Okay. The gentleman's time has expired.
    The gentleman from Georgia is recognized.
    Mr. Johnson. Thank you, Mr. Chairman and Mr. Ranking 
Member, for holding this very important meeting on this issue.
    I will start with the Fourth Amendment to the United States 
Constitution. The right of the people to be secure in their 
persons, houses, papers and effects under unreasonable searches 
and seizures shall not be violated, and no warrants shall issue 
but upon probable cause supported by oath or affirmation and 
particularly describing the place to be searched and the person 
or things to be seized.
    And I would point out the fact that the right of the people 
or a person, and the U.S. Supreme Court has affirmed that a 
corporation is a person for many various reasons, some of which 
are objectionable. But I will ask you that the exigent letters, 
which have no basis in Federal statute or by way of the 
Constitution, how does the use of these exigent letters square 
with the Fourth Amendment?
    Ms. Caproni. Congressman, the telephone records being held 
by the phone company, as to the phone company, the phone 
company has a right to give their records or not give their 
records in accordance with statute. As to the customer----
    Mr. Johnson. Well, they----
    Ms. Caproni [continuing]. The customer does not have what 
is known as interest in those records.
    Mr. Johnson. Well, a company does not have to give up its 
private records without some kind of legal compulsion to do so, 
correct?
    Ms. Caproni. It need not. It is their choice, because they 
are their records. They have to comply with the law, and in 
this particular case ECPA governs these records.
    Mr. Johnson. And so in this situation, the FBI contacts an 
American corporation, say, AT&T, Verizon, any of the others, 
and says, ``Look, we need these records, these telephone call 
records. And we will get you a subpoena for them or we will get 
you a national security letter to back up this request, but we 
are having an emergency, and we need the information now.''
    Ms. Caproni. That is correct. And that is exactly what 18 
USC 2702 permits. The problem was the promise of follow-on 
process. If it is truly an emergency that qualifies under 18 
USC 2702, the phone company is entitled to provide the records 
to the FBI----
    Mr. Johnson. Well, now, where did the exigent letters 
somehow enter into this process as a legal means of obtaining 
that information?
    Ms. Caproni. You know, Mr. Fine has just done a 300 or 350-
page report on how it got in there. I think it came----
    Mr. Johnson. Would you just capsulize, yes, please?
    Ms. Caproni. In sort of capsulization, it was a follow on 
to what had been being done right immediately after 9/11 in New 
York as a way to get records in a true emergency. And that 
process got moved into a different environment it should not 
have. And moreover, during the interim Congress had legislated 
in this area and said when you have a real emergency, this is 
what you need to do. And that law did not get sufficiently 
inculcated into our workforce.
    Mr. Johnson. Mr. Fine, how would you respond? Would you 
comment on that answer, please?
    Mr. Fine. I would respond that exigent letters started in 
New York in connection with the criminal investigation after 
the September 11th attacks, when people from New York went into 
FBI headquarters to establish the Communications Analysis Unit. 
That practice migrated to that unit. It was inappropriate. 
There is no authority for them to provide exigent letters with 
follow-up legal process.
    There is a ECPA statute that they needed to follow. They 
didn't follow it. They simply used this process, and when 
people had questions about it, they didn't adequately address 
the questions. They just simply went on with the process, and 
it was improper, it was inappropriate, and it was wrong.
    Mr. Johnson. And then destroyed or lost records which 
documented the precise actions that were taken and the need for 
those actions, correct?
    Mr. Fine. Well, they never kept the records. I mean, they 
would not keep adequate records of this. They wouldn't keep the 
exigent letters in a database. They didn't keep national 
security letters. It was incredibly sloppy practices that they 
took. And it made our job difficult even figuring out how often 
it occurred and when it occurred.
    Mr. Johnson. Has there been a request made by any 
stakeholder for a special prosecutor to be called for or 
requested by the Attorney General for reasons that I think have 
already been stated? How can a executive investigate or be the 
judge of their own conduct, as Chairman Nadler put it? Has 
there been such a request? And if such a request was made, 
would you support it, Mr. Fine, and also Ms. Caproni?
    Mr. Fine. I am not aware of any request. There may have 
been one. What I am aware of is we did a very--we believe it 
was a very thorough investigation of the facts and 
circumstances. We put it in our report, and we provided it to 
the Public Integrity Section of the Department of Justice.
    Mr. Johnson. Nobody has been punished for this, have they?
    Mr. Fine. Not yet. The----
    Mr. Johnson. Not even an adverse employment decision or 
adverse action against any of the employees, who employed these 
techniques?
    Mr. Fine. Well, we finished our report in January and 
provided it to the FBI. My understanding is the Office of 
Professional Responsibility is reviewing the report and 
determining what action is appropriate in that regard.
    Mr. Johnson. Ms. Caproni?
    Ms. Caproni. Mr. Fine is correct. The issue of what, if 
any, action will be taken against individual employees is 
currently pending with the Office of Professional 
Responsibility within the FBI.
    Mr. Johnson. Does that office have the ability to refer to 
the criminal investigation side?
    Ms. Caproni. Well, that has already been done. The IG 
referred it to the Public Integrity Section, who declined 
criminal prosecutions. We are now moving on and discussing the 
issue of whether there will be disciplinary action taken, and 
the Office of Professional Responsibility has very broad 
ranging authority to impose discipline, everything from a 
censure to discharge of the employee.
    Mr. Johnson. Thank you, Mr. Chairman.
    Mr. Nadler. Do you have any more?
    I am informed that we have another Member who wants to 
question, who will be here. I am informed we have another, so I 
will take advantage of the interim before she arrives to ask 
another question, if I may.
    Let me ask you, Ms. Caproni. After reviewing your 
correspondence with various Department of Justice officials, 
the OIG report concludes that you were not on sufficient notice 
of the use of exigent letters before the OIG's investigation 
began. How could this practice have escaped legal, the notice 
of your office, your notice for so long? How could you not have 
known about this?
    Ms. Caproni. Me personally?
    Mr. Nadler. Well, you personally or your office.
    Ms. Caproni. Again, my office had awareness. There was a 
line attorney who was aware of the practice. There have been 
some discussions. I don't think that the lawyers in fairness, 
and I think this is really what the inspector general 
concluded, that the deputy over that area of my office was not 
aware of the scope of the problem. Because of that, it did not 
get raised to my----
    Mr. Nadler. But he knew that there was a problem, but he 
didn't think it necessary to inform you.
    Ms. Caproni. I am sorry. Say that again?
    Mr. Nadler. He was not aware of the scope of the problem, 
though he knew there was a problem, but because he was not 
aware of the scope of the problem, he did not feel it necessary 
to inform you.
    Ms. Caproni. It was ``her,'' but that is correct.
    Mr. Nadler. Okay. And let me ask one other thing. The IG 
criticizes the corrective action taken by the FBI prior to 
early 2007, calling it seriously deficient. For example, it 
states that 3 years after the practice began, your office 
directed that exigent letters be revised, but nonetheless 
approved their continued use until March 2007. Why did this 
happen? Why did you allow it to continue, although albeit under 
revised? And why didn't you act earlier and more effectively?
    Ms. Caproni. Again, this was not me personally, but I think 
that the rationale was that the attorney who provided the 
advice, and the report truncated the advice that she actually 
provided; there was more context to it in the advice that was 
provided. What she was telling them was you can only do this if 
you have got a true emergency.
    That is, while she was not thinking about 2702, her advice 
was actually consistent with 2702 statute. Because she wasn't 
really focusing on that, she was allowing them to use the short 
form exigent letter that was then supposed to be followed with 
legal process.
    This is actually a much more complicated issue than, I 
think, some would like to recognize. And part of the problem is 
that some carriers would actually prefer to have belts and 
suspenders, so even if it is an emergency, so even if they are 
legally authorized to give us the records based only on the 
emergency with no legal process, they actually would like law 
enforcement to provide legal process when the emergency 
subsides and there is time to do so.
    So from the provider's perspective, there is pressure to 
give follow-on legal process. As we have consistently advised 
our employees, and this is certainly a big issue for the 
inspector general, the statute does not seem to anticipate 
that. You look at 2702 standing alone; 2702 provides the 
providers with legal immunity if they provide records in the 
case of a good faith belief that an emergency exists.
    Mr. Nadler. Which they seem to have used all over the place 
without any subsequent provision of process or anything else.
    Mr. Fine, could you comment on what Ms. Caproni just said 
on her answer to this question?
    Mr. Fine. I believe that the Office of General Counsel did 
not do all they could have and should have in this practice. 
There were people in the office who knew about it. They didn't 
review the exigent letters at the time they first knew about it 
and did not give full and accurate legal advice. And they did 
not put a stop to this practice and did not ensure that people 
knew about the parameters of how they could use this letter.
    And we do criticize the people in her office who were not 
adequately and accurately providing legal advice on this by 
reviewing the exigent letters and putting a stop to them. They 
were trying to reform it, but they weren't ending it, and that 
was a problem.
    Mr. Nadler. Thank you.
    The gentlelady from California is recognized.
    Ms. Chu. Thank you, Mr. Chair.
    I have questions about the culture at the FBI that led to 
the use of these exigent letters. When the OIG report said that 
when it asked the FBI supervisors why they used them, no one 
could satisfactorily--well, ``Nobody could satisfactorily 
explain their actions. Instead, they gave a variety of 
unpersuasive excuses contending either that they thought 
someone else had reviewed or approved the letters, that they 
had inherited the practice, or were not in a position to change 
it, or that it was not their responsibility to follow up with 
appropriate legal process.''
    So what I want to know is how you are changing that 
culture. What procedures does the FBI have in place currently 
to ensure its employees understand and adhere to the law when 
conducting investigation?
    Ms. Caproni. We have spent a tremendous amount of time 
looking at that issue and trying to figure out what are the 
appropriate training regimes to make sure that across the board 
on these high-risk type of areas that our employees have been 
adequately trained.
    ECPA is a particular issue that comes up in legal training 
regularly, and it will continue to be regularly trained on 
either a 1-year or 2-year cycle. We haven't quite decided that 
yet. But we spend a lot of time trying to figure out and in 
fact focusing on adequate training for our employees, and then 
not just training, but then auditing on the back end to make 
sure that the training has taken and that in fact our employees 
have understood the message that has been delivered, and then 
it is reinforced on a regular basis.
    It is incredibly important to us that our employees comply. 
We were extremely disappointed when they discovered this and 
when we discover similar sorts of issues where we have got a 
clear disconnect between what the rules and laws are that 
govern our actions and what employees were doing.
    Ms. Chu. Well, you said that you are training them, and 
then you then want to make sure that they actually ingested 
that information, but how do you check up on that?
    Ms. Caproni. The Inspection Division is focusing, for 
example, on national security letters. The Inspection Division, 
which is our sort of internal audit division within the bureau, 
has audited the use of national security letters several times 
in addition to the audits that the inspector general has done.
    The National Security Division looks at national security 
letters when they go out and do periodic what are called 
national security reviews. So they are looking in the files. 
They are looking at the letters.
    We also instituted systems to make sure to correct what we 
view as fairly common errors, that it is all automated now so 
that the employee can't make the error. We ensure that 
documents are routed through attorneys and things like that. So 
we are looking systematically at issues like this to try to 
figure out where can we build into the system checks and 
balances, attorney review where appropriate, so that we can 
ensure before the action is taken that in fact it is being 
taken in accordance with all laws, regulations and policies.
    Ms. Chu. What process is in place, then, for companies like 
the phone companies in this case to complain or confirm the use 
of certain investigative techniques. In other words what could 
these companies have done to alert you or the IG about 
potential abuse on behalf of FBI employees?
    Ms. Caproni. Well, the issues with the phone companies was, 
I believe, and I think the inspector general would agree with 
this, the problem was that when their employees were relocated 
into our workspace was both parties, their systems and our 
systems of internal controls broke down.
    So the phone company employees viewed themselves as part of 
the team, and they were fighting the fight to keep America 
safe. Our employees lost that professional distance that they 
needed between themselves and the telephone companies. So I 
don't think this is a matter of the phone companies feeling 
they should complain and not have anybody to complain to. I 
think they saw the same thing we did--was that putting our 
employees together, while it had huge benefits in terms of 
speed, had an extreme downside, which was that it broke down 
both our sets of internal control.
    Ms. Chu. In previous testimony you said that the FBI did 
not accurately report to Congress on the use of exigent 
letters. How can Congress and the IG provide better oversight 
to ensure this doesn't happen again?
    Ms. Caproni. Well, certainly on reporting I think the 
systems that we now have in place to tally national security 
letters, which is an automated system which automatically snags 
the statistics that we need in order to report the numbers that 
we are required to report to Congress, has vastly improved our 
reporting. I can't say that it is 100 percent accurate, but I 
can say it is a thousand times better than it was when we were 
using antiquated spreadsheets to try to tabulate national 
security letters.
    Ms. Chu. Thank you very much.
    Mr. Nadler. Thank you.
    I will now recognize the gentleman from Tennessee.
    Mr. Cohen. Thank you, Mr. Chairman. I appreciate your 
holding the hearing. This is an issue that is of great 
importance to the American people, for the Constitution and due 
process are involved, and sometimes they kind of get looked 
over.
    Let me ask Mr. Fine. You have, as I understand it, made 
some recommendations to the FBI, and they have responded, but 
they haven't taken any action, as I understand it. Is that 
accurate? Or can you tell us what actions they have taken and 
how long do you think it should take them in an expedient 
fashion?
    Mr. Fine. Congressman, they have responded, and they have 
taken some actions, and they have described how they are going 
to take additional actions. So I do believe they are taking our 
recommendations seriously. They have not implemented all of our 
recommendations yet. There are still some policies that they 
need to put in place.
    And in addition, it is not a one-time thing. They need to 
provide training and guidance, but it is not once won and done. 
It has to keep going and be part of the culture, part of the 
regular course of business, and continuous. And so I think that 
is the important thing here, not simply to say we concur and we 
have done it once, but to go on and on and make sure that they 
are monitoring this, they are ensuring that it is complied 
with, and that while policies are good, they not self-executed.
    Mr. Cohen. And I may be incorrect, but I believe your 
testimony indicated that much of this activity occurred during 
the 2003 to 2006 period. Is that accurate?
    Mr. Fine. Yes.
    Mr. Cohen. Is there any indication that this pre-existed 
2003?
    Mr. Fine. Well, we looked at a particular unit, the 
Communications Analysis Unit, where the bulk of this activity 
occurred, and that unit was created in late 2002 or early 2003. 
So that is when this problem really became widespread, and that 
is where we focused our attention on.
    Mr. Cohen. And you don't think there are other problems? Do 
you have any reason to believe there are other problems where 
the bureau is not abiding by its constitutional duties and 
requirements?
    Mr. Fine. You know, can I rule that out? No. Do we have 
indications of it? We would have opened an investigation on 
that. We don't have particular examples, but I do think that 
this had implications all throughout the bureau. That is, 
without putting in systems to ensure that they are complying 
with the law in this area, you know, it is not as if it is 
solely one situation. And I think that is why our message has 
to be broader than fix this one problem and you are okay.
    You have to fix it in terms of a process and a culture and 
oversight mechanism, which I think they have said they have 
recognized that. They have called this a wake-up call. We will 
be there to monitor that.
    Mr. Cohen. Do you believe the FBI director at the time was 
aware of these activities?
    Mr. Fine. No. We didn't have indications that he was until 
our investigation surfaced it.
    Mr. Cohen. And then when it did surface, did he take 
adequate action?
    Mr. Fine. Yes, I think he did. He took responsibility for 
it. He recognized he was at fault as well and that he needed to 
ensure that this didn't happen again and that there were 
processes in place for them to find and not wait for us to find 
them.
    Mr. Cohen. Thank you, sir.
    Ms. Caproni, you mentioned that the fact is the report 
concludes the FBI and the Department of Justice must take 
additional action to ensure FBI personnel comply with the 
statutes, guidelines, regulations and policies governing the 
FBI authority, et cetera. Do you have any--do you have an 
opinion upon when we might get compliance or affirmation from 
the DOJ and the FBI that they are going to change their 
policies?
    Ms. Caproni. Congressman, we have changed a massive number 
of policies that relate to ECPA and how we get telephone 
records since 2007. And we have briefed this Committee's staff, 
and we are happy to come back up and do a full briefing on 
that.
    There are substantial numbers of changes in policies, and 
probably more importantly, what we did was change systems. And 
so, for instance, for national security letters, which is where 
this all began, we now have an automated system, which routes 
them.
    First off, it fills in all the boilerplates so that we take 
account of the mildly different language that is required, 
depending on what statute you are proceeding under. It routes 
it automatically so that it cannot proceed, it cannot go unless 
it has been approved by everybody that is required to approve 
it, including an attorney. That system automatically populates 
the letter. It automatically uploads it into the system. It 
automatically snags the statistics that we need for 
congressional reporting.
    For emergency requests, not for exigent letters, but true 
emergency requests, we are designing a very similar system, 
which will pre-populate letters to the phone companies with the 
required statutory language so that all the agent needs to do 
is to actually fill in what is the emergency.
    So I would say we have taken a long look at lots of 
different policies and also at procedures so that our agents 
aren't making what I would call errors or careless errors, not 
intentional wrongdoing, not trying to violate people's rights, 
but just in a rush with their business, not dotting ``I''s and 
crossing ``T''s that we would like them to do.
    So we are trying to use technology to make that easier for 
them so that they can focus their attention on mission-related 
work rather than on, you know, making sure that they have 
cited, you know, C4 instead of C5 in order to do what they want 
to do.
    But we are again happy to come up and brief on all of the 
changes to policies that we have made in the last 3 years in 
response to the IG's first report, if the Committee would like.
    Mr. Cohen. Thank you very much. I appreciate each of your 
testimonies and particularly appreciate the Chairman for 
bringing this important subject to the attention of the 
Subcommittee and the country.
    Thank you.
    Mr. Nadler. I thank the gentleman.
    I think that concludes. Without objection, all Members will 
have 5 legislative days to submit to the Chair additional 
written questions for the witnesses, which we will forward and 
ask the witnesses to respond to as promptly as they can so that 
their answers may be made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record, 
and we thank the witnesses and the Members. And with that, the 
hearing is adjourned.
    [Whereupon, at 11:18 a.m., the Subcommittee was adjourned.]

                                 
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