Another apparent violation of the law by Bush administration officials came to light this week, as a Freedom of Information Act request by the Electronic Frontier Foundation revealed that the FBI had sent letters to telecommunications providers requesting that they "provide a community of interest" for telephone numbers the FBI was investigating. The documents were among the so-called exigent letters that the FBI has admitted were "improper" (read: illegal). But in a Monday blog post, EFF's Kurt Opsahl charged that the "community of interest" requests were fresh evidence that the FBI had broken the law.

Opsahl points to a glossary of government terms that defines a "community of interest" as "A grouping of users who generate a majority of their traffic in calls to other members of the group." That suggests that the FBI was asking carriers to analyze a suspect's call patterns and the call patterns of his friends in order to identify which individuals were closely associated with the suspect. Opsahl notes that the Electronic Communications Privacy Act places strict limits on the information a telecommunications carrier can share with the government, and information about "communities of interest" are not among the types of information carriers may disclose.

Troubling implications

The revelations have a couple of troubling implications. First, it illustrates that allowing law enforcement officials to request information directly from telecommunications providers, without obtaining a court order first, is an invitation to abuse. Without the oversight of an independent magistrate, there is no one to object if the FBI oversteps its authority, as it appears to have done in this case.

Second, the letters suggest that the unnamed telecommunications providers have developed the in-house capacity to perform link analysis on customer data and determine a "community of interest" for each of their customers. Given that such analysis likely involves examining the call records of dozens of individuals who are not under investigation and turning the results over to the government, it is difficult to see such a capability can be squared with the Fourth Amendment.

Matt Blaze, a professor of computer science at the University of Pennsylvania, told the New York Times that determining communities of interest is "the sort of things telephone companies are doing anyway because it's central to their businesses for marketing or optimizing the network or detecting fraud." He noted that such algorithms can be very powerful, but "it's also very invasive," pulling in the private information of people who are not connected to any suspected crime.

In July post on Wired's Threat Level blog, Ryan Singel noted that the FBI has requested millions of dollars from Congress to pay "contractors" (most likely AT&T and Verizon) for "the development of data storage and retrieval systems" that will allow the FBI to request information and analysis for calling records going back two years. Those funds may be used to expand AT&T's ability to perform the kind of complex data analysis suggested by the "community of interest" requests.

Markey calls for FCC investigation

Yesterday, Ed Markey, the chairman of the House Subcommittee on Telecommunications and the Internet, wrote a letter to FCC chairman Kevin Martin urging him to begin an investigation of the numerous allegations of illegal activities by the FBI, NSA, and other intelligence agencies. Markey has been urging Martin to act for more than a year, and thus far, Martin has refused to begin an investigation, citing the Bush administration's state secrets claims. But Markey suggested that the recent statements of National Security Director Michael McConnell admitting that telecom companies have been assisting the government in its surveillance programs undermine those claims.

Markey could also have cited the July ruling by a federal judge that regulators in five states could launch investigations of carriers' alleged lawbreaking without running afoul of the state secret privilege. In that case, Judge Walker did not rule out the possibility that the government could later invoke the state secret privilege to shield some of the information sought by regulators, but he refused to shut down the investigations before they began.

In a Sunday interview with Fox News, White House Homeland Security Advisor Frances Fragos Townsend responded to questions about the latest revelations by pointing to the creation of a "compliance unit" in the FBI. We thought the Constitution already provided for a "compliance unit": the judicial branch.