F.B.I. Data Mining Reached Beyond Target Suspects

WASHINGTON, Sept. 8 — The F.B.I. cast a much wider net in its terrorism investigations than it has previously acknowledged by relying on telecommunications companies to analyze phone-call and e-mail patterns of the associates of Americans who had come under suspicion, according to newly obtained bureau records.

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The concept has strong government proponents who see it as a vital tool in predicting and preventing attacks, and it is also thought to have helped the National Security Agency identify targets for its domestic eavesdropping program. But privacy advocates, civil rights leaders and even some counterterrorism officials warn that link analysis can be misused to establish tenuous links to people who have no real connection to terrorism but may be drawn into an investigation nonetheless.
Typically, community of interest data might include an analysis of which people the targets called most frequently, how long they generally talked and at what times of day, sudden fluctuations in activity, geographic regions that were called, and other data, law enforcement and industry officials said.

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The requests for such data showed up a dozen times, using nearly identical language, in records from one six-month period in 2005 obtained by a nonprofit advocacy group, the Electronic Frontier Foundation, through a Freedom of Information Act lawsuit that it brought against the government. The F.B.I. recently turned over 2,500 pages of documents to the group. The boilerplate language suggests the requests may have been used in many of more than 700 emergency or “exigent” national security letters. Earlier this year, the bureau banned the use of the exigent letters because they had never been authorized by law. ..... A federal judge in Manhattan last week struck down parts of the USA Patriot Act that had authorized the F.B.I.’s use of the national security letters, saying that some provisions violated the First Amendment and the constitutional separation of powers guarantee. In many cases, the target of a national security letter whose records are being sought is not necessarily the actual subject of a terrorism investigation and may not be suspected at all. Under the Patriot Act, the F.B.I. must assert only that the records gathered through the letter are considered relevant to a terrorism investigation.

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Some legal analysts and privacy advocates suggested that the disclosure of the F.B.I.’s collection of community of interest records — extending the link even further beyond an actual suspect in a terrorism investigation — offered another example of the bureau exceeding the substantial powers already granted it by Congress.
“This whole concept of tracking someone’s community of interest is not part of any established F.B.I. authority,” said Marcia Hofmann, a lawyer for the Electronic Frontier Foundation, which provided the records from its lawsuit to The New York Times. “It’s being defined by the F.B.I. And when it’s left up to the F.B.I. to decide what information is relevant to their investigations, they can vacuum up almost anything they want.”

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Such “analysis is extremely powerful and very revealing because you get these linkages between people that wouldn’t be otherwise clear, sometimes even more important than the content itself” of phone calls and e-mail messages, he said. “But it’s also very invasive. There’s always going to be a certain amount of noise,” with data collected on people who have no real links to suspicious activity, he said.
Officials at other American intelligence agencies, like the National Security Agency and the Central Intelligence Agency, have explored using link analysis to trace patterns of communications sometimes two, three or four people removed from the original targets, current and former intelligence officials said. But critics assert that the further the links are taken, the less valuable the information proves to be.

Some privacy advocates said they were troubled by what they saw as the F.B.I.’s over-reliance on technology at the expense of traditional investigative techniques that rely on clearer evidence of wrongdoing.
“Getting a computer to spit out a hundred names doesn’t have any meaning if you don’t know what you’re looking for,” said Michael German, a former F.B.I. agent who is now a lawyer for the American Civil Liberties Union. “If they’re telling the telephone company, ‘You do the investigation and tell us what you find,’ the relevance to the investigation is being determined by someone outside the F.B.I.”