U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

55–939 PDF 2010

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 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

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 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

SHEILA JACKSON LEE, Texas 

JUDY CHU, California 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

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 

(1) 

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 ilVerDate Aug 31 2005 15:58 Jun 09, 2010 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\CONST\041410\55939.000 HJUD1 PsN: 55939
2 

legally 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. Selfregulation, 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 

31⁄2 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 

3 

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 headVerDate Aug 31 2005 15:58 Jun 09, 2010 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\CONST\041410\55939.000 HJUD1 PsN: 55939
4 

quarters 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. 

5 

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:] 

6 

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


HJJ-1.eps
7 


HJJ-2.eps
8 

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. 

9 

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. 

10 

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:] 

11 

PREPARED STATEMENT OF THE HONORABLE GLENN A. FINE


Fine-1.eps
12 


Fine-2.eps
13 


Fine-3.eps
14 


Fine-4.eps
15 


Fine-5.eps
16 


Fine-6.eps
17 


Fine-7.eps
18 


Fine-8.eps
19 


Fine-9.eps
20 


Fine-10.eps
21 


Fine-11.eps
22 


Fine-12.eps
23 

Mr. NADLER. Thank you. 

I now recognize Ms. Caproni. 


Fine-13.eps
24 

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 31⁄2 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 

25 

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:] 

26 

PREPARED STATEMENT OF VALERIE E. CAPRONI


VEC-1.eps
27 


VEC-2.eps
28 


VEC-3.eps
29 


VEC-4.eps
30 


VEC-5.eps
31 


VEC-6.eps
32 


VEC-7.eps
33 


VEC-8.eps
34 


VEC-9.eps
35 


VEC-10.eps
36 


VEC-11.eps
37 

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 


VEC-12.eps
38 

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—— 

39 

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 reVerDate Aug 31 2005 15:58 Jun 09, 2010 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6601 H:\WORK\CONST\041410\55939.000 HJUD1 PsN: 55939
40 

view 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. 

41 

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. 

42 

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 

43 

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? 

44 

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. 

45 

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. 

46 

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 highVerDate Aug 31 2005 15:58 Jun 09, 2010 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 H:\WORK\CONST\041410\55939.000 HJUD1 PsN: 55939
47 

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 

48 

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? 

49 

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, 

50 

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.] 

Æ