In Secret Battle, Surveillance Court Reined in FBI Use of Information Obtained From Phone Calls

Beginning over a decade ago, the country’s surveillance court intervened to limit the FBI’s ability to act on some sensitive information that it collected while monitoring phone calls. The wrangling between the FBI and the secret court is contained in previously undisclosed documents obtained by the Electronic Privacy Information Center, or EPIC. The documents reveal that the Foreign Intelligence Surveillance Court (FISA) told the FBI several times between 2005 and 2007 that using some incidental information it collected while monitoring communications in an investigation — specifically, numbers people punch into their phones after they’ve placed a call — would require an explicit authorization from the court, even in an emergency.

“The newly obtained summaries are significant because they show the power that the [Foreign Intelligence Surveillance Court] has to limit expansive FBI surveillance practices,” said Alan Butler, an attorney for EPIC. Additionally, sections of the FBI’s 2011 Domestic Investigations and Operations Guide described how the FBI currently deals with information it obtains after getting a court order for what’s called a “pen register,” or “trap and trace” on a target — a capability built into the phone lines that records incoming and outgoing phone numbers for a particular phone. The 2011 guide is currently public but heavily redacted. The Operations Guide, in addition to shedding light on how the FBI uses pen registers, reveals that the surveillance court’s pushback more than a decade ago has become internal FBI policy.