July 26, 2001

Sen. Patrick J. Leahy, Chairman
Sen. Orrin G. Hatch, Ranking Member
Senate Judiciary Committee
United States Senate
224 Dirksen Office Building
Washington, DC 20510

Re: Nomination of Robert S. Mueller

Dear Chairman Leahy, Senator Hatch and Members of the Senate Judiciary Committee:

As the Committee prepares to consider the nomination of Robert S. Mueller to be Director of the Federal Bureau of Investigation (FBI), we are writing to urge the Committee to include privacy protection and compliance with the Freedom of Information Act (FOIA) in its inquiry. As we set forth below, these issues include FBI use of new surveillance and investigative technologies, including the Carnivore system; FBI access to personal information contained in private sector databases; and full and timely compliance with the disclosure requirements of the FOIA.

New Technologies

Given the increased public concern over the use of new and potentially invasive technologies by law enforcement agencies, it would be appropriate to solicit Mr. Mueller’s views on this issue. While the FBI’s use of the Carnivore Internet surveillance system properly has been the subject of much public discussion, other technologies increasingly are being employed by the FBI and the law enforcement community. These include video surveillance systems, sophisticated imaging devices and a wide range of biometric applications such as facial recognition and retinal scans.

As the Supreme Court recently recognized in Kyllo v. United States, 533 U. S. ____ (2001), "[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology." When law enforcement employs invasive technology that is not in "general public use," it must do so in a manner that "assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." In light of the Kyllo decision, we believe it is imperative that Mr. Mueller address this issue, which he will clearly confront as Director of the FBI.

With respect to the Carnivore system (now designated within the Bureau as DCS 1000), many questions remain unanswered since the FBI’s use of the system came to light over a year ago. Through our pending FOIA litigation concerning Carnivore, it appears that neither the FBI nor the Justice Department conducted an analysis of the legality or constitutionality of the surveillance technique prior to its deployment. Despite the fact that the independent technical review team retained by the Justice Department recommended modifications to Carnivore last December, those changes have not yet been implemented. In addition to the recommendations of the technical review team, EPIC and other privacy groups have urged Attorney General Ashcroft to cure Carnivore’s fundamental constitutional defect by placing the system in the control of the relevant Internet service provider rather than the FBI. While the Attorney General recently announced that a new review of Carnivore is now underway, we believe that Mr. Mueller’s views on this matter should be explored.

Access to Private Sector Databases

One of the most troubling law enforcement developments to arise in recent years is the increased reliance of investigative agencies on personal information contained in databases compiled by the private sector. Through their access to these systems, the FBI and other agencies routinely obtain a vast range of personal data, the direct collection of which would appear to be prohibited by the Privacy Act of 1974. As the Wall Street Journal reported earlier this year, private data vendors "specialize in doing what the law discourages the government from doing on its own -- culling, sorting and packaging data on individuals from scores of sources, including credit bureaus, marketers and regulatory agencies." (See attached article).

One such company, ChoicePoint, Inc., has a particularly close relationship with the FBI. The company maintains a specialized website, "ChoicePoint Online for the FBI" (www.cpfbi.com), to process data queries from the Bureau. Last year, the Justice Department’s contract with the company reportedly grew to $8 million. We urge the Committee to seek Mr. Mueller’s opinions on the propriety of such arrangements.

FOIA Compliance

As frequent users of the Freedom of Information Act, we have a particular interest in Mr. Mueller’s familiarity with and commitment to the Act’s disclosure requirements. The FBI’s problems with FOIA compliance are legendary, and it is not at all uncommon for information requests to languish at the Bureau for many years.

The FBI’s resistance to public disclosure and oversight appears to be deeply ingrained. Norman J. Rabkin of the General Accounting Office recently testified before this Committee concerning the GAO’s experience with the Bureau.

While over time we have experienced access-to-records problems at different federal agencies, our experience at the FBI is by far our most contentious among law enforcement agencies. The FBI's reluctance to consistently honor our statutory rights of access has forced us to expend significant energy and resources. The FBI has also limited our ability to respond to our clients -- congressional committees and individual Members of Congress -- in a timely and efficient way.

Prepared Statement of Norman J. Rabkin, General Accounting Office, Before the Senate Judiciary Committee, June 20, 2001.

When the GAO has such problems, the Committee can well imagine the difficulty that average citizens, journalists and public interest organizations encounter when attempting to utilize FOIA’s access provisions to learn about FBI activities. As Director of the Bureau, Mr. Mueller would be uniquely situated to remedy this chronic deficiency. We strongly urge the Committee to elicit a commitment from Mr. Mueller to address this issue quickly and decisively.

We appreciate your consideration of the foregoing suggestions and would be pleased to assist the Committee in its ongoing oversight of the FBI.

 

Sincerely,

 

Marc Rotenberg
Executive Director

David L. Sobel
General Counsel

 

Enclosure:

"If the FBI Hopes to Get the Goods on You, It May Ask ChoicePoint," Wall Street Journal, pg. 1, April 13, 2001.

cc: Members of the Senate Judiciary Committee

 

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