In 2007, it was revealed that the FBI had been seeking “community of interest” or “call¬ing circle” records from several telecommunications providers . These records might include an analysis of which people the targets called most frequently, how long they gen¬erally talked and at what times of day, sudden fluctuations in activity, geographic regions that were called, and other data. A subsequent investigation by the Inspector General of the Department of Justice found the FBI had widely abused its surveillance powers, in¬cluding the use of community of interest requests.
The community of interest data sought by the F.B.I. is central to a data-mining technique intelligence officials call link analysis. Since the attacks of Sept. 11, 2001, American counterterrorism officials have turned more frequently to the technique, using communications patterns and other data to identify suspects who may not have any other known links to extremists.
AT&T routinely provided the FBI with the “community of interest” profiles of its customers without any legal process.
The Criminal Division and the OIG asked the Department’s Office of Legal Counsel (OLC) to opine on the question when the notification provision in the regulation would be triggered. OLC concluded in an informal written opinion dated January 15, 2009, that the notification requirement would be triggered if, using an “objective” standard and based on the totality of the circumstances, a reasonable Department of Justice official responsible for reviewing and approving such subpoenas would understand the language of the subpoenas to call for the production of the reporters’ telephone toll numbers, the subpoenas would be subject to the notification requirement of subsection (g)(3), regardless of the subjective intent of the individuals who prepared them.
The OLC opinion also concluded that the notification requirement would be triggered even if a reporter’s toll records were not in fact collected in response to such a subpoena.
Based on the OLC opinion, the Criminal Division concluded that it was not required to notify the reporters because it believed that neither the [the prosecutor who generated the subpoena] nor the case agent understood at the time the subpoenas were issued that the subpoenas called for reporters’ records.
Now, ultimately the IG accepts the prosecutor and case agent’s descriptions that they had no idea the subpoena, as written, would collect reporters information. That, in spite of the fact that the case officer,
Asked for a subpoena–in an investigation where a reporter was known to have contact with the suspected leaker–”that is as encompassing as possible.” They explained they had to use what appears to be a community of interest request to get local calls. They may have told the prosecutor it would not include the known journalist contact of the target.
Denied having told the prosecutor the subpoena wouldn’t collect reporter information.
Also note, the IG appears not to have asked the telecom analyst about this at all. And the IG only discovered this issue because the prosecutor was involved in the exigent letters targeted at Ellen Nakashima.