The good folks at the Electronic Frontier Foundation document — and I mean document — that the Charlotte Field Office of the FBI requested an illegal national security letter on a student at NC State. More troubling still is the fact that these events of 2005 were not reported internally until 2007, not to mention that EFF had to dig out the details here in 2008.
Reading between the lines, it seems that the FBI wanted to use an NSL because, at the time, recipients of the letters were automatically under a gag order not to disclose that existence of the letter.
In copious EFF detail:
It all began on July 13, 2005, when the agents from the FBI’s Charlotte field office sought educational records from North Carolina State University at Raleigh, first using a grand jury subpoena obtained in conjunction with the United States Attorney’s Office in the Eastern District of North Carolina (EDNC). The FBI worked with EDNC Judge Terrence Boyle to obtain a “sealed court order” to accompany the subpoena. The authorities were seeking information on Magdy Mahmoud Mustafa el-Nashar who, according to USA Today, “was a graduate student in chemical engineering for the spring 2000 semester at N.C. State.”
El-Nashar is an Egyptian bio-chemist who, after leaving N.C. State, obtained a Ph.D. in biochemistry from the University of Leeds in England in Spring 2005. The authorities were interested in his educational records since el-Nashar had met two of the London subway bombers, and allowed one to stay at his apartment in Leeds. According to the International Herald Tribune, he was held for questioning but eventually released without charge “after investigations proved he was not linked to the July 7 bombings.” Eventually news reports would reveal that “it was all a sorry coincidence, a case of a man who happened to befriend the wrong people at the wrong time.” However, at the time, USA Today reported, the “FBI was investigating el-Nashar’s activities in the USA at the request of British authorities.”
On July 14, USA Today reported that “Peter Kilpatrick, the head of N.C. State’s chemical engineering department, said he handed over his files on el-Nashar to FBI agents,” but did not explain what legal authority was used. A later Newsweek report stated “In the United States, FBI agents visited North Carolina State University and served a subpoena on Peter Kilpatrick, head of the school’s chemical- and biomolecular-engineering department, who handed over all available records pertaining to Nashar’s brief stint as a chemical-engineering student there in early 2000.” However, a Washington Post report later said that “the university did not honor” the first subpoena.
According to a 2007 FBI report, a Special Agent with the FBI’s Raleigh Resident Agency “served the subpoena and had some records in hand,” when he received a call from Michael Saylor, the Supervisory Senior Resident Agent (SSRA) for Raleigh. According a 2005 FBI email describing the incident, “this [grand jury subpoena] process was stopped at the direction of” FBI headquarters’ Counter-Terrorism Division. According to 2007 FBI documents, the Special Agent returned the records obtained by the original grand jury subpoena. …
Michael Saylor, the Raleigh SSRA, initially suggested that FBIHQ approve the NSL, but “was then instructed by FBIHQ, ITOS I, CONUS II, that Charlotte would be required to draft the NSL, due to time constraints.” An unidentified agent drafted the NSL. Since none of the 11 model NSLs forms are for educational records, the agent would have had to be creative. [A 2005 Model NSL]. An April 2005 memo from the National Security Law Branch required that “when an NSL is utilized, a copy of the EC [Electronic Communication] is properly reported and uploaded via established FBIHQ control files.” [A 2005 Model EC]. The three available options were “Subscriber and Toll Billing Records,” “Financial Records,” and “Consumer Credit Records.” Educational records were not an option. It is unclear what control file was used for this NSL.
The NSL was reviewed by Saylor and then approved by Gregory Jones, the Special Agent in Charge of the Atlanta division (Kevin Kendrick, the Charlotte SAC not being available in time). Pursuant to the expansions of the NSL power in the Patriot Act, no more senior personal was required to authorize the letter. A Joint Terrorism Task Force (JTTF) Agent served the NSL on July 14. According to the DOJ Inspector General report, “the NSL sought several categories of records, including applications for admission, housing information, emergency contacts, and campus health records.”
According to news reports, David T. Drooz, the university’s senior associate counsel, refused to comply because these records are outside scope of the NSL authority. The NSL was issued pursuant to the Electronic Communications Privacy Act (18 U.S.C. § 2709), as expanded by Section 505 of the USA PATRIOT Act. Under the statute, the FBI is only authorized to used the letters seek “subscriber information and toll billing records information, or electronic communication transactional records,” not educational records. This is not a legal gray area – there is no dispute that educational records are outside the scope of NSL authority.
Almost two year later, the DOJ Inspector General would agree with the university’s assessment, concluding “the FBI sought records it was not authorized to obtain pursuant to an ECPA national security letter.” Indeed, even the FBI’s FAQ on NSLs confirms that NSLs are only for “billing and transactional communication service provider records from telephone companies and internet service providers.” The FBI’s guidance on NSLs is no different, listing “seven variations of the three NSL types,” none of which include educational records. Eventually, the Office of the General Counsel would conclude that “Charlotte served an NSL requesting records outside the permissible scope of an NSL.”
EFF also runs down numerous unanswered questions about the incident, but I would like to know if anyone associated with the Charlotte office was disciplined in any way.
