[ISN] Memo: FBI destroyed evidence in bin Laden case after glitch with e-mail surveillance system

From: InfoSec News (isnat_private)
Date: Wed May 29 2002 - 02:46:53 PDT

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    AP Technology Writer 
    Tuesday, May 28, 2002 
    An internal FBI memo says agents destroyed evidence gathered in an
    investigation involving Osama bin Laden's network after its e-mail
    wiretap system mistakenly captured information to which the agency was
    not entitled.
    The FBI software not only picked up the e-mails of its target "but
    also picked up e-mails on non-covered targets," said a March 2000 memo
    to agency headquarters in Washington.
    "The FBI technical person was apparently so upset that he destroyed
    all the e-mail take, including the take on" the suspect, the memo
    A Justice Department official, speaking on condition of anonymity,
    said Tuesday night that the e-mails were not destroyed. The official
    did not elaborate or try to reconcile the statement with the memo.
    The episode was described in documents made public through a Freedom
    of Information Act request filed by the Electronic Privacy Information
    Center, a Washington advocacy group. The material was not included in
    an original release but became public after a federal judge ordered
    the bureau to give out more documents.
    At issue was an investigation in Denver in which the FBI's bin Laden
    unit was using the bureau's Carnivore system to conduct electronic
    surveillance of a suspect under a Foreign Intelligence Surveillance
    Act warrant.
    The suspect's name and other information identifying details of the
    investigation were marked out of the letter.
    The memo surfaced as the FBI was addressing concerns it mishandled
    aspects of terrorism investigation prior to the Sept. 11 attacks.  
    Those concerns include a warning from its Phoenix office about Arab
    pilots training in the United States last July.
    As an outgrowth of that and other much-criticized FBI actions before
    the attacks, the agency is to form a new office of intelligence and
    strengthen its oversight of counterterror investigations. Attorney
    General John Ashcroft and FBI Director Robert Mueller were expected to
    outline high-profile changes Wednesday at the FBI's headquarters,
    including closer ties to the CIA and an overhaul of the FBI's outdated
    computer systems.
    FBI officials refused on Tuesday to discuss the Carnivore memo or the
    investigation it referred to. They did, however, say that the bin
    Laden unit at FBI headquarters handles only investigations involving
    suspected activity by his terror network.
    The memo shows FBI agents were worried about the fallout in the Denver
    The Justice Department's Office of Intelligence and Policy Review was
    furious after learning the evidence captured by the e-mail wiretap
    system was destroyed because of the glitch, the memo states.
    "To state that she was unhappy at ITOS (International Terrorism
    Operations Center) and the UBL (bin Laden) unit is an understatement,"  
    the memo stated, quoting a Justice official.
    The memo said Justice officials worried the destruction of the
    evidence would signal an "inability on the part of the FBI to manage"  
    the warrants that are key tools in espionage and anti-terrorism cases.
    Privacy groups and some members of Congress have complained that
    Carnivore had the potential to collect more information than allowed
    by a warrant.
    "Here's confirmation of the fact that not only did it do that, but it
    resulted in a loss of legitimately acquired intelligence," said David
    Sobel, general counsel of EPIC.
    To allay Congress's concerns, FBI General Counsel Larry Parkinson
    testified in July 2000, "We do not deploy (Carnivore) in a way that
    exceeds the court order."
    The e-mail from an unnamed author to M.E. "Spike" Bowman, the FBI's
    associate general counsel for national security, said Denver agents
    installed the e-mail surveillance system in March 16, 2000, but the
    device did not work correctly.
    Henry Perritt, who led a team authorized by the FBI to review the
    surveillance system, said he was surprised the technician deleted the
    "The collection is supposed to be retained for judicial review,"  
    Perritt said. "If an agent simply deleted a whole bunch of files
    without the court instructing, that's not the way it's supposed to
    Another document released through the privacy group's request explains
    the bureau's policy for overcollection on a surveillance warrant. The
    memo, dated just a week after the Denver e-mail, says the e-mails
    should be kept under seal so that senior FBI officials can figure out
    how the wiretap went wrong.
    The unintended targets of the FBI's snooping may have deserved
    notification that the mistake was made, the FBI memo said.
    Authorities have used Carnivore-type tools more than 25 times in all
    types of criminal cases, to catch fugitives, drug dealers,
    extortionists and suspected foreign intelligence agents. Carnivore is
    now called DCS-1000.
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