When federal agents investigated a story Raymond Bonner wrote for The New York Times, they violated Department of Justice rules and his privacy in many of the ways Edward Snowden has suggested could happen
Over the past several months, the Obama Administration has defended the government’s far-reaching data collection efforts, arguing that only criminals and terrorists need worry. The nation’s leading internet and telecommunications companies have said they are committed to the sanctity of their customers’ privacy.
I have some very personal reasons to doubt those assurances.
In 2004, my telephone records as well as those of another New York Times reporter and two reporters from the Washington Post, were obtained by federal agents assigned to investigate a leak of classified information. What happened next says a lot about what happens when the government’s privacy protections collide with the day-to-day realities of global surveillance.
The story begins in 2003 when I wrote an article about the killing of two American teachers in West Papua, a remote region of Indonesia where Freeport-McMoRan operates one of the world’s largest copper and gold mines. The Indonesian government and Freeport blamed the killings on a separatist group, the Free Papua Movement, which had been fighting a low-level guerrilla war for several decades.
I opened my article with this sentence: “Bush Administration officials have determined that Indonesian soldiers carried out a deadly ambush that killed two American teachers.”
I also reported that two FBI agents had travelled to Indonesia to assist in the inquiry and quoted a “senior administration official” as saying there “was no question there was a military involvement.’’
The story prompted a leak investigation. The FBI sought to obtain my phone records and those of Jane Perlez, the Times bureau chief in Indonesia and my wife. They also went after the records of the Washington Post reporters in Indonesia who had published the first reports about the Indonesian government’s involvement in the killings.
As part of its investigation, the FBI asked for help from what is described in a subsequent government report as an “on-site communications service” provider. The report, by the Department of Justice’s Inspector General, offers only the vaguest description of this key player, calling it “Company A.’’
“We do not identify the specific companies because the identities of the specific providers who were under contract with the FBI for specific services are classified,’’ the report explained.
Whoever they were, Company A had some impressive powers. Through some means – the report is silent on how – Company A obtained records of calls made on Indonesian cell phones and landlines by the Times and Post reporters. The records showed whom we called, when and for how long -- what has now become famous as “metadata.”
Under DOJ rules, the FBI investigators were required to ask the Attorney General to approve a grand jury subpoena before requesting records of reporters’ calls. But that’s not what happened.
Instead, the bureau sent Company A what is known as an “exigent letter’’ asking for the metadata.
A heavily redacted version of the DOJ report, released in 2010, noted that exigent letters are supposed to be used in extreme circumstances where there is no time to ask a judge to issue a subpoena. The report found nothing “exigent’’ in an investigation of several three-year-old newspaper stories.
The need for an exigent letter suggests two things about Company A. First, that it was an American firm subject to American laws. Second, that it had come to possess my records through lawful means and needed legal justification to turn them over to the government.
The report disclosed that the agents’ use of the exigent letter was choreographed by the company and the bureau. It said the FBI agent drafting the letter received “guidance” from “a Company A analyst.’’ According to the report, lawyers for Company A and the bureau worked together to develop the approach.
Not surprisingly, “Company A” quickly responded to the letter it helped write. In fact, it was particularly generous, supplying the FBI with records covering a 22-month period, even though the bureau’s investigationwas limited to a seven-month period.Altogether, “Company A” gave the FBI metadata on 1,627 calls by me and the other reporters.
Only three calls were within the seven-month window of phone conversations investigators had decided to review.
It doesn’t end there.
The DOJ report asserts that “the FBI made no investigative use of the reporters’ telephone records.” But I don’t believe that is accurate.
In 2007, I heard rumblings that the leak investigation was focusing on a diplomat named Steve Mull, who was the deputy chief of mission in Indonesia at the time of the killings. I had known Mull when he was a political officer in Poland and I was posted there in the early 1990s. He is a person of great integrity and a dedicated public servant.
The DOJ asked to interview me. Of course, I would not agree to help law enforcement officials identify my anonymous sources. But I was troubled because I felt an honorable public servant had been forced to spend money on lawyers to fend off a charge that was untrue. After considerable internal debate, I decided to talk to the DOJ for the limited purpose of clearing Mull.
It was not a decision I could make unilaterally. The Times also had a stake in this. If I allowed myself to be interviewed, how could the Times say no the next time the government wanted to question a Times reporter about a leak?
The Times lawyer handling this was George Freeman, a journalist’s lawyer, a man Times reporters liked having in their corner. George and the DOJ lawyers began to negotiate over my interview. Eventually, we agreed that I would speak on two conditions: one, that they could not ask me for the name of my source; and two, if they asked me if it was ‘X,’ and I said no, they could not then start going through other names.
Freeman and I sat across a table from two DOJ lawyers. I’m a lawyer, and prided myself on being able to answer their questions with ease, never having to turn to Freeman for advice.
Until that is, one of the lawyers took a sheaf of papers that were just off to his right, and began asking me about phone calls I made to Mull. One call was for 19 minutes, the DOJ lawyer said, giving me the date and time. I asked for a break to consult with Freeman.
We came back, and answered questions about the phone calls. I said that I couldn’t remember what these calls were about – it had been more than four years earlier – but that Mull had not given me any information about the killings. Per our agreement, the DOJ lawyers did not ask further questions about my sources, and the interview ended.
I didn’t know how the DOJ had gotten my phone records, but assumed the Indonesian government had provided them. Then, about a year later, I received a letter from the FBI’s general counsel, Valerie Caproni who wrote that my phone records had been taken from “certain databases” under the authority of an “exigent letter,’’ (a term I had never heard).
Caproni sent similar letters to Perlez, to the Washington Post reporters, and to the executive editors of the Post and the Times, Leonard Downie and Bill Keller, respectively. In addition, FBI Director Robert Mueller called Downie and Keller, according to the report.
Caproni wrote that the records had not been seen by anyone other than the agent requesting them and that they had been expunged from all databases.
I’m uneasy because the DOJ report makes clear that the FBI is still concealing some aspect of this incident. After describing Caproni’s letters, the report says: “However, the FBI did not disclose to the reporters or their editors that [BLACKED OUT).” The thick black lines obliterate what appear to be several sentences.
Untitled Note (p. 115) http://www.propublica.org/documents/item/801274-fbi-ig-report-phonesurveilance-2010 - document/p115/a124414
http://www.propublica.org/documents/item/801274-fbi-ig-report-phonesurveilance-2010 - document/p115/a124414
If you were to ask senior intelligence officials whether I should wonder about those deletions, they’d probably say no.
I’m not so sure.
The government learned extensive details about my personal and professional life. Most of those calls were about other stories I was writing. Some were undoubtedly to arrange my golf game with the Australian ambassador. Is he now under suspicion? The report says the data has been destroyed and that only two analysts ever looked at it.
But who is this 'Company A" that willing cooperated with the government? Why was it working hand in glove with the FBI? And what did the FBI director not tell the editors of the Times and the Washington Post when he called them acknowledging the government had improperly obtained reporter's records?
Raymond Bonner, a lawyer and former New York Times reporter, is the author of "Anatomy of Injustice: A Murder Case Gone Wrong."
According to the apex court, introduction of a paper trail in EVMs during the next general elections in 2014 would ensure free and fair polls
The Supreme Court on Tuesday asked the Election Commission to introduce in a phased manner a paper trail in electronic voting machines (EVMs) for the next general elections in 2014, saying it will ensure free and fair polls.
The apex court also directed the Centre to provide financial assistance for introducing the vote verifier paper audit trail (VVPAT) system. A bench of Chief Justice P Sathasivam and Justice Ranjan Gogoi said, "The VVPAT in EVMs will ensure free and fair polls and will help in sorting out disputes."
The court’s order came on a plea of Bharatiya Janata Party (BJP) leader Dr Subramanian Swamy seeking a direction to the poll watchdog to ensure EVMs have a paper trail and issue a receipt to each voter.
The Election Commission had earlier told the court VVPAT was successfully and satisfactorily utilised at 21 polling stations in Nagaland during the Assembly elections in February this year.
The poll panel had also informed the bench that VVPAT can be introduced in a phased manner and cited administrative and financial reasons for it. It had said 13 lakh VVPAT machines would be needed for the general elections.
The Election Commission had said about Rs1,500 crore would be required for procuring VVPATs and installing it at all polling booths across the country for the Lok Sabha polls and there were only two State-owned companies — Bharat Electronics Ltd (BEL) and Electronics Corporation of India Ltd (ECIL) — which manufacture the machines.
Swamy had said both BEL and ECIL were capable of producing the number of machines required for the general elections.
In the VVPAT system, when a voter presses the button for the candidate of his choice in the EVM, a paper ballot containing the serial number, name and poll symbol of the candidate is printed, which can be verified by the voter.
A VVPAT is intended as an independent verification system for voting machines, designed to allow voters to verify that their votes were cast correctly, to detect possible election fraud or malfunction and to provide a means to audit the stored electronic results.
Following several complaints and reports by Moneylife, the Reserve Bank is understood to have directed Prof Dr Anil Pandya to step down as executive chairman of High Mark, the troubled and cash strapped credit bureau
Reserve Bank of India (RBI) is understood to have asked Prof Dr Anil Pandya to step down as executive chairman of troubled and cash strapped credit bureau High Mark Credit Information Services Pvt Ltd. Subsequently, Prof Dr Pandya has reportedly resigned from High Mark after the Board meeting and gone back to the US. Prof Dr Pandya was a tenured full professor at the College of Business, Northeastern Illinois University in Chicago, and an adjunct professor at Northwestern University Kellogg Graduate School of Management, according to High Mark's website.
Our mail sent to High Mark remained unanswered till writing the story. We would incorporate their response as and when we receive it.
In response to a Right to Information (RTI) application, the central bank had said, “Following complaints and adverse reports in media (mainly Moneylife) the RBI conducted an inspection of High Mark during May 2013.”
Earlier in August, the Central Vigilance Commission (CVC) has sought a factual report from the chief vigilance officer (CVO) of RBI in granting licence to High Mark.
This follows complaints from former executives of High Mark over the appointment of Prof Dr Pandya. They claimed while appointing Prof Dr Pandya, High Mark has violated Credit Information Companies Regulations (CICR) Act, 2005 (CICRA) as well as Companies Act.
While High Mark never appointed Prof Dr Pandya on a whole-time basis, he was able to continue teaching in the US as well was working with the credit bureau on a part-time basis. As per the CICR Act, when a credit bureau appoints chairman on a part-time basis, it then must have a managing director or full-time director to look after the management and affairs of the bureau.
Prof Dr Pandya has an employment contract with High Mark under which he was to devote his full time for the services of the company and was paid a salary of Rs60 lakh per annum. "However, over and above this, he was also entitled to a huge sum of money (Rs12.5 million or about $230,000) towards 'procurement of the in–principle license from RBI' (clause 4(b). Further payment of Rs30.25 million (around $560,000) was also made to him under clause 4(c)," said one of the executives who worked at High Mark.
High Mark, the only bureau started by individuals, has been under severe financial stress following the exit of several of its top managers and the failure of its rights issue. According to sources, the company has almost run through the Rs43 crore, it raised and was about to cease operations in couple of months, unless it finds a new investor. Last year, the credit bureau was negotiating with Italy-based credit bureau CRIF SpA for a bailout. High Mark was offered Rs30 per share by CRIF, which owns 9.09% stake in the Indian credit bureau. However, RBI rejected the proposal because of its reservations about CRIF’s ownership pattern.
Experian Credit Information Company of India Pvt Ltd (Experian India), one of the four credit information companies (CICs) in India, was in talks with High Mark and reportedly had also completed the due diligence process. According to the sources, Experian has increased its bid to Rs27 from Rs25 to buy minimum 26% stake in troubled and cash-strapped High Mark.
As Moneylife has been pointing out there is a dire need to have checks and balances in the quality of technology or data-matching algorithms used by credit bureaus in India. In addition, there is need to have proper redressal process for users, especially when these systems fail.
According to sources, the Reserve Bank has initiated an inspection of Credit Information Bureau (India) Ltd (CIBIL), following several complaints and media reports.
At Moneylife’s ‘Open House’ with RBI deputy governor Dr KC Chakrabarty on 3 June 2013, an angry customer stood up to complain about CIBIL, which practically enjoys a monopoly of the credit bureau business. On 4th June, we received an angry letter from one Umesh Dhawan whose Rs5-lakh loan was rejected because he was shown as a defaulter by CIBIL. He was under the impression that his banker had reported him. But we discovered that the problem was far worse. CIBIL apparently used its own algorithm to match data and ended up mixing his data with that of another person called Umesh Uhawan.
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