Feds paid private brokers for phone records

Farmed out to private investigators
The athlete was “shocked to learn somebody had obtained this information,” said Mark Termini, his lawyer and agent in Cleveland. “When a person or agency is able to obtain by fraudulent means a person’s personal information, that is something that should be prohibited by law.”

PDJ’s lawyer said no one at the company violated laws, but he acknowledged, “I’m not sure that every law enforcement agency in the country would agree with that analysis.”

Many of the executives summoned to testify before Congress this week were expected to invoke their Fifth Amendment rights against self-incrimination and to decline to answer questions.

Slade said no one at PDJ impersonated customers to steal personal information, a practice known within the industry as pretexting.

“This was farmed out to private investigators,” Slade said. “They had written agreements with their vendors, making sure the vendors were acquiring the information in legal ways.”

‘Encouraging unlawful contact’
Privacy advocates bristled over data brokers gathering records for police without subpoenas.

“This is pernicious, an end run around the Fourth Amendment,” said Marc Rotenberg, head of the Washington-based Electronic Privacy Information Center, a leading privacy group that has sought tougher federal regulation of data brokers. “The government is encouraging unlawful conduct; it’s not smart on the law enforcement side to be making use of information obtained improperly.”

A federal agent who ordered phone records without subpoenas about a half-dozen times recently said he learned about the service from FBI investigators and was told this was a method to obtain phone subscriber information quicker than with a subpoena.

The agent, who spoke only on condition of anonymity because he is not authorized to speak with reporters, said he and colleagues use data brokers “when he have the need to act fairly quickly” because getting a subpoena can involve lengthy waits.

Waiting for a phone company’s response to a subpoena can take several days or up to 45 days, said police supervisor Eric Stasiak of Redwood City, Calif. In some cases, a request to a data broker yields answers in just a few hours, Stasiak said.

‘That should be fine’
Legal experts said law enforcement agencies would be permitted to use illegally obtained information from private parties without violating the Fourth Amendment’s protection against unlawful search and seizure, as long as police did not encourage any crimes to be committed.

“If law enforcement is encouraging people in the private sector to commit a crime in getting these records that would be problematic,” said Mark Levin, a former top Justice Department official under President Reagan. “If, on the other hand, they are asking data brokers if they have any public information on any given phone numbers that should be fine.”

Levin said he nonetheless would have advised federal agents to use the practice only when it was a matter of urgency or national security and otherwise to stick to a legally bulletproof method like subpoenas for everyday cases.

Congress subpoenaed thousands of documents from data brokers describing how they collected telephone records by impersonating customers.

“I was shot down four times,” Michele Yontef complained in an e-mail in July 2005 to a colleague. “I keep getting northwestern call center and they just must have had an operator meeting about pretext as every operator is clued in.”

Yontef, who relayed another request for phone call records as early as February, was among those ordered to appear at this week’s hearing.

‘We must break ... rules’
Another company years ago even acknowledged breaking the law.

“We must break various rules of law in acquiring all the information we achieve for you,” Touch Tone Information Inc. of Denver wrote to a law firm in 1998 that was seeking records of calls made on a calling card.

The FBI’s top lawyers told agents as early as 2001 they can gather private information about Americans from data brokers, even information gleaned from mortgage applications and credit reports, which normally would be off-limits to the government under the U.S. Fair Credit Reporting Act.

FBI lawyers rationalized that even though data brokers may have obtained financial information, agents could still use the information because brokers were not acting as a consumer-reporting agency but rather as a data warehouse.

The FBI said it relies only on well-respected data brokers and expects agents to abide by the law. “The FBI can only collect and retain data available from commercial databases in strict compliance with applicable federal law,” spokesman Mike Kortan said Monday.

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