The Federal Bureau of Investigation's Compliance
with the Attorney General's Investigative Guidelines
(Redacted)

Special Report
September 2005
Office of the Inspector General


Chapter Six: Procedures for Lawful, Warrantless
Monitoring of Verbal Communications
(Consensual Monitoring)


In this chapter we discuss the role of consensual monitoring in FBI investigations, the requirements of the Consensual Monitoring Guidelines, the May 2002 revisions to the Guidelines, and the results of our compliance review of consensual monitoring files in FBI field offices. We then provide our analysis and recommendations based on those findings and on our surveys and interviews of Headquarters and field personnel.

  1. Role of Consensual Monitoring
  2. Consensual monitoring is the interception by an electronic device of any wire, oral, or electronic communication where one of the parties to the communication has given prior consent to the monitoring or recording. A warrant is not required to conduct consensual monitoring, and the party providing consent may be a government agent. See 18 U.S.C. 2511, (2) (c) - (e) (2002).

    The Attorney General Guidelines governing consensual monitoring cover only non-telephonic consensual monitoring.319 The types of monitorings addressed by these Guidelines include the use of body recorders and transmitting devices. To supplement the Guidelines, the FBI imposes detailed administrative and management controls on the use of both non-telephonic and telephonic consensual monitoring. MIOG II 10-10.

    Non-telephonic consensual monitoring is one of many electronic surveillance techniques available to investigators. Other techniques include dialed number recorders, "trap and trace" devices, and wiretaps. Dialed number recorders, sometimes called "pen registers," capture electronic impulses generated by a telephone line. The data includes call information such as the telephone numbers dialed, date and time of the activity, and other special services subscribed to by the target through the telephone company, such as caller-ID, call forwarding, conference calls, and call waiting. A "trap and trace" device records the originating phone numbers of all incoming calls on a particular phone line. A wiretap is the interception of oral, wire, and electronic communications.320 While all of these techniques require a warrant or court order, only wiretaps provide investigators with the record of the conversation. The advantage of consensual monitoring over the methods described above is that no warrant is required and the investigator can obtain a record of the conversation.

  3. Significant Requirements
  4. In this section we summarize the requirements of the Consensual Monitoring Guidelines, including those relating to authorizations, application requirements, and recordkeeping.

    The Consensual Monitoring Guidelines establish separate authorization procedures for consensual monitorings that require written approval from the DOJ, those that may be authorized by an FBI Special Agent in Charge (SAC) or Assistant Special Agent in Charge (ASAC), and those that may be authorized in emergency situations.

    Section II.A of the Consensual Monitoring Guidelines requires DOJ approval for monitorings that concern certain categories of public officials and others, such as members of Congress and state Governors.321 When an investigation relates to such persons, requests for authorization must be approved in writing by the Director or Associate Director of the Office of Enforcement Operations of the Criminal Division of DOJ.322 In addition, the FBI requires that a SAC or ASAC must approve requests to conduct non-telephonic consensual monitoring in both sensitive and non-sensitive matters, as described below. MIOG II 10-10.3(1) and (3).

    The Guidelines specify that the application to conduct consensual monitoring must address eight factors: 1) the reasons for the monitoring; 2) if the monitoring is for investigative purposes, a citation to the principal criminal statute involved; 3) the nature of any danger to the consenting party if the monitoring is designed for protection; 4) the location of the monitoring device; 5) the location and primary judicial district where the monitoring will take place; 6) the length of time needed for the monitoring, but in no event more than 90 days from the day the monitoring is scheduled to begin; 7) the names of the persons, if known, who will be monitored; and 8) whether the facts of the surveillance have been discussed with the U.S. Attorney, Assistant U.S. Attorney, or DOJ attorney responsible for a particular investigation, and that the attorney advises that the consensual monitoring is appropriate under the Guidelines. Requests for renewal of such authorizations must contain all the information required for the original application and must explain why the additional monitoring is needed. Consensual Monitoring Guidelines III.A(1)-(9).

    The authorization procedures for consensual monitorings that do not require DOJ approval (non-sensitive monitorings) are set forth in Section V of the Guidelines. That section states that permission for such monitorings must come from the head of the agency or his or her designee. In the case of the FBI, this may be a SAC or ASAC. As with sensitive monitorings, the FBI must obtain advice from a U.S. Attorney, Assistant U.S. Attorney, or DOJ attorney responsible for the investigation that the proposed monitoring is legal and appropriate. Consensual Monitoring Guidelines V.

    The Guidelines further require that agencies maintain records for all consensual monitorings that they have conducted. Id. The FBI has developed Form FD-759, captioned "Notification of SAC/ASAC Authority Granted for Use of Telephonic and/or Nontelephonic Consensual Monitoring Equipment in Criminal Matters Only," to document approval by a SAC or ASAC for the use of consensual monitoring equipment in both sensitive and non-sensitive matters. Form FD-759 addresses the eight factors listed above. In addition, for sensitive monitorings, this form must be accompanied by a letterhead memorandum that addresses the same eight factors. MIOG II 10-10.3(9).

    The Guidelines do not identify the requirements necessary to obtain approval for non-sensitive monitorings. Part V does, however, require that records for non-sensitive monitorings must be maintained that contain all the information required for sensitive monitorings, including the time needed for the monitoring and documentation of the required attorney advice.323

    The Guidelines also provide authorization procedures for monitoring requests in emergency situations. Emergency requests in cases in which DOJ approval is required may be made by telephone to the DOJ Criminal Division and later reduced to writing as soon as practicable after authorization has been obtained. The Guidelines require that oral requests include all the information contained in written requests, and that documentation relating to the oral authorization be maintained in an appropriate filing system. Consensual Monitoring Guidelines III.B. The MIOG provides that emergency requests for sensitive monitorings may be authorized verbally by DOJ. MIOG Part II, 10-10.3(1). In addition, the Guidelines state that "each department or agency shall establish procedures for emergency authorizations in cases involving non-sensitive circumstances similar to those that apply with regard to cases that involve . . . sensitive circumstances . . . ." Consensual Monitoring Guidelines V. The MIOG, however, does not contain provisions that implement this requirement.

    The duration of authorizations for sensitive monitorings is addressed in III.A.6 of the Guidelines, which requires monitoring requests to state the amount of time needed to perform the monitoring and limits monitoring periods to no more than 90 days. Extensions for additional periods of up to 90 days may be obtained provided a demonstration is made of the need for continued monitoring. Consensual Monitoring Guidelines III.A.6. Section V of the Guidelines requires records for non-sensitive monitorings to contain all the information required for sensitive monitorings, including the time needed for the monitoring.

    The MIOG restates the Guidelines' language regarding authorization periods for sensitive monitorings. MIOG II 10-10.3(9)(f). For non-sensitive monitorings, the MIOG provides that non-telephonic consensual monitoring (NTCM) in criminal matters may be approved by the SAC for the duration of the investigation. Id. 10-10.3(1) and (3).

  5. Major Revisions to the Consensual Monitoring Guidelines
  6. The May 2002 revisions to the Consensual Monitoring Guidelines relaxed administrative requirements associated with the authorization of consensual monitoring. The most significant revisions included the following.

    • Removing the requirement to obtain concurrence or authorization from a federal prosecutor for consensual monitorings. Instead, the prosecutor must advise that the proposed monitoring is legal and appropriate.324 When the attorney cannot provide this advice for reasons unrelated to the legality or propriety of the monitoring, the required advice may be obtained from a designated attorney in the DOJ's Criminal Division.

    • Allowing delegations of authority to approve monitorings to ASACs in certain circumstances, such as monitorings that do involve sensitive persons or circumstances.

    At the time the Guidelines were revised, trial attorneys were sometimes constrained by state ethics rules from providing advice regarding monitorings that were legally appropriate.325 An additional concern was that the existing requirement of obtaining approval by a SAC for consensual monitorings could "result in a loss of investigative opportunities because of an overly long approval process," and hence it was necessary to delegate authority to ASACs to "facilitate FBI investigative operations." 326

  7. The OIG Review of the FBI's Compliance with the Consensual Monitoring Guidelines
  8. To assess the FBI's compliance with the Consensual Monitoring Guidelines, we reviewed the documentation supporting 103 consensual monitoring "overhears" (i.e., the recorded verbal communication captured by the monitoring device) in 11 field offices. For each monitoring we examined the following key requirements of the Guidelines.

    • Was the monitoring approved before the recording began?

    • Did the FBI obtain written approval from the DOJ when the monitoring involved "sensitive" individuals identified in the Consensual Monitoring Guidelines?

    • Did the FBI document that the facts of the surveillance were discussed with the responsible prosecutor and that the prosecutor advised that the consensual monitoring was legal and appropriate?

    • Did the FBI renew the monitoring when appropriate?

  9. Compliance Findings
  10. As noted above, the MIOG requires that FBI Special Agents request authorization to conduct non-telephonic consensual monitorings on Form FD-759. Because this Form collects information on all of the Guidelines issues we examined, including required written approval from SACs or ASACs, our review concentrated on the information provided on the Form. We found the following.

    • Overhear recordings were made in 9 of the 103 monitorings prior to the authorization date on Form FD-759.

    • 2 of the 103 monitorings required written DOJ approval because they involved the monitoring of "sensitive" individuals. The file relating to one of these monitorings did not contain documentation indicating that DOJ had been contacted for approval.

    • Agents recorded that an Assistant U.S. Attorney had advised that the monitorings were legal and appropriate in each of the 103 monitorings.327

    • One of the 103 overhear recordings, which related to the investigation of a "sensitive" individual, occurred over 90 days after approval by the SAC or ASAC, but no documentation was included in the file indicating that an extension was requested.328

    Recording Overhears Prior to SAC or ASAC Approvals

    The Guidelines require that a SAC or ASAC authorize monitoring requests in circumstances where the Guidelines do not require written DOJ approval (i.e., when monitoring non-sensitive persons). In addition, the MIOG requires SAC or ASAC approval in addition to DOJ authorization in sensitive monitorings.

    Ten of the FD-759s we reviewed recorded approval dates by the SAC or ASAC after the first overhear was recorded. This number does not include those instances when the Form FD-759 contained a notation that approval was granted verbally prior to the first recording. The recording of overhears occurred from between 1 and 59 days prior to receiving approval by the SAC or ASAC, as shown below.

    TABLE 6.1

    OIG Compliance Findings on Consensual Monitorings Conducted
    Without Written Authorization in Select FBI Field Offices

    Number of
    Violations
    Number of Days From
    First Overhear to
    First Authorization
    Field Office
    2 1 Field Offices 5 & 6
    1 3 Field Office 2
    1 24 Field Office 4
    1 25 Field Office 12
    1 27 Field Office 12
    1 56 Field Office 12
    1 58 Field Office 1
    1 59 Field Office 1

    According to our interviews of field office personnel, when recordings were made within a few days of the approvals by the SAC or ASAC, the case agents received oral approvals from the managers prior to the recordings. However, the oral approvals were not noted on the Form FD-759, and we were provided no other evidence of the approvals in response to our request for documentation.

    Monitorings Requiring DOJ Approval

    Section II.A of the Consensual Monitoring Guidelines requires written authorization by the DOJ Criminal Division's Office of Enforcement Operations for consensual monitoring of "sensitive" persons. To implement this provision, the MIOG requires that, in addition to the submission of the Form FD-759, the field office must provide a memorandum to FBI Headquarters for transmission to DOJ describing the information required by the Guidelines. Our review found that of two monitorings we reviewed that required DOJ approval, one was supported by documentation indicating that such approval had been received and the other was not.

    Attorney Advice

    Our review of consensual monitoring files revealed that case agents always recorded information regarding their receipt of advice that the proposed monitoring was legal and appropriate. We did not encounter any instances in which an Assistant U.S. Attorney refused to provide advice based on concerns related to the McDade law.329

    Length of Time Authorized for Monitoring

    Section III.A of the Consensual Monitoring Guidelines lists the information that must be included in any request to monitor an oral communication that requires written DOJ approval. Section III.A.6 provides that the request must state the length of time needed for the monitoring and that an initial authorization may be granted for up to 90 days from the day the monitoring is scheduled to begin. Extensions for additional periods of up to 90 days also may be granted. Section V of the Guidelines, which addresses monitorings that do not require DOJ approval, requires that monitoring records include the information set forth in Section III.A, including the length of time needed for the monitoring.

    Our review of consensual monitoring records found that for those monitorings that did not require DOJ approval, the FBI was making blanket authorizations for the duration of its investigations rather than specifying the time needed for the monitoring.330

    Twenty-eight of the overhears we reviewed occurred over 90 days after approval by the SAC or ASAC. One of these occurred in a sensitive monitoring. The last overhear date in this matter was 101 days after the initial approval by the SAC or ASAC and 93 days after the first overhear. Representatives from the field office that conducted this monitoring explained that they had inadvertently missed the 90-day deadline, and, in any event, the operational rule they follow is that consensual monitoring authority for sensitive matters begins with the first monitoring. The overhears in the other 27 monitorings were in non-sensitive matters. The last overhears in these matters, which were approved by a SAC or ASAC, occurred from 98 to 764 days after approval.

  11. OIG Analysis and Recommendations
  12. Our review of the FBI's compliance with the Consensual Monitoring Guidelines found that the FBI was generally in compliance with the Guidelines, although we identified notable deficiencies, particularly with regard to the Guidelines' requirements for authorization. Although the MIOG's implementing provisions for the Guidelines require written authorization for all non-telephonic consensual monitorings that are not conducted in emergency situations, in 10 percent of the recorded overhears we examined, supervisory approval post-dated the first overhear, in most cases by more than 3 weeks. The FBI did not provide any documentation from case agents, technicians, or managers demonstrating that the approval was granted prior to recording overhears in these cases. Thus, it appears that, contrary to FBI requirements, agents were not following proper approval procedures in these cases. Our review of FD-759 Forms and ensuing discussions with FBI personnel, including electronic surveillance technicians, established that the Guidelines' requirements for obtaining necessary approvals were not followed in these instances.

    We also found that in monitorings that do not involve the "sensitive" persons identified in Section II.A of the Consensual Monitoring Guidelines, the FBI is construing the Guidelines to permit a single approval to authorize consensual monitoring for the duration of its investigations. After consulting with the Office of Enforcement Operations in the DOJ Criminal Division, we believe that the FBI's interpretation of the Guidelines may be in error. Section V of the Guidelines requires that monitoring records include the information set forth in Section III.A.6, which provides that the request must "state the length of time needed for the monitoring" and establishes a 90-day authorization period (emphasis added). The MIOG provides, however, that in non-sensitive consensual monitorings, the SAC or ASAC may approve the monitoring "for the duration of the investigation." MIOG Part II, 10-10.3. This has become a routine practice at the FBI and is incorporated in the standardized FD-759 Forms used to secure approvals. We believe that the FBI and DOJ should discuss the proper interpretation of Section V of the Consensual Monitoring Guidelines and that the FBI should issue clarifying guidance.

    In sum, we recommend that the FBI take the following steps.

    (26) Ensure that required authorizations for consensual monitoring are obtained in advance and are appropriately documented.

    (27) For monitorings that do not require DOJ approval, consult with DOJ to resolve whether the Consensual Monitoring Guidelines should be interpreted to authorize monitoring for more than 90 days (including up to "the duration of the investigation" as currently provided on Form FD-759), or whether the authorization is limited to 90 days. The resulting interpretation should be incorporated in the FBI's MIOG and communicated to the field.



Footnotes

  1. We provide a copy of the CM Guidelines in Appendix B.

  2. Title III of the Omnibus Crime Control and Safe Streets Act, 18 USC 2510-2522, enacted in 1968, established the basic law for federal and state law enforcement interceptions performed for the purpose of criminal investigations. A wiretap is commonly referred to as a "Title III."

  3. "Sensitive" individuals are listed in Part II.A of the Guidelines and include members of Congress, federal judges, and the Governor, Lieutenant Governor, or Attorney General of any state. See CM Guidelines II.A at B-90. For certain categories of individuals, DOJ approval is required when the monitoring relates to an investigation in which the sensitive person is a target of the investigation (e.g., a Governor). Section II.A of the Guidelines also identifies persons for whom the monitoring request must be approved by DOJ only when they are a party to the monitored communication (e.g., a member of the diplomatic corps).

  4. Authority to engage in consensual monitoring where written DOJ approval is required may also be given by the Attorney General, the Deputy Attorney General, the Associate Attorney General, the Assistant Attorney General or Acting Assistant Attorney General in charge of the Criminal Division, or a Deputy Assistant Attorney General in the Criminal Division. CM Guidelines III.C at B-93.

  5. MIOG II § 10-10.3(1). Section 10-10.1(4) addresses the maintenance of monitoring records:

    Separate control files - one for telephonic consensual monitoring and another for nontelephonic consensual monitoring (body recorders and/or transmitting devices) should be established in each field office. Documents relative to the authorization and utilization of these techniques should be retained in the appropriate control file. These control files will be for the purpose of the SAC's administrative control and for use during the inspection.

    The MIOG further provides that:

    SAC approval for nonsensitive NTCM [nontelephonic consensual monitoring] usage is to be documented in Form FD-759. . . . [and] is to be typewritten, completed in its entirety and forwarded to the appropriate FBIHQ entities within seven workdays of the date authority is granted as indicated on Item 5 of the form.

    MIOG II § 10-10.3(1).

  6. Memorandum from FBI Office of the General Counsel, Revised Department of Justice Procedures for Lawful Warrantless Monitoring of Verbal Communications, July 5, 2002.

  7. Id. This change was prompted by the so-called "McDade Amendment," which subjects federal attorneys to state laws and rules governing the practice of law. 28 U.S.C. 530B (1999). Because many state ethics rules prohibit attorney contact with represented parties, prosecutors risked violation of these rules when authorizing consensual monitorings.

  8. Memorandum from Attorney General John Ashcroft, Procedures for Lawful, Warrantless Monitoring of Verbal Communications, May 30, 2002, at 2.

  9. The most recent version of Form FD-759 states that the Assistant U.S. Attorney has advised that the monitoring is legal and appropriate, consistend with the May 2002 Guidelines changes. The earlier version of Form FD-759 stated that the Assistant U.S. Attorney concurred in the use of the technique.

  10. We also found that 27 non-sensitive monitorings, or 26 percent of the 103 overhear recordings, occurred over 90 days after approval by the SAC or ASAC and lacked documentation in the file indicating that extensions were requested. However, as we explain below, we believe that the Guidelines are ambiguous with respect to the permissible duration of authorizations for non-sensitive monitorings.

  11. The FBI's Office of the General Counsel (OGC) reports that it continues to receive requests from field offices to help overcome some prosecutors' reluctance to approve FBI requests to consensually record a subject who is represented by counsel. The reluctance is based on the concern that approval may violate the state Bar disciplinary rules that typically prohibit contact with represented parties. Federal prosecutors have been subject to these state rules since 28 U.S.C. 530B, the McDade law, became effective in 1999. This reluctance continues to arise despite extensive legal research by DOJ's Professional Responsibility Advisory Office (PRAO) and FBI OGC which clarifies that pre-indictment covert approaches by a cooperator or undercover agent to a subject does not violate the "represented party" rule according to the prevailing appellate case law.

    FBI OGC typically advises field offices to ask the reluctant prosecutors to discuss with their USAO professional responsibility advisor, their criminal chief, and, if need, be the DOJ PRAO.

  12. Form FD-759 includes a check box under the "Duration of proposed use" that provides: "For the duration of investigation."



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