Secret Spy Court Repeatedly Questions FBI Wiretap Network (Ryan Singel)

Does the FBI track cellphone users' physical movements without a warrant? Does the Bureau store recordings of innocent Americans caught up in wiretaps in a searchable database?  Does the FBI's wiretap equipment store information like voicemail passwords and bank account numbers without legal authorization to do so?

That's what the nation's Foreign Intelligence Surveillance Court wanted to know, in a series of secret inquiries in 2005 and 2006 into the bureau's counterterrorism electronic surveillance efforts, revealed for the first time in newly declassified documents.

{xtypo_quote_left} The FBI's configuration of DCS 3000 to collect post-cut-through dialed digits when conducting pen-register surveillance is flatly illegal under statute and raises serious Fourth Amendment questions, based on the unanimous decisions of two district court judges and three federal magistrate judges holding that such interceptions require a wiretap order based on probable cause," Bankston said. {/xtypo_quote_left} 

The inquires are the first publicly known questioning of the FBI's post-9/11 surveillance activities by the secret court, which has historically approved nearly every wiretap application submitted to it.  The court handles surveillance requests in counterterrorism and foreign espionage investigations. The inquiries add to questions surrounding how the FBI has used the broad powers handed to it by Congress in the 2001 USA Patriot Act, including the FBI's admitted abuse of so-called National Security Letters to get stored telephone and financial records.

Among other things, the declassified documents reveal that lawyers in the FBI's Office of General Counsel and the Justice Department's Office of Intelligence Policy Review queried FBI technology officials in late July 2006 about cellphone tracking. The attorneys asked whether the FBI was obtaining and storing real-time cellphone-location data from carriers under a "pen register" court order that's normally limited to records of who a person called or was called by.

The internal inquiry seems to have preceded, and was likely prompted by, a secret court hearing on the matter days later. Kevin Bankston, a lawyer with Electronic Frontier Foundation, says the documents suggest that the nation's spy court shares the reluctance of federal criminal courts to turn everyday cellphones into tracking devices, in the absence of evidence that the target has done something wrong.

"I hope that this signals that the FISC, like many magistrate judges that handle law enforcement surveillance requests, is growing skeptical of the government's authority to conduct real-time cellphone tracking without probable cause," says Bankston.

Read More: Wired Magazine's "Threat Level" Blog