Home News Testimony Emergency Disclosure Provision of the USA Patriot Act
  • Willie T. Hulon
  • Assistant Director, Counterterrorism Division
  • Federal Bureau of Investigation
  • Subcommittee on Crime, Terrorism, and Homeland Security Committee on the Judiciary U.S. House of Representatives
  • Washington, DC
  • May 05, 2005

Good morning Mr. Chairman, Ranking Member Scott and Members of the Subcommittee. It is my pleasure to appear before you today, with Assistant Attorney General William Moschella of the Department of Justice, Office of Legislative Affairs, to discuss how the Federal Bureau of Investigation has used the important provisions of the USA PATRIOT Act to better combat terrorism and other serious criminal conduct.

At the Committee's request, I will specifically focus on the Emergency Disclosure provision of the USA PATRIOT Act, which is scheduled to sunset at the end of this year, and provide you with some examples of how this provision has assisted the FBI's efforts to protect national security. I think you will find this provision has played an instrumental role in helping the FBI fulfill its primary mission of protecting America from further terrorist attacks.

Prior to the passage of the USA PATRIOT Act, federal law contained no special provision authorizing, even in emergency situations, the voluntary disclosure by electronic communication service providers of customer records or communications to federal authorities. If, for example, an Internet service provider ("ISP") voluntarily disclosed information to the government, the ISP could have been sued civilly. The Electronic Communications Privacy Act did not contain statutory exceptions which allowed disclosures, even if a terrorist act could be prevented or lives could be saved.

Section 212 of the USA PATRIOT Act, allows a service provider, such as an ISP, to voluntarily provide the content and records of communications related to a subscriber if it involves an emergency related to death or serious injury. Section 212 has been used often and has saved lives. Many of the emergency disclosures have directly supported FBI terrorism investigations. This provision has also been used to quickly locate kidnaping victims, protect children in child exploitation cases, and respond to bomb and death threats. Because many international service providers are located within the U.S., the FBI Legal Attaches have also utilized this provision to assist foreign law enforcement officials with similar emergencies, such as death threats on prosecutors and other foreign officials. In instances where time is of the essence, giving service providers the authority to voluntarily release information without a court order or grand jury subpoena, facilitates the government's rapid response to crisis situations where the lives of innocent people may be in jeopardy.

I'd like to share with you a few examples which illustrate the important role Section 212 has played in assisting the FBI in its terrorism investigations. The first relates to a threat to destroy a mosque in El Paso, Texas. In the spring of 2004, a threatening e-mail was sent to the El Paso Islamic Center. The e-mail warned that if hostages were not released in Iraq, the mosque would be burned to the ground. FBI Agents utilizing Section 212 were able to quickly obtain information regarding the e-mail from electronic service providers. As a result Jared Bjarnason, of El Paso, was identified, located and arrested before he could carry out his threat. Without the emergency access afforded by Section 212, the outcome of this incident may not have been as successful. As it turned out, Bjarnason pled guilty and was sentenced to 18 months in federal prison.

In another example, many of the details of which are classified, the FBI was attempting to identify and locate suspected terrorists both within the U.S. and abroad. Utilizing the provisions of Section 212, the FBI obtained subscriber information from several Internet Service Providers based upon a national security need. Subsequently, an individual was identified who was determined to be communicating with a known terrorist organization overseas. Similar results have been repeated throughout many of our field divisions.

Section 212 was used in another FBI terrorism investigation involving attacks against U.S. military forces in Iraq. The investigation determined that a particular terrorist organization was likely responsible for the attacks and might be planning further attacks against additional targets. Pursuant to Section 212 of the USA PATRIOT Act, information was obtained from an Internet Service Provider which linked individuals in this terrorist organization. The information provided has been invaluable to the FBI and we believe it will help us locate additional subjects in Iraq.

In a final example, Section 212 was used in an FBI criminal investigation relating to the murder in Kansas of Bobbie Jo Stinnett, who was eight months pregnant. Mrs. Stinnett was found murdered in her home. Her unborn child had been cut from her body with a kitchen knife. An examination of her home computer revealed that she had been communicating on the Internet in connection with her dog-breeding business. A person identifying herself as Darlene Fischer posed as a potential customer. On the same day of the murder, she asked Mrs. Stinnett for directions to her residence. Using Section 212, FBI agents and examiners at the Regional Computer Forensic Laboratory in Kansas City were able obtain information from Internet companies which led to identification and Lisa Montgomery. Montgomery was arrested and subsequently confessed to the murder. The infant daughter of Mrs. Stinnett was recovered less than 24 hours after the murder.

Some critics have suggested that computer service providers should not be able to disclose customer records or communications without a court order or a grand jury subpoena. The elimination of the provisions of Section 212 would severely impact the FBI's ability to respond to certain crisis situations. First, Section 212 allows a service provider to disclose information voluntarily not only when the government seeks it, but also when the service provider itself becomes aware of an emergency that poses a threat to life and limb. To require a court order or subpoena in such a case would require the service provider first to contact authorities and provide a sufficient basis for authorities to seek such an order, then would require authorities to obtain the order and serve it on the provider, and only then would the critical information be made available. Real time implementation of this process would consume precious time in an emergency. Second, even in the more usual case where the government seeks information from a service provider in response to an emergency, obtaining a court order or subpoena could still take a significant amount of time. In some emergency situations, even a matter of minutes might mean the difference between life and death.

In closing, I look forward to discussing with this Committee the ways in which the USA PATRIOT Act has facilitated our ability to conduct terrorism investigations and am happy to answer your questions. Thank you.

 
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