Statement
of
Willie T. Hulon
Assistant Director, Counterterrorism Division
Federal Bureau of Investigation
Before the
Subcommittee on Crime, Terrorism, and Homeland
Security
Committee on the Judiciary
U.S. House of Representatives
May 5, 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.
