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A Review of FBI Security Programs

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The security consequences <strong>of</strong> this policy are difficult to assess. Obviously, many<br />

cases previously restricted by default or designation are now open to the full universe <strong>of</strong> ACS<br />

users. Substantial sensitive source material is now unrestricted. For example, while<br />

informant and asset files remain restricted, it is likely that at least some <strong>of</strong> the other case files<br />

to which source information is attached are now unrestricted.<br />

While this new policy retained restrictions on tax and most grand jury information,<br />

other confidential information was not afforded continued protection. For instance,<br />

information collected pursuant to the Foreign Intelligence Surveillance Act (FISA)<br />

historically has been housed in restricted cases. There are complicated procedures – many<br />

driven by executive policy, but some predicated on case and constitutional law – governing<br />

the use <strong>of</strong> FISA information in criminal cases. Accordingly, problems may arise in making<br />

FISA information generally accessible throughout a system employed by agents conducting<br />

criminal investigations. 15 And a point more central to our mandate is again true: highly<br />

classified information has been made available to a range <strong>of</strong> Bureau personnel far broader<br />

than those who need to know it.<br />

Having implemented this decision, there is little the <strong>FBI</strong> can do to reverse it. For<br />

example, ACS does not have a separate case classification for investigations employing FISA<br />

information. Consequently, while a terrorism case (now unrestricted) might include FISA<br />

information, not all terrorism cases will. Therefore, it will be very difficult to identify all<br />

cases that include FISA information, particularly now that the information is generally<br />

available and may have been picked out for use in other (perhaps even criminal) cases.<br />

Even if the Bureau were to reinstate restrictions on certain existing cases, the case<br />

files have been generally available on ACS for some time; returning these cases to their<br />

previous security status has been likened to putting toothpaste back into a tube. Even if<br />

15<br />

On October 12, 2001, the <strong>FBI</strong>’s General Counsel ordered by Electronic<br />

Communication that FISA information newly uploaded onto ACS carry a warning about its<br />

source and declaring that the information cannot be used in criminal cases without approval from<br />

Headquarters and the Department <strong>of</strong> Justice.<br />

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