Over the past several months,
the Obama Administration has defended the government’s far-reaching data
collection efforts, arguing that only criminals and terrorists need worry. The
nation’s leading internet and telecommunications companies
have said they are committed to the sanctity of their customers’ privacy.

I have some very personal
reasons to doubt those assurances.

In 2004, my
telephone records as well as those of another New York Times reporter and two
reporters from the Washington Post, were obtained by federal agents assigned to
investigate a leak of classified information. What happened next says a
lot about what happens when the government’s privacy
protections collide with the day-to-day realities of global surveillance.

The story begins in 2003 when
I wrote an article about the killing of two American teachers in West Papua, a remote region of Indonesia where
Freeport-McMoRan operates one of the world’s largest copper and gold mines. The
Indonesian government and Freeport blamed the killings on a separatist group,
the Free Papua Movement, which had been fighting a low-level guerrilla war for several
decades.

I opened my article with this
sentence: “Bush Administration officials have determined that Indonesian
soldiers carried out a deadly ambush that killed two American teachers.”

 I also reported that two FBI agents had
travelled to Indonesia to assist in the inquiry and quoted a “senior
administration official” as saying there “was no question there was a military
involvement.’’

The story prompted a leak
investigation. The FBI sought to obtain my  phone records and those of  Jane Perlez,
the Times bureau chief in Indonesia and my wife. They also went after the
records of the Washington Post reporters in Indonesia who had published the
first reports about the Indonesian government’s involvement in the killings.

As part of its investigation,
the FBI asked for help from what is described in a subsequent government report as an “on-site communications service” provider. The report, by the Department
of Justice’s Inspector General, offers only the vaguest description of this key
player, calling it “Company A.’’

“We do not identify the
specific companies because the identities of the specific providers who were
under contract with the FBI for specific services are classified,’’ the report
explained.

Whoever they were, Company A
had some impressive powers. Through some means – the report is silent on
how – Company A obtained  records of calls made on Indonesian
cell phones and landlines by the Times and Post reporters. The records showed
whom we called, when and for how long — what has now become famous as “metadata.”

Under DOJ rules, the FBI investigators
were required to ask the Attorney General to approve a grand jury subpoena before
requesting records of reporters’ calls. But that’s not what happened.

Instead, the bureau sent
Company A what is known as an “exigent letter’’
asking for the metadata.

A heavily redacted version of the DOJ
report, released in
2010, noted that exigent letters are supposed to be used in extreme circumstances
where there is no time to ask a judge to issue a subpoena. The report found nothing
“exigent’’ in an investigation of several three-year-old newspaper stories.

The need for an exigent letter suggests two things
about Company A. First, that it was an American firm subject to American laws.
Second, that it had come to possess my records through lawful means and needed
legal justification to turn them over to the government.

The report disclosed that the agents’ use of the exigent
letter was choreographed by the company and the bureau. It said the FBI
agent drafting the letter received “guidance” from “a Company A analyst.’’  According to the report, lawyers for
Company A and the bureau worked together to develop the approach.

Not surprisingly, “Company A” quickly responded to the
letter it helped write. In fact, it was particularly generous, supplying the
FBI with records covering a 22-month period, even though the bureau’s
investigationwas limited to a seven-month
period.Altogether, “Company A” gave
the FBI metadata on 1,627 calls by me and the other  reporters.

Only three calls were within the seven-month
window of phone conversations investigators had decided to review.

It doesn’t end there.

The DOJ report asserts
that “the FBI made no investigative use of the reporters’ telephone
records.” But I don’t believe that is accurate.

In 2007, I heard rumblings  that the leak investigation was
focusing on a diplomat named Steve Mull, who was the deputy chief of mission in
Indonesia at the time of the killings. I had known Mull when he was a political
officer in Poland and I was posted there in the early 1990s. He is a person of great
integrity and a dedicated public servant.

The
DOJ asked to interview me. Of course, I would not agree to help law enforcement
officials identify my anonymous sources. But I was troubled because I felt an honorable
public servant had been forced to spend money on lawyers to fend off a charge
that was untrue. After considerable internal debate, I decided to talk to the
DOJ for the limited purpose of clearing Mull.

It
was not a decision I could make unilaterally. The Times also had a stake in
this. If I allowed myself to be interviewed, how could the Times say no the
next time the government wanted to question a Times reporter about a leak?

The
Times lawyer handling this was George Freeman, a journalist’s lawyer, a man Times reporters liked having in their corner. George
and the DOJ lawyers began to negotiate over my interview. Eventually, we agreed
that I would speak on two conditions: one, that they could not ask me for the
name of my source; and two, if they asked me if it was ‘X,’ and I said no, they
could not then start going through other names.

Freeman
and I sat across a table from two DOJ lawyers. I’m a lawyer, and prided myself
on being able to answer their questions with ease, never having to turn to Freeman
for advice.

Until
that is, one of the lawyers took a sheaf of papers that were just off to his
right, and began asking me about phone calls I made to Mull. One call was for
19 minutes, the DOJ lawyer said, giving me the date and time. I asked for a
break to consult with Freeman.

We
came back, and answered questions about the phone calls. I said that I couldn’t
remember what these calls were about – it had been more than four years
earlier – but that Mull had not given me any information about the
killings. Per our agreement, the DOJ lawyers did not ask further questions
about my sources, and the interview ended.

I didn’t know how the DOJ had gotten my phone records,
but assumed the Indonesian government had provided them. Then, about a year
later, I received a letter from the FBI’s general counsel, Valerie Caproni who wrote that my phone records had been taken from
“certain databases” under the authority of an “exigent letter,’’ (a term I had
never heard).

Caproni sent similar letters to Perlez, to the Washington Post reporters, and to the
executive editors of the Post and the Times, Leonard Downie
and Bill Keller, respectively. In addition, FBI Director Robert Mueller called Downie and Keller, according to the report.

Caproni wrote that the records had not been
seen by anyone other than the agent requesting them and that
they had been expunged from all databases.

I’m
uneasy because the DOJ report makes clear that the FBI is still concealing some
aspect of this incident. After describing Caproni’s
letters, the report says: “However, the FBI did not disclose to the reporters
or their editors that [BLACKED OUT).” 
The thick black lines obliterate what appear to be several sentences.


If you were to ask senior
intelligence officials whether I should wonder about those deletions, they’d
probably say no.

I’m not so sure.

The government learned extensive
details about my personal and professional life. Most of those calls were about
other stories I was writing. Some were undoubtedly to arrange my golf game with
the Australian ambassador. Is he now under suspicion? The report says the data
has been destroyed and that only two analysts ever looked at it.

But who is this ‘Company A” that willing
cooperated with the government?  Why
was it working hand in glove with the FBI? And what did the FBI director not
tell the editors of the Times and the Washington Post when he called them
acknowledging the government had improperly obtained reporter’s records?

Raymond Bonner, a lawyer and former New York Times reporter,
is the author of “Anatomy of Injustice: A
Murder Case Gone Wrong.”