FBI Illegally Gathered Phone Records And Misused National Security Letters

Congress Must Curb NSL Abuse Through Patriot Act Revisions

FOR IMMEDIATE RELEASE
CONTACT: (202) 675-2312 or media@dcaclu.org
(212) 519-7829 or 549-2666 or media@aclu.org

WASHINGTON – According to a report in the Washington Post today, the FBI routinely claimed false terrorism emergencies to illegally collect the phone records of Americans for four years of the Bush administration by abusing an already expansive Patriot Act power. Using “exigent letters,” or emergency letters, to gain private records for investigations when no emergency existed, the FBI seemingly violated the Electronic Communications Privacy Act. The FBI also routinely issued National Security Letters (NSLs) after the fact in an attempt to legitimize the use of exigent letters.

The NSL statute, widely broadened with the passage of the Patriot Act in 2001, allows the FBI to secretly demand personal records about innocent customers from Internet Service Providers (ISPs), communications service providers, financial institutions and credit reporting agencies without suspicion or prior judicial approval. The statute also allows the FBI to bar NSL recipients from disclosing anything about the record demand. Congress recently extended three unrelated provisions of the Patriot Act set to expire last year until February 28, 2010. There are several bills in both the House and Senate that address those provisions as well as the NSL statute.

In 2004, the ACLU and New York Civil Liberties Union filed a lawsuit on behalf of an ISP that the FBI served with an NSL. Because the FBI imposed a gag order on the ISP, the lawsuit was filed under seal. Although the U.S. Court of Appeals for the Second Circuit ruled in 2008 that the gag order provisions were unconstitutional, the “John Doe” NSL recipient in that case remains gagged.

The following can be attributed to Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office:

“The FBI was given broad authority to issue NSLs in the Patriot Act, and to flout even the minor privacy protections within that statute shows a blatant disregard for the civil liberties of Americans. The FBI has a notorious reputation for being unable to police itself and, in this instance, its internal oversight controls clearly failed. Even after being warned by their own lawyers, FBI supervisors continued sending exigent letters even though no emergency existed and they had no statutory authority for such letters.

“The agency has shown time and again its contempt for internal guidelines and restrictions, even when someone is looking over its shoulder. Worse still is the evidence that higher-ups at the agency attempted to cover up their wrongdoing. It is not enough to for the FBI to claim these practices have ended; its ability to file exigent letters must be narrowed and subject to increased oversight. With the reauthorization of Patriot Act authorities now pending, Congress has an opportunity to narrow the use of NSL powers and help avoid such abuses in the future. Given what we now know, it would be unthinkable not to make such changes in the law now while it’s possible.”

The following can be attributed to Melissa Goodman, staff attorney with the ACLU National Security Project:

"The FBI showed flagrant duplicity in obtaining thousands of phone records over several years without any legal basis or justification for doing so. The FBI must be forthcoming and release information about its use of exigent letters and NSLs in order to hold accountable those who contributed to what clearly amounts to a systemic abuse of power. The FBI should also lift unnecessary and unjustified gag orders that continue to silence thousands of NSL recipients from speaking out about the FBI’s misuse of this intrusive record demand power, including our John Doe client who has now been gagged for nearly six years."

To learn more about the Patriot Act and the ACLU’s work to reform it, go to: www.reformthepatriotact.org