January 19, 2010 | By Kurt Opsahl

Report Confirms FBI Misuse of Authority to Obtain Phone Records

The Washington Post reported today that the "FBI illegally collected more than 2,000 U.S. telephone call records," using methods that FBI general counsel Valerie Caproni admitted "technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records."

This issue first came to light in a March 2007 report by the DOJ's Office of the Inspector General, which revealed that the FBI's Communications Analysis Unit (CAU) had routinely been using “exigent letters” to obtain customer information from telecommunications companies, including Verizon and AT&T.

“Exigent letters” are informal requests (i.e., not subpoenas, warrants, court orders, or other statutory requests) that ask telecoms to provide “call detail records” about particular subscribers, and, in some letters, illegally asking telecoms to disclose the subscriber's “community of interest" (friends of friends' phone records).

A follow up Office of the Inspector General (OIG) report, released early last year, found hundreds of illegal letters, while today's report uncovered thousands. The 2009 OIG report determined "that by issuing exigent letters the FBI circumvented the NSL statutes and violated the Attorney General’s Guidelines and internal FBI policy." Courts have agreed, concluding that the emergency exception is reserved for voluntary disclosures in response to specific and urgent emergencies. Since the FBI has kept secret whose records were subject to these illegal letters, the victims will be unable to seek redress in court.

In a press release today, the FBI contends that the misuse stopped in 2006, and that it now has "numerous systems to ensure compliance with all the legal requirements associated with their requests for telephone records."

This is a song we've heard before. Former Attorney General Gonzales told Congress in 2005 and 2007 that there were no problems with National Security Letters, when documents would later show that Gonzales was well aware of problems. A high-profile misuse of a National Security Letter went unreported for two years, even though the matter received the personal attention of FBI Director Robert S. Mueller III, as well as officials with the FBI Office of the General Counsel. These misuses came to light as a result of EFF's FOIA Litigation for Accountable Government (FLAG) Project.

Likewise, the exigent circumstances letter problem persisted for years, unreported and unremedied. Reform did not happen when the FBI Office of the General Counsel first learned of the illegal practice in 2004. Only after public disclosure in March 2007 did the FBI begin reform efforts.

Nor did NSL misuse problems stop in 2006, as the FBI might have you believe. An August 2007 FBI legal memorandum asserted an extremely broad view of the NSL statute, which the DOJ later determined (in November 2008) was incorrect.

Openness and transparency is the only solution to keeping the misuse of investigative powers in check. Through our FLAG Project, EFF continues to pursue a Freedom of Information Act case against the government, seeking more records of the misuse of National Security Letter authority. The violations revealed today were not disclosed by the FBI during the course of our pending lawsuit, and we intend to raise that issue with the court.


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