WASHINGTON - January 19 - 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.