For Immediate Release
Mandy Simon, (202) 675-2312; media@dcaclu.org
Robyn Shepherd, (212) 519-7829 or 549-2666; media@aclu.org
FBI Illegally Gathered Phone Records And Misused National Security Letters
Congress Must Curb NSL Abuse Through Patriot Act Revisions
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.
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.
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.”
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."
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