Gregory T. Nojeim, Senior Counsel and Director of the Project on Freedom, Security & Technology at the Center for Democracy & Technology
The Washington Post reported yesterday that the FBI abused its authority to issue National Security Letters (NSLs) and that this abuse permitted it to illegally obtain more than 2,000 telephone call records from 2002-2006. This disclosure, made while Congress contemplates Patriot Act legislation that could rein in use of NSLs, should prompt a re-examination of the approaches taken in the pending bills.
A national security letter is a simple form document issued by the FBI and other agencies of the government to obtain telephone call records, email to/from information, and other records about communications, as well as financial, credit, and other records, without any prior judicial authorization. NSLs are served on the business entities that hold the records and the businesses that receive NSLs must comply or challenge them in court, and with limited exceptions, are barred from disclosing to anyone that they have received or complied with the demand for records.
The Patriot Act removed most of the legal restraints on issuing NSLs, including the requirement that the NSL seek information that pertains to a spy, a terrorist or another agent of a foreign power, and the requirement that agents articulate a factual basis for seeking records with an NSL. But it left in place the very minimal requirement that the NSL be issued only to seek information relevant to an investigation to protect against international terrorism or clandestine intelligence activities. Rather than comply with this minimal requirement, FBI officials issued "exigent letters" to obtain information that should have been sought with NSLs even when no investigation had been opened, and in some cases, even though the information was not sought in an emergency situation. "Exigent letters" were a creation of the FBI and have no basis in law.
After this and other abuses were disclosed in a DOJ Inspector General report issued in March 2007, the FBI put in place administrative changes it said were designed to prevent a recurrence. Those changes included internal review by lead attorneys in FBI field offices of NSL requests. However, The Washington Post article reveals that officials who sanctioned the illegal exigent records included senior officials of the FBI - managers as high as Assistant Director of the FBI. It is not likely that an attorney in an FBI field office will be able to stop illegal activity sanctioned by his boss's boss. That the abuses went this high up the chain of command at the FBI had not been previously revealed.