By Ryan Singel January 19, 2010
An internal audit found the FBI broke the law thousands of times when requesting Americans’ phone records using fake emergency letters that were never followed up on with true subpoenas — even though top officials knew the practice was illegal, according to The Washington Post.
The inspector general’s follow-up report on the so-called “exigent” letters — an investigation that started in 2007 — is due in a few months. E-mails obtained by the Post showed that responsible agency officials informed superiors in 2005, but the practice continued for two more years.
While it looks as if the nation’s top law enforcement agency routinely violated the nation’s wiretapping laws for years, it seems no one will actually be prosecuted since the violations are being judged as merely “technical.”
Agents in the Federal Bureau of Investigation’s terrorism investigation unit in New York City began using so-called “exigent letters” shortly after 9/11 as a shortcut around a proper terrorism subpoena, known as a National Security Letter. A proper NSL authorized under the Patriot Act allows agents to secretly get an individuals’ phone and financial records with a self-issued subpoena so long as they are “relevant” to an official, ongoing investigation.
That was supposed to prevent FBI agents from getting someone’s phone number just for exercising their First Amendment rights. But the standard was low enough that agents began issuing tens of thousands of NSLs a year, with not one being checked by a judge.
But even those rules were too stringent, and the New York-style “exigent letter” — an understandable shortcut after the 9/11 attacks — graduated from being temporary and was adopted by employees in Washington, D.C.
The news comes as Congress contemplates tightening the safeguards around NSLs following what has become an ever-growing list of abuses of FBI powers.
Even though supervisors and legal counsel became of aware of the fake emergency letters in 2004, the illegal behavior continued. But the phone companies began pushing back against the requests because they were being left with the legal liability. The public became aware of the NSL abuse in 2007, when the Justice Department’s inspector general released a report on the use of the power.
