FBI Still Inventing New Ways to Surveil People with No Oversight

Marisa Taylor has an important update on the OLC exigent letter opinion. Last year, DOJ’s now-retired Inspector General Glenn Fine released a report revealing how the FBI had used exigent letters to get call data information from telecoms with no oversight. Ryan Singel noted a reference to an OLC opinion that basically melted away the problems created by use of these exigent letters (see pages 264-266 of the report).

On January 8, 2010, the OLC issued its opinion, concluding that the ECPA “would not forbid electronic communications service providers [three lines redacted]281 In short, the OLC agreed with the FBI that under certain circumstances [~2 words redacted] allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency.

Taylor FOIAed the opinion.

And while DOJ refused to release the opinion, they did apparently reveal enough in their letter explaining their refusal to make it clear that the FBI maintains that it does not need any kind of court review to get telephone records of calls made from the US to other countries.

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

[snip]

The Obama administration’s Justice Department has asserted that the FBI can obtain telephone records of international calls made from the U.S. without any formal legal process or court oversight, according to a document obtained by McClatchy.

EFF’s Kevin Bankston provides some context.

“This is the answer to a mystery that has puzzled us for more than a year now,” said Kevin Bankston, a senior staff attorney and expert on electronic surveillance and national security laws for the nonprofit Electronic Frontier Foundation.

“Now, 30 years later, the FBI has looked at this provision again and decided that it is an enormous loophole that allows them to ask for, and the phone companies to hand over, records related to international or foreign communications,” he said. “Apparently, they’ve decided that this provision means that your international communications are a privacy-free zone and that they can get records of those communications without any legal process.”

Now, I’m trying to get some clarification as to precisely what language DOJ used (see update below). But the revelation is interesting for two reasons.

As I argued last year, the opinion probably serves to clean up a lot of the illegal stuff done under the Bush Administration. I think it likely that this includes Cheney’s illegal wiretap program. If I’m right, then this claim would be particularly interesting not least because of all the discussions about US to international calls during the debate around FISA Amendments Act.

Then of course there’s the even bigger worry. When Fine released his report, the FBI assured him that it wouldn’t actually use this opinion. “No, Dad, I have no intention of taking the Porsche out for a spin, so don’t worry about leaving the keys here.”

But the fact that DOJ seems to be doubling down on this claim sort of suggests they are relying on the opinion.

Also, I can’t help but note about the timing of this FOIA response: Conveniently for DOJ, they didn’t respond to McClatchy until after Russ Feingold and Glenn Fine, the two people most likely to throw a fit about this, were out of the way.

Update: Via email, Kevin Bankston told me this is the clause the government is using to find its loophole: 18 USC 2511(2)(f).

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+0Email to someone

0 Responses to FBI Still Inventing New Ways to Surveil People with No Oversight

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16
  • 17
  • 18
  • 19
  • 20
  • 21
  • 22
  • 23
  • 24
  • 25
  • 26
  • 27
  • 28
  • 29
Emptywheel Twitterverse
bmaz @cristianafarias I honestly see it as a 2-4 hr deal tops. But give some leeway, and day day and half at the most. Anything over that is nuts
6mreplyretweetfavorite
bmaz @neilkli @yeselson Listen, the entire process is controlled by the DA; you seem to think it is about witnesses. It's not.
11mreplyretweetfavorite
bmaz @neilkli @yeselson No, not when attending prosecutors are vouching for Wilson+ripping apart all negative witnesses+refusing to rec charge.
14mreplyretweetfavorite
bmaz @neilkli @yeselson @conradhackett @seanpaulkelley Intentionally trying to confuse GJ and take apart any element that wasn't pro Wilson.
27mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Exactly. That is a two day gig with either a 2nd degree or voluntary mans. indictment returned.
28mreplyretweetfavorite
bmaz @neilkli @yeselson @conradhackett @seanpaulkelley there are NEVER 20 witnesses on GJ case like this. 3-4 max inc. 1 investigator + 1 coroner
30mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley That said, real charge is prob. voluntary manslaughter. It was NOT an accident; was intent to shoot
31mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Anything other than a protected cop and this would have been charged as 2nd degree.
33mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Actually in any other case, prosecutor overcharges to allow for plea negotiation headroom.
33mreplyretweetfavorite
bmaz @yeselson @conradhackett @seanpaulkelley Add a day. Anything over two days on a single gun, single shooter is bizarre.
34mreplyretweetfavorite
bmaz @conradhackett @seanpaulkelley Even any other single gun, single shooter homicide like this would take about 3hrs or less inc. deliberations
38mreplyretweetfavorite
bmaz @conradhackett @seanpaulkelley Ahem. With due respect, the average grand jury presentation lasts less than an hour. #ComeOnMan
47mreplyretweetfavorite
February 2011
S M T W T F S
« Jan   Mar »
 12345
6789101112
13141516171819
20212223242526
2728