Legal News

The government's anti-terrorism investigations have been run, on occasion, by post-it note. That was just one of many inappropriate, possibly illegible and probably illegal methods the FBI reportedly has been using to obtain phone records from 2003 to 2006, according to a report released today. The Department of Justice Inspector General's report details the practices the FBI used to obtain phone records in the time period after the passage of the Patriot Act loosened the once strict requirements for gathering such information.

The report, "examines in detail the flawed practices that the FBI used to obtain thousands of telephone records, and the accountability of FBI employees for these troubling practices," Inspector General Glenn Fine said. One method under scrutiny is the widespread use of the "exigent circumstances letters" which were used to obtain evidence such as phone records without extended legal process in times of emergency. The report found the FBI issued over 700 letters from 2003 to 2006, many with no emergency actually in existence. The FBI is required by law to follow an exigent circumstance letter with a National Security Letter, a small, technical requirement it now appears was rarely followed.

The report further detailed the "informal" requests for least 3,500 telephone numbers made use of by agents including requests by email, in person, by practically leaning over the shoulder of a phone company employee and yes, by post-it note. The report quotes one senior FBI official saying the free for all methods were, "like having the ATM in your living room." Americans attached to the 4th Amendment can take small comfort in the statement by the FBI that it never obtained the content of any telephone conversations, only the telephone billing records.

The Bureau was further reported to have obtained phone records for reporters at the New York Times and the Washington Post without first obtaining approval from the Attorney General as required by federal regulation and department policy.

The report concludes that the Bureau's practices (not to mention record keeping methods) are "troubling," and represented a failure to comply with the Electronic Communications Privacy Act. In response, FBI director Robert Mueller told the Senate Judiciary Committee during an appearance Wednesday, that the FBI takes the concerns raised in the Inspector General's report "exceptionally seriously."

Related Resources:

• Report: FBI improperly got phone records from 2003 to 2006 (Reuters)
• Review: FBI skirted law to get phone records (MSNBC)
• Has the law regarding telephone taps and other surveillance changed since the terrorist attacks of September 11, 2001? (Findlaw)
• Do the police have the right to tap my telephone? (Findlaw)
• Does the average member of the public have any privacy rights? (provided by The Umansky Law Firm)