ACLU Refutes FBI’s Claims of “Unintentional” Patriot Act Abuses

WASHINGTON – Claims that the FBI’s reported Patriot Act abuses were the “unintentional” result of outmoded computer systems and human error are not credible, the American Civil Liberties Union said today, citing evidence that agents contracted with phone companies to obtain customer records and later sought to cover up the illegal requests.

The report also shows that the FBI is issuing hundreds of thousands more National Security Letters than ever imagined, and that tracking of the NSLs is sloppy, resulting in thousands of innocent Americans being entered into databases that are shared with numerous U.S. agencies and foreign governments.

“It seems that every time the American people entrust the Bush administration with some new power, it not only abuses that power but also seizes additional powers without our knowledge,” said ACLU Executive Director Anthony D. Romero. “It is long past time for Congress to take back the civil liberties of the American people and right these wrongs. The Attorney General and the FBI are part of the problem and cannot be trusted to be the only solution.”

The ACLU’s criticisms came in response to a report issued today by the Justice Department’s own Inspector General about abuses of Patriot Act powers used to obtain sensitive personal information such as telephone records and e-mail. The report revealed that FBI agents have issued “at least 739” so-called “exigent letters” that illegally circumvent even the scant requirements of the Patriot Act’s controversial National Security Letter (NSL) provision. In some cases, NSLs were issued “after the fact” to “cover” the illegitimate record demands, the report said.

According to the Inspector General’s report, FBI agents contracted with phone companies to improperly obtain customer records, saying that subpoenas would later be issued in connection with an underlying investigation. But in a random examination of such “exigent letters,” not one subpoena was sent, and in many cases the requests were not tied to any pending FBI investigations, in clear violation of the law.

“It simply is not credible for the FBI to claim that these unauthorized and illegal fishing expeditions were the result of human error or outmoded computer systems,” Romero said.

Romero also expressed doubt about FBI Director Mueller’s claim that no one was harmed by these massive privacy breaches, saying that customers should be alerted that their telephone and e-mail records may now be in U.S. and even foreign government databases. “We call on the FBI to immediately disclose the identity of the telecommunications companies that were involved and to notify the customers whose records were obtained about this unauthorized invasion of their privacy rights.”

Today’s report contained numerous other revelations of abuses of the National Security Letter power and other Patriot Act powers, including:

* The FBI issued NSLs even where no underlying investigation had been approved; obtained more information from recipients than was requested; and obtained information about telephone numbers that did not belong to the target of the NSLs.
* The violations of privacy that resulted from the FBI’s abuse of its NSL power go way beyond phone and email records and in some instances included medical records and educational records.
* In one case, the FBI issued an NSL to a North Carolina university that sought several categories of records, including applications for admission, housing information, emergency contacts, and campus health records.
* The FBI has no uniform system for tracking responses to National Security Letters, either manually or electronically, and is sharing information derived from NSL with numerous U.S. intelligence agencies and even foreign governments
* The number of NSL requests reported to Congress in 2003, 2004, and 2005, were “significantly understated.” After the Patriot Act, the number of NSL requests increased from 8,500 in 2000 to approximately 39,000 in 2003, approximately 56,000 in 2004, and approximately 47,000 in 2005 – but even these numbers are incomplete because the FBI “did not consistently enter” its data.
* Some NSL recipients erroneously provided prohibited content to the FBI, including voice messages, e-mails, and images.

The ACLU also noted that the Inspector General’s report looked at only a tiny sample of the hundreds of thousands of NSLs. That so many violations and abuses were uncovered in such a small sample points to major systemic problems with the FBI’s use of NSLs, the ACLU said.

As a result of today’s revelations, the ACLU has renewed its call to Congress to repeal the NSL provision of the Patriot Act and to exercise its oversight powers.

"Congress must fix the fundamental flaws with the Patriot Act," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "The FBI abused the powers it was given in the Patriot Act to pry in to the private lives of more Americans than ever before in our history.”

The ACLU has successfully challenged the procedures for issuing NSLs in two separate lawsuits. The lawsuits challenge the National Security Letter provision of the Patriot Act, which authorizes the FBI to demand a range of personal records without court approval, such as the identity of a person who has visited a particular Web site on a library computer, or who has engaged in anonymous speech on the Internet. Under the expanded Patriot Act power, anyone who receives an NSL is forbidden, or "gagged" from telling anyone about the record demand.

In response to the court rulings, Congress made some minor changes to the law when it reauthorized the Patriot Act in 2006. As today’s report demonstrates, the ACLU said, those changes are not enough.

In a September 2004 ruling striking down the draconian gag provision of the NSL power, Federal District Court Judge Victor Marrero said: “As our sunshine laws and judicial doctrine attest, democracy abhors undue secrecy. An unlimited government warrant to conceal, effectively a form of secrecy per se, has no place in our open society. Such a claim is especially inimical to democratic values for reasons borne out by painful experience."

Next month Judge Marrero will hear arguments in the ACLU’s challenge to the gag and secrecy provisions of the NSL law as amended by Congress in 2006.

More information about the ACLU’s challenges to the NSL power is online at http://www.aclu.org/nsl

ACLU analysis of the OIG report is online at: http://www.aclu.org/safefree/nationalsecurityletters/28969lgl20070309.html and the report itself is online at: http://www.usdoj.gov/oig/special/s0703b/final.pdf

An audio file of an ACLU news conference about the report is online at: http://www.aclu.org/multimedia/030907_call_on_DOJ-OIG_report.mp3

http://aclu.org/safefree/nationalsecurityletters/28968prs20070309.html