When we filed our FOIA request, in August 2002, we also filed a letter asking the Justice Department to expedite its response. We cited a part of the FOIA that states that expedited processing is warranted when a request pertains to a "matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence." The government conceded almost immediately that we were entitled to expedited processing.

		The ACLU filed this Complaint after the Attorney General refused expeditiously to process the PATRIOT FOIA request. ACLU's Motion for Preliminary Injunction Justice Department's Opposition to ACLU Motion for Preliminary Injunction

Unfortunately, the government did not provide the expeditious processing that it had promised. Instead, the Justice Department dragged its feet for over two months. Ultimately, we decided to file a lawsuit asking a federal court to force the government to respond to our request.

At a hearing before Judge Ellen Segal Huvelle in November, the government finally agreed to respond to our request by a specific date. Under the order issued by Judge Huvelle on November 26, the government was to complete its response to our request by January 15.

While the government did not meet the deadline imposed by Judge Huvelle, it has now released a significant number of records in response to our FOIA request. In total, the government has released 341 pages of responsive records. (Many of the pages include portions that are blacked out, ostensibly for national security reasons.) The government has also withheld an additional 53 pages in their entirety.

What We Have Learned

1. The FBI is aggressively using National Security Letters - with no judicial oversight - to obtain sensitive records from banks, credit reporting agencies, and Internet service providers.

		New surveillance powers can be used not only against suspected terrorists but even against ordinary, law-abiding, American citizens.

A Nov. 2001 FBI memo explains the way in which the PATRIOT Act expanded the FBI's power to use National Security Letters. National Security Letters can be used to force banks, Internet service providers, telephone companies, and credit agencies to turn over the records of their customers. There is no judicial oversight at all; the FBI need not obtain a court order or warrant. Further, entities that are forced to turn over records are prohibited from disclosing to their customers - or to anyone else - that the FBI has demanded the records.

		Blacked-out lists suggest that the Attorney General is aggressively using surveillance powers that don't require judicial oversight.

One interesting passage in the memo emphasized that, after the PATRIOT Act, the FBI is authorized to use National Security Letters not only against suspected terrorists and spies but also against Americans who are suspected neither of crime nor of working for a hostile government or terrorist organization.

The government has refused to say how extensively it is using its authority to issue National Security Letters. However, the government has disclosed blacked-out lists whose length clearly suggests that the government is using this power very aggressively. Of course, the length of the list cannot tell us anything about how pervasively these tools are being used against American citizens and permanent residents, or whether they are being used to investigate people on the basis of their legitimate political activity, or how extensively they are being used to investigate people suspected neither of crime nor of working for a hostile government or terrorist organization.

2. The FBI is conducting wiretaps and secret searches in criminal investigations without complying with probable cause

		Memo explains that FISA does not meet ordinary constitutional requirements. Related documents released in response to our FOIA request: April 2002 OIPR memo explaining FISA application process. (The memo is probably out-of-date because of the Sept. 2002 decision of the FISA Court of Review.) June 2002 FBI memo summarizing Patriot Act provisions of "most immediate interest to FBI investigations."

A March 2002 memo from Attorney General John Ashcroft's office confirms that the FBI is relying on the Foreign Intelligence Surveillance Act (FISA) to conduct wiretaps and secret searches in criminal investigations without complying with probable cause. Over the past 25 years, numerous courts have held that the Fourth Amendment prohibits the government from using FISA this way; these courts have insisted that the FBI can use FISA only to gather foreign-intelligence, not for law enforcement. The Attorney General's radical theory is now the subject of litigation in an extraordinary case titled In re Sealed Case of the Foreign Intelligence Court of Review, No. 02-001. The ACLU has been very involved in that case and is now asking the Supreme Court to consider it.

A Sept. 2002 document called "What do I have to do to get a FISA?" explains the procedures that an FBI agent must follow in order to obtain a surveillance order from the Foreign Intelligence Surveillance Court. Part of the memo, captioned "Verification Procedures," is blacked out. One reason the memo is interesting is that it frankly acknowledges that the "probable cause" standard used in FISA is much less stringent than the "probable cause" standard that the Fourth Amendment normally requires. The Attorney General has argued recently that the standards are more-or-less the same.

3. The government has begun to use an extraordinarily broad surveillance provision that could be used to force libraries and bookstores to report on their patrons and customers' reading habits

Section 215 of the PATRIOT Act gives the FBI unprecedented power to order any entity at all to turn over its records. The records need not pertain to a terrorism suspect, or even to a person suspected of criminal activity. Further, an entity ordered to turn over its records to the FBI is prohibited from disclosing to anyone else that the FBI has asked for the information. Over the past months, there has been growing concern about the possibility that the FBI could use this power to obtain information about the books we read or even the websites we visit.

		Are new surveillance powers being used to keep track of the books Americans are reading?

The government has refused to say how extensively it is using its authority under Section 215. In response to our request, it provided only a blacked-out list.

For a number or reasons, we now believe that the Attorney General may be using a variety of other tools to obtain citizens' personal records - including from libraries, bookstores, and Internet service providers.

First, the Attorney General recently informed the House Judiciary Committee that the FBI might obtain library and bookstore records using National Security Letters, rather than Section 215. As our FOIA request has discovered (see above), the government is using its authority to issue National Security Letters very aggressively.

Second, the ACLU has learned that the FBI has pressured at least some libraries to "voluntarily" turn over records relating to their patrons. (And if the FBI is pressuring libraries to turn over their records, it is quite likely that the FBI is employing the same practice with respect to bookstores and internet service providers, among others.) This practice is particularly troubling because there is no judicial oversight at all. While librarians can theoretically decline to turn over their records in response to informal FBI requests, some librarians, like most Americans, may be intimidated by the FBI.

		Attorney General not particularly forthcoming about monitoring phone calls and e-mails.

4. The FBI is aggressively using its power to install pen registers and trap and trace devices

A March 2002 FBI memo explains the way in which the PATRIOT Act expanded the FBI's authority to use "pen register" and "trap and trace" devices. (These devices let the FBI track the calls to and from a particular phone, or the e-mails to and from a particular computer.) Since the Patriot Act, the FBI has been able to employ these devices even against American citizens and permanent residents who are suspected neither of crime nor of working for a hostile government or terrorist organization.

The government has refused to say how extensively it is using its pen register and trap and trace authority. However, a blacked-out list suggests that the government has been using the power aggressively.

5. The government plans to use all of its new surveillance powers aggressively, including by turning the powers against ordinary Americans and permanent residents

		Blacked-out e-mails apparently discuss Attorney General's response to House Judiciary Committee oversight.

An Oct. 2001 FBI memo explains the way in which the PATRIOT Act expanded the FBI's surveillance powers under FISA. One interesting thing about the memo is the great emphasis it places on the fact that the FBI is authorized to use many of its new surveillance powers not only against suspected terrorists and spies but also against Americans who are suspected neither of crime nor of working for a hostile government or terrorist organization.

What the Government Won't Tell Us

The Attorney General has refused to disclose basic statistical information about the FBI's use of new surveillance powers. We asked in particular for the statistical information that the Attorney General reluctantly provided in response to the House Judiciary Committee's June 2002 oversight letter. Most of the records released to us in response are internal e-mails discussing the DOJ's response to the letter. The important content of the e-mails has been blacked out, and as a result most of the e-mails are meaningless.