FBI Improperly Obtains Reporters' Phone Records

August 9, 2008 12:00 am

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ACLU Says Breach Confirms Inadequate Safeguards On Surveillance Tool

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NEW YORK – The FBI admitted late yesterday to improperly obtaining telephone records from New York Times and Washington Post reporters by issuing “emergency” records demands that allowed the agency to bypass even the extremely limited safeguards that ordinarily apply to national security letters (NSLs). The American Civil Liberties Union has successfully challenged the national security letter statute in federal court and says this breach confirms the inadequacy of safeguards on the FBI’s intrusive surveillance powers.

The following can be attributed to Jameel Jaffer, Director of the ACLU National Security Project:

“The FBI’s disclosure that its agents secretly sought and obtained the phone records of American newspaper reporters confirms once again that there are insufficient safeguards on the agency’s use of national security letters and other intrusive surveillance tools. There aren’t enough controls inside the agency, and there aren’t enough checks from outside the agency. Especially dangerous is the FBI’s power to impose gag orders on those ordered to disclose information. These gag orders, which are often unnecessary and almost always overbroad, invite abuse.”

NSLs are secretly issued by the government to obtain access to personal customer records from Internet Service Providers, financial institutions and credit reporting agencies without prior court approval. In almost all cases, recipients of the NSLs are forbidden, or “gagged,” from disclosing that they have received the letters. The ACLU has challenged this Patriot Act statute in federal court in two cases where the judges found the gags unconstitutional: one involving an Internet Service Provider (ISP); the second, a group of librarians. In the ISP case, the district court invalidated the entire NSL statute. The U.S. Court of Appeals for the Second Circuit is scheduled to hear oral arguments in the government’s appeal of that case on August 27.

A third case, called Internet Archive v. Mukasey, involved an NSL served on a digital library. In April 2008, the FBI withdrew the NSL and the gag a part of the settlement of a legal challenge brought by the ACLU and the Electronic Frontier Foundation.

Since the Patriot Act was passed in 2001, relaxing restrictions on the FBI’s use of the power, the number of NSLs issued has seen an astronomical increase, to nearly 200,000 between 2003 and 2006.

More information on NSLs is available at: www.aclu.org/nsl

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