What a week to be a major corporation, huh? But few made out like AT&T, which not only gained personhood from the SCOTUS, it was absolved of all legal responsibility in a particularly egregious case of warrantless spying on Americans, courtesy the Obama administration OLC.
The Justice Department's IG internal audit released this week "harshly criticized how the Federal Bureau of Investigation’s Communications Analysis Unit — a counterterrorism section founded after 9/11 — relied on so-called 'exigent' letters to get carriers to turn over phone records immediately." Those letters were used by the FBI in "emergency" cases, promises to the telcos that subpoenas were in the works to make the requests for records legal.
"The FBI’s use of exigent letters and other informal requests for telephone toll billing records circumvented, and in many cases violated, the requirements of the Electronic Communications Protection Act statute," according to the report, which was referencing a leading federal wiretap law.
"We found that a distinct lack of oversight and scrutiny by CAU managers, counterterrorism officials and FBI Office of General Counsel attorneys enabled the improper practice of obtaining ECPA-protected telephone records with the promise of future legal process to expand and proceed virtually unchecked for over 4 years," the report found.
But in a surprise buried at the end of the 289-page report, the inspector general also reveals that the Obama administration issued a secret rule almost two weeks ago saying it was legal for the FBI to have skirted federal privacy protections.
Given the egregious abuse of these letter that the IG found in the FBI and the telcos, that secret ruling by the Obama OLC is curious, to say the least.
The telecom employees were supposed to be responding to National Security Letters, which are essentially FBI-issued subpoenas. But those Patriot Act powers say the target must be part of an open investigation and that a supervisor has to approve it. While they require some paperwork, FBI agents have been issuing about 40,000 such NSLs a year.
But an AT&T employee provided the unit with a way around some of those requirements. The employee introduced them to so-called ‘exigent letters.’ Those letters, first used immediately following 9/11, asked for information by saying that the request was an emergency and that prosecutors were preparing a grand jury subpoena. The letter falsely promised that the subpoena, which gives the telecoms legal immunity, would be delivered later, the report said.
What’s more, the report noted that the cozy relationship between the bureau and the telecoms made it hard to differentiate between the FBI and the nation’s phone companies.
"The FBI’s use of exigent letters became so casual, routine and unsupervised that employees of all three communication service providers told us that they — the company employees– sometimes generated the exigent letters for CAU personnel to sign and return," the inspector general reported.
In fact, one AT&T employee even created a short cut on his desktop to a form letter that he could print out for a requesting FBI agent to sign.
Even that became too much. Agents would request "sneak peeks," where they’d ask if it was worth their time to file a request on a given phone number, the inspector general noted. The telecom agents complied. Soon it graduated to numbers on Post-it notes, in e-mails or just oral requests.
There’s no telling how many of those there were, but the audit estimates more than 3,500 off-the-book requests from 2003 to 2007.
AT&T employees turned into junior G-men, offering to look up the calling data not just of targets, but of the targets' "community of interests"--the social network of people the original target communicated with. One AT&T analyst took it the point of conducting his or her own investigation, and told the FBI about "calling patterns on four numbers [that] were 'very interesting,' and 'we strongly suggest' the bureau examines other, associated phone numbers."
Another blockbuster tidbit in the report: "FBI agents also used the exigent letters in a leak investigation to get records on more than 1,500 calls by Washington Post and New York Times reporters."
But all those actions were retroactively legalized by the OLC two weeks ago, probably in anticipation of this IG report's release. OLC rulings are legally binding, the "final word" on what the administration and its agencies can legally do. The IG, however, warned that "the Office of Legal Counsel’s ruling needs to be considered by Congress." That's the understatement of the week.
And in other depressing surveillance society news, the NSA spy cases have been tossed on the grounds that "A citizen may not gain standing by claiming a right to have the government follow the law."