What is the Secret Memo that Gives Obama’s FBI Access to Phone Records without Court Approval?

Tuesday, May 24, 2011
A government watchdog group has sued the Department of Justice to force the release of a secret memo used by the FBI to access any American telephone records without court approval.
The Electronic Frontier Foundation (EFF) filed its civil case after the Justice Department refused to fulfill a Freedom of Information Act request seeking a copy of the memo that was drafted by the Office of Legal Counsel (OLC) on January 8, 2010.
EFF says the existence of the document was revealed by the Justice Department’s inspector general (IG) in a report discussing how the FBI has defended its warrantless snooping into phone records, which EFF says constitutes a violation of the Electronic Privacy Communications Act of 1986.
The IG report was heavily redacted, according to EFF, and the inspector general expressed “grave concerns” about the FBI’s interpretation of the law, which allows the FBI “to seek and obtain certain types of telephone records on a voluntary basis from providers without legal process of a qualifying emergency.”
McClatchy Newspapers also has sought a copy of the OLC memo, and was turned down as well.
The Justice Department has said it won’t release the document for two reasons: to protect “national security information concerning the national defense or foreign policy” and “inter-agency or intra-agency memorandums of letters which would not be available by law to a party...in litigation with the agency.”
Civil libertarians fear the FBI may again be resorting to illegal intrusions into Americans’ communications, such as those committed from 2001 to 2006. During that time, agents obtained thousands of telephone records for international calls in an attempt to thwart potential terrorists. The effort involved three telecommunications companies that helped the FBI create a “phone database on steroids” that included names, addresses, length of service and billing information.
-Noel Brinkerhoff
Justice Department Is Pushed to Release Phone Records Memo (by Marissa Taylor, McClatchy Newspapers)
Electronic Frontier Foundation v. Justice Department (U.S. District Court, District of Columbia) (pdf)


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