Digital Rights Group Files Lawsuit Over DOJ Opinion on Phone Records
By Andrew Ramonas | May 20, 2011 12:25 pm

A nonprofit digital rights group is demanding to see a Justice Department memorandum that it says lets the FBI obtain records of international telephone calls placed in the United States without a subpoena or other legal apparatus.

In its suit filed Thursday, The Electronic Frontier Foundation insists that the DOJ turn over the Office of Legal Counsel opinion, first requested by McClatchy Newspapers through the Freedom of Information Act. The DOJ told McClatchy it couldn’t release the memorandum because of national security concerns.

The Electronic Frontier Foundation said the DOJ informed it that it wouldn’t hand over the opinion requested by the organization through FOIA on Feb. 15.

The group appealed the decision with the DOJ Office of Information Policy on March 9. The organization said the DOJ acknowledged, but has yet to respond to the appeal. FOIA requires a response in 20 business days.

The DOJ Inspector General last year issued a report on how the FBI circumvented requirements of the Electronic Communications Privacy Act and internal guidelines to obtain phone records.

The FBI got phone records using requests through post-it notes, e-mails, telephone calls and by what the FBI called “sneak peeks” — all informal methods that the Inspector General deemed inappropriate.

The OLC opinion requested by The Electronic Frontier Foundation is mentioned in the Inspector General report, according to the organization. The report says “the OLC agreed with the FBI that under certain circumstances (word or words redacted) allows the FBI to ask for and obtain these records on a voluntary basis from the providers, without legal process or a qualifying emergency,” according to McClatchy.

“Even officials within the Justice Department itself are concerned that the FBI’s secret legal theory jeopardizes privacy and government accountability, especially considering the FBI’s demonstrated history of abusing surveillance law,” said Kevin Bankston, The Electronic Frontier Foundation senior staff attorney, said in a statement. “Secret law has no place in our democracy. Congress can’t even consider closing this dangerous surveillance loophole until we understand the FBI’s legal argument, yet the Department of Justice is still hiding it from Congress and the public.”

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