The Electronic Frontier Foundation reveals that FBI abuses of "exigent circumstances" letters not only illegally sought information on individual customers but also were used to obtain information on people they frequently called.
A Freedom of Information Act request from EFF uncovered the new revelations, staff lawyer Kurt Opsahl wrote.
We already knew that the FBI’s use of “exigent circumstances” letters was illegal. DOJ’s Inspector General Fine already condemned them in a well-publicized IG report (pp. 93-98) that outlined how hundreds of requests were made where there was no immediate danger of death or serious physical injury and, in any event, “the letters did not recite the factual predication necessary to invoke [the emergency] authority.”
Now it turns out the FBI was using the "exigent circumstances" exception to gather information on "communities of interest" -- the people who frequently call and are called by the person the FBI is interested in.
The Electronic Communications Privacy Act puts strict limits on when a telecommunications provider can hand over customer data to the government. [It] prohibits disclosure of the contents of a communication, and ... the release of a “record or other information pertaining to a subscriber to or customer” ... Absent a specific statutory exception, it is flatly illegal for the telecoms to provide customer information to the government.
So the “community of interest” requests made as part of the “exigent letters” were doubly illegal. We need a new word for this – what do you call an illegality piled on top of another illegality? Illegal squared?
The requests would not have been legal under regular National Security Letters, either. These letters authorize the FBI to request “the name, address, length of service, and local and long distance toll billing records of a person…” (emphasis added) under specific circumstances. Presumably, that's why they went the exigent circumstances option.
Interestingly, the FBI indicated that requests would be followed by formal legal process, "envisioning an after-the-fact papering over of the illegality," Opsahl says. However, this follow-up often never happened. Not even a grand jury subpoena would justify these "community of interest" requests, since the information the government can request from phone companies and ISPs doesn't include other people's information.
In short, there is no legal basis for these “community of interest” demands, whether issued as exigent letters, or through an NSL or grand jury subpoena. These revelations also underscore the need for substantive oversight that will prevent requests for information that go beyond that allowed by law.