Obama Quietly Issues Ruling Saying It's Legal For The FBI To Break The Law On Accessing Phone Records

from the and-it-gets-worse dept

Fri, Jan 22nd 2010 8:59am — Mike Masnick

Following the report earlier this week that the FBI regularly broke the ECPA law, in obtaining information from telcos without going through the proper process (and, in some cases using just a post it note!), some interesting details from the full report have come to light. The two key ones? First, "the Obama administration issued a secret rule almost two weeks ago saying it was legal for the FBI to have skirted federal privacy protections." And, second, the original idea to use these bogus "exigent letters" didn't come from the FBI, but from an AT&T employee. We noted in the original report that no one seemed to be placing any blame on the telcos for allowing this, and why they're clearly abusing the law, in giving out such info without the proper rules being followed, seems like a big question:

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.

No wonder the telcos were so adamant about getting immunity on the warrantless wiretapping. It appears that the issue of telcos ignoring the rules when it came to your privacy goes pretty deep.

As for Obama issuing a rule saying that breaking the law is legal... how does that work? The president doesn't get to just declare something legal, especially when it clearly violates both the letter and intent of the law.

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Filed Under: fbi, national security letters, obama administration, phone records, spying
Companies: at&t

65 Comments

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Kerry Kaye (profile), 22 Jan 2010 @ 8:06am

I get more upset with Obama the longer he is in office. To think I voted for this. Wow.
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Anonymous Coward, 22 Jan 2010 @ 9:23am

reminds me of Eisode 1
"is that Legal?"
"I will make it legal"
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Quick Brown Fox, 22 Jan 2010 @ 9:29am

Constitution
Article III, Section I of the Constitution states, in part, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." It vests no such judicial power in the President of the United States, whose authority is set forth in Article II of the Constitution.
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Dark Helmet (profile), 22 Jan 2010 @ 9:31am

Re:
"I get more upset with Obama the longer he is in office. To think I voted for this. Wow."

I think the unintended consequence of a guy like Obama getting elected with so much interested popular support is that people are finally beginning to realize that the Presidency isn't a person, it's an office. And while the person sitting in that office might change every so often, the office does not.

Controlling elections isn't about controlling the outcomes of voting, it's about making sure that no matter who votes for whom, the guy that wins is under your control. Given how little hope and change has brought us either, can we finally begin examining who is actually pulling the strings?
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Anonymous Coward, 22 Jan 2010 @ 9:41am

Time
It's time to disband the U.S.
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Nastybutler77 (profile), 22 Jan 2010 @ 9:41am

This makes me so mad I can't even begin to find the words... Pphhthth aaarrshhh, frak.
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Jim L, 22 Jan 2010 @ 9:44am

No Suprise
Anyone here think that John McCain wouldn't have done the same thing?
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Jim L, 22 Jan 2010 @ 9:44am

No Surprise
Anyone here think that John McCain wouldn't have done the same thing?
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vastrightwing, 22 Jan 2010 @ 9:45am

Hope
We all wanted change? I fail to see any change happening. The president is still abusing his powers, PACs are still setting the agenda, politicians are stealing our money. As far as I can tell, the only difference here is that abuses are getting faster and bigger each term. Not only are we still in Iraq, we’re spreading our terror into more and more places. Our taxes are going to go up like never before. My only question is how long will this go on before the population does anything about it? I’ll answer that… I’ll be dead first, so it won’t happen in my life time.
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The Infamous Joe (profile), 22 Jan 2010 @ 9:46am

Reboot
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
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John Doe, 22 Jan 2010 @ 9:50am

The libs finally see the light
Anyone who thought BO would bring hope and change was delusional. He did nothing while in the Senate and had questionable ties in Chicago. He is the same as the rest, a politician. He was just a better liar than is foes. Unfortunately for him, he will probably only get 1 term as his lies were too big and will come back to bite him during the re-election campaign.
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Anonymous Coward, 22 Jan 2010 @ 9:57am

Re: No Surprise
I do. He'd be asleep.
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Anonymous Coward, 22 Jan 2010 @ 10:05am

Re: No Suprise
John McCain would not have done the same... He would have added that it was illegal to not comply with these illegal requests.
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Allison K, 22 Jan 2010 @ 10:06am

Re: Re:
Yeah, it was a lot easier when we could just hate on Bush. Having a nuanced view of a politician is so much more cognitively taxing.
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Anonymous Coward, 22 Jan 2010 @ 10:10am

Re: The libs finally see the light
At least we will not have to deal with McCain again.
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Anonymous Coward, 22 Jan 2010 @ 10:10am

Its all
Part of the new world order.

The time to revolt is now!!
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Anonymous Coward, 22 Jan 2010 @ 10:12am

Well, turns out everyone who thought the recent SCOTUS ruling killed democracy is wrong. Obama had already murdered it two weeks ago.
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John Doe, 22 Jan 2010 @ 10:13am

Re: Re: The libs finally see the light
Yea because what we have now is soooo much better.
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Anonymous Coward, 22 Jan 2010 @ 10:15am

If I break the law, they send me to jail!

Just because someone else is pulling the strings, doesn't mean he can't be impeached for it. One can sit in the hall of shame for eternity.
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Anonymous Coward, 22 Jan 2010 @ 10:15am

Re: Re:
@Dark Helmet

Very well stated!
And may I add that when the 'wizard(s) behind the curtain' are viewed in the open. The motives behind unending wars, financial bubbles, elimination of personal freedoms, and other unexplained phenomena of our time will be clear as day.
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interval, 22 Jan 2010 @ 10:15am

Re: Time
High time. Or at least allow states to secede from the union without the Fed raising a stick and a gun. Maybe even with the stink...
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interval, 22 Jan 2010 @ 10:18am

http://westernfrontamerica.com/2009/04/20/texas-eventually-secede-union/
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Dark Helmet (profile), 22 Jan 2010 @ 10:26am

Re: Re: Re:
Wizards = about 10-15 international bankers. They've gone by tons of names in the past, but you can't even mention them without getting ridiculed.

The old Illuminati is the new Council on Foreign Relations, Trilateral Commission, and Bilderburgers....
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Bruce E, 22 Jan 2010 @ 10:28am

President slowly becoming king
Apart from term limits, which have been honoured, it appears that the role of the President of the United States is being morphed into that of a King. Ironic, since kings/queens for countries like Canada and Britain have long been titular heads of state only.
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Batman (profile), 22 Jan 2010 @ 10:40am

Does Anything He Does...
Surprise you anymore? Seriously? Someone once wrote somewhere that the people deserve the government they get. I just hope it's still around in 2012 so we can vote him out....
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Sneeje (profile), 22 Jan 2010 @ 10:42am

Re: Re: Time
Riiiight, because as soon as that happened, ambrosia would start falling from the sky, angels would sing, and we'd all start farting platinum.

I'm not sure what reality you guys live in, but in my reality, which is populated by "humans" who are all subject to the same human failings.

Large organizations, whether they be cities, states, villages, countries, etc. will be influenced by money, power, and things not related to the interests of the people. So disband the US and some other power will move to fill its place--you'll be complaining just as hard about the state governments. Or perhaps you'd like to move abroad to one of the many nirvanas that exist there? The US is of course the only one affected by corruption and power. Good luck with your plan, though.
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johnnymags, 22 Jan 2010 @ 10:47am

trans parents sea
Transparency means "You won't see me do it"
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OldGeek, 22 Jan 2010 @ 10:49am

Change?????
Keep blaming the president for everything and vote the same Congressmen and Senators back in office and things will continue as they are.
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Dirk Belligerent (profile), 22 Jan 2010 @ 10:49am

How it works
"As for Obama issuing a rule saying that breaking the law is legal... how does that work? "

He views Himself as an Emperor Messiah, a philosopher king, who has deigned to descend from Heaven to remake the United States into a more perfect (Soviet) Union as a favor to us puny humans. If you're unhappy about anything He does, it's because you're RAAAAAAAAAAAAAAAAACIST!!!

I saw a poll today that 77% of American investors view Dear Leader as being "anti-business." I wonder how many of those chumps voted for him ignorant of the fact that he was a Marxist and that all of his anti-freedom moves were easily foretold, though unreported by his sycophantic media lapdogs?
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FormerAC (profile), 22 Jan 2010 @ 10:49am

Why does this surprise anyone?

Obama has already made his feelings clear on this issue with a very public flip-flop on telco immunity. He is just another politician, and like all politicians, his first priority is his own ass.

My take on the matter is someone came to Obama and pointed out that it is a bad policy decision to go after the people who enabled Bush to disregard the law. If Obama made a serious attempt to prosecute anyone for this fiasco, what do you think would happen to him and his supporters the moment he was no longer in power?

That issue aside, ask Nixon what happens when the president pisses off the FBI.
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Barak Obama, 22 Jan 2010 @ 10:57am

Re: Constitution
Article III, Section I of the Constitution states, in part, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." It vests no such judicial power in the President of the United States, whose authority is set forth in Article II of the Constitution.

What is this "Constitution" of which you speak? I don't believe I'm familiar with the term.
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Anonymous Coward, 22 Jan 2010 @ 10:58am

didn't make it legal
Obama didn't issue a rule making it legal. What happened was the OLC (office of Legal Counsel), in the fine Yoo tradition, issued an opinion that it was all A-OK. I'd be interested to see when the OLC has ever said anything was not OK. It seems to be their job to simply find legal justification for whatever is happening.

You can read the full report at ( http://www.justice.gov/oig/special/s1001r.pdf ). It's over 300 pages, so I starting from the conclusions in the back. I've only scratched the surface and it's pretty ugly - it describes:

* inaccuracies told to the FISA court (inaccuracies seems a very gentle word to describe perjury)
* Phone records of reporters obtained to investigate leaks.
* Obtaining and uploading into [redacted] database thousands of phone records without first knowing if they were relevant to any terrorist investigation. Today, they still can't tell which of these numbers are relevant.

Fun times we live in.
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Dark Helmet (profile), 22 Jan 2010 @ 11:06am

Re: Re: Constitution
"What is this "Constitution" of which you speak? I don't believe I'm familiar with the term."

I believe it's a value term used in role playing games to describe how effectively one can stave off attacks to one's person.

Thus, most American's have no constitution, and don't even understand what it is....
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MCR, 22 Jan 2010 @ 11:13am

Re: President slowly becoming king
Tell that to Obama as he's trying to get Healthcare passed. The President doesn't have nearly the power he'd like. Bush wouldn't have gotten anything done if 9/11 had never happened.

I think Americans forget that the President is not all powerful though, which is why they're blamed for everything.
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Big Broccoli, 22 Jan 2010 @ 11:18am

Sure. Right.
And all the right-wingers wouldn't call him a "pinko-commie leftist" if he did hold the FBI accountable. Then he would be "aiding the terrorists" Damned if you do, damned if you don't.

What a joke. Can you say Patriot act?
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Tom Landry (profile), 22 Jan 2010 @ 11:22am

Re: Reboot
But when old Benjamin back to the side of the barn, he noticed that the law had been changed once again.......
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yesfolks, 22 Jan 2010 @ 11:23am

ITS RETURN TO NIXON TIME
yes folks you too cna spy , cheat and lie for a living how wonderful
oh somehting you do is illegal , JUST CHANGE THE LAW

who cares aobut what it does and the abuses it carries YOUR THE BOSS

haha
obama hussein NIXON
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Thomas J, 22 Jan 2010 @ 11:29am

Do over
"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." -DofI
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Zombie Doc Homicide, 22 Jan 2010 @ 11:30am

Re: Constitution
LOL, It started with Johnson and Nixon the slow covert perversion of the constitution. Nixon used the FBI as his secret police, Reagan was pretty shady, remember Ollie North? But Bush Jr and Obama take the cake these guys are just blantant about wiping their asses with the constitution. Yeah, Obama has turned in to a plate of fail, and with a side of I told you so from the right. Even more frightning is that out side of tech blogs most of this crap never makes it in to the main stream media. Meaning, they are just reporting less and less of the truth and more of the ruling party's spin.
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Anonymous Coward, 22 Jan 2010 @ 11:31am

If the president does it, it can't be illegal.
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Zombie Doc Homicide, 22 Jan 2010 @ 11:33am

Just a quick note...
If we leave the responsibility of tomorrow up to intuitions like the world trade organization, the world bank and the international monetary fund. We are dooming ourselves to a future of corporate feudalism ecological catastrophe.

-Leftover Crack from the song "Soon We'll Be Dead"
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Anonymous Coward, 22 Jan 2010 @ 11:36am

Re: Re: Constitution
LOL, It started with Johnson and Nixon the slow covert perversion of the constitution

Oh, it goes back much further than that... Remember FDR's threat to pack the Supreme Court?
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mike allen (profile), 22 Jan 2010 @ 11:44am

same
all over the world one rule for us another for them!!!!!!!!!!! Viva la revolution.
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Boost, 22 Jan 2010 @ 11:45am

Re: Re: Re: Constitution
FDR?!? I remember a sub-god that had public office for about a billion terms in the 30's and 40's. Is that the same guy? I think he said once that his son (Obama) would rise again and save us from the devil (Bush).
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James, 22 Jan 2010 @ 1:25pm

Re:
Really...you honestly think that a Mccain administration would NOT have flexed their political muscle irresponsibly? Don't be so naive, remember, you only hear about the bad things happening and never the good reasons behind the decisions being made.
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Designerfx (profile), 22 Jan 2010 @ 1:28pm

sheeshs
if the government doesn't follow the law, why should we?

I hope they realize how significant and overstepping such a concept is.
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Bruce E, 22 Jan 2010 @ 1:33pm

Re: Re: President slowly becoming king
I'm not talking specifically about Obama or Bush for that matter, but rather about the series of Presidents and how their power shifts over time.

With respect to healthcare legislation/reform being passed (or rather not passed) is certainly an example where the the two legislative houses are exercising their power and the President only has political power (and is seems little of it) in that process.

However, these signing memos (in which the President signs a law but attaches some sort of note or letter saying that he and the executive are going to ignore parts of the legislation) and other actions, such as warrantless wiretapping (without the special court's overview) and declarations by their lawyers that, say, certain things that the general public would call torture are not to be considered torture, are all ways in which the Office's power are increasing.

And speaking of the torture memos, these were documents by lawyers representing the upper executive in their official capacity, saying that they thought X was legal. And now everyone takes that as a fait accomplis that it is legal. WTF? That's like a person hiring a lawyer, the one specifically that gives the indication that they are willing to write a justification that, say, murdering someone who is harrassing you is legal, and then saying "well, that's it, their lawyer told them it was legal so it must be".

What happened to the courts trying people, such as senior executive? I understand that the equivalent for the President (Bush) and Cheney (VP) would be impeachments which is largely a quasi-judicial political process, but what about people who "just went along"?
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Thomas (profile), 22 Jan 2010 @ 1:39pm

No different..
from Bush. Presidents nowdays don't give a s*** about the constitution or the law. Why should they if they've found a way around it and gotten away with it?
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nasch (profile), 22 Jan 2010 @ 1:42pm

Re: Re:
Really...you honestly think that a Mccain administration would NOT have flexed their political muscle irresponsibly?

Why are you bringing up McCain, he has nothing to do with this. If McCain had won we would be talking about the stupid nasty illegal things he was doing. But he didn't, so we're talking about the ones Obama is doing.

Don't be so naive, remember, you only hear about the bad things happening and never the good reasons behind the decisions being made.

Who's being naive? You'd rather just assume the President has a perfectly good reason for secretly breaking the law?
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dataGuy (profile), 22 Jan 2010 @ 1:45pm

Re: Re: Re: Re: Constitution
It’s my understanding that the wheels came off the track almost immediately; with Congress directing federal support for the city of Savannah after their great fire. They knew it was unconstitutional for congress to divert tax dollars to aid the city but they did it anyway. One more example that the road to hell is paved with good intentions.
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bob, 22 Jan 2010 @ 1:58pm

Don't Expect
Any congressmen to open an investigation into this, they will still blame Bush.
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DS, 22 Jan 2010 @ 2:33pm

Re: Re: Re: Constitution
So, all we need is a health potion?
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Anonymous Coward, 22 Jan 2010 @ 2:39pm

Those telco employees deserve to be shot unceremoniously.
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Chargone (profile), 22 Jan 2010 @ 2:40pm

Re: Re: Re: Time
well, if nothing else, reducing the USA to it's component parts would make life easier for the Rest of the world. at least until the corporations decided the EU or china or someone made a better beatstick...
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Dark Helmet (profile), 22 Jan 2010 @ 2:42pm

Re: Re: Re: Re: Constitution
"So, all we need is a health potion?"

That and a few hundred million backbones would be great...
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1eddieboy1, 22 Jan 2010 @ 4:03pm

So Obama made a rule?
What difference does it make that Obama made a rule contrary to the U.S. Constitution? He's probably not even a citizen of the U.S.A. much less the President. When did he start recognizing the Constitution anyway. He just does what he wants to as long as we will stand still and do nothing.

Where are the real Americans anyway?
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Anonymous Coward, 22 Jan 2010 @ 5:33pm

"At least I'm f*cking trying!" -Minor Threat
@ Jim L

That is exactly why the two party system is corrupt beyond repair. The man I voted for (Ralph Nader) would NEVER EVER do anything even remotely like this.

But you'll scoff again and again at every third-party candidate.
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Giselle, 22 Jan 2010 @ 5:58pm

Re: Re: No Suprise
Oh, well, it's all okay then. For a while there I was thinking that a currently serving president had to adhere to the Law and the Constitution. Now that I know he only has to do no worse than another person hypothetically might have done if he had hypothetically won the presidency, I feel so much better.

Actually, I'm not American. Words cannot express how truly grateful I am for that. And it's not because of your long string of horrible presidents. It's because of the voters. Your presidents reflect your citizens and it's an ugly picture.
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msfreeh, 22 Jan 2010 @ 9:51pm

FBI WATCH
to view a partial list of crimes committed by FBI agents over 1500 pages long see
forums.signonsandiego. com/showthread.php?t=59139

to view a partial list of FBI agents arrested for pedophilia see
dallasnews. com/forums/viewtopic.php?t=3574
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John Gardner (profile), 23 Jan 2010 @ 9:01am

Re: Reboot
The problem with abolishing this gov is that the Strong Arm of the Gov (military/police, whatever) would be on you like white on rice so quick that we would not be able to overthrow this gov, no matter how bad it got. That's why our founding fathers fled Britain - they couldn't overthrow that gov there either.

Abolishing government is easier to write than it is to execute.
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Winston, 24 Jan 2010 @ 7:53am

Re: Re: Re: No Suprise
"And it's not because of your long string of horrible presidents. It's because of the voters. Your presidents reflect your citizens and it's an ugly picture."

I think its' a combination of dumbed-down, apathetic and/or ignorant voters combined with the fact that the candidates we are allowed to vote for are all vetted by the plutocracy. As a result, nothing of any real national significance ever changes. Like The Who said in "Won't Get Fooled Again": meet the new boss, same as the old boss. Every two years voters are enticed off of their sofas by a few hot-button social issues of little real national importance. Thus, power simply bounces back and forth between two equally corrupt, bought and paid for parties. And since those in power have found that they don't have legal problems violating the Constitution because their literally treasonous acts are never seriously challenged, they continue to violate "the law" whenever it's convenient. Laws, you see, are only for us peons, not the ruling class.
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Anonymous Coward, 25 Jan 2010 @ 7:39am

Re: Re: Constitution
While it's already been said that it goes back to AT LEAST FDR, you started with Johnson rather than Kennedy? :) Regardless, the media didn't report the way they started reporting beginning in the 60's and with each passing year, it gets deeper and deeper which I don't think is always a good thing.
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Anonymous Coward, 2 Jun 2010 @ 9:35am

Re: Re: Re: No Suprise
ahh Giselle...you think we actually choose our leaders? Thats rich. voting here is all smoke and an exercise in futility
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Eugene (profile), 26 Oct 2010 @ 1:08pm

Re: Re: Re: Re: Time
Yeah, it would make life easier for the rest of the world, because we would be embroiled in insurrections, massacres, and various attempted genocides, etc
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BJ Upton, 26 Oct 2010 @ 1:47pm

Re: Re: Re: No Suprise
And what country are you from?
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