Attorneys Spar on FBI Surveillance Authority to Collect Call Records

The OLC opinion “sought in this case establishes the scope of the Executive Branch’s authority under federal law to obtain private communications records without legal process or a qualifying emergency, in spite of apparent statutory prohibitions to the contrary,” EFF said in a court brief filed June 20 (http://bit.ly/17R0XPS). “The Opinion was generated after a lengthy inquiry by the Office of Inspector General ('OIG') into the use and misuse of various surveillance authorities by the Federal Bureau of Investigation ('FBI') during national security investigations.” That OIG investigation started in 2005 and yielded questionable information about the FBI’s use of national security letters as well as exigent letters, a practice in which the FBI “had acquired call record information from telephone company employees without any legal process whatsoever,” EFF said in its brief. The FBI sought the OLC opinion in November 2009, well after the investigation had begun, and pointed to the opinion’s legal reasoning later when discussing the surveillance.

Judge Sri Srinivasan questioned DOJ attorney Daniel Tenny on his claims that surveillance practices differ from those covered in opinions in other cases, such as with taxation. This OLC opinion affects the public due to the way it affects telcos and their customers, Srinivasan said.

Another judge said Tenny was brushing off questions on how the FBI held up this opinion’s legal reasoning. “You're blowing it off too quickly,” Judge Harry Edwards said. He criticized the idea of an agency using such a document to justify past behavior, suggesting the guidelines are more than advice and “that’s the law, as we look at it,” with implications for future actions at the agency. If an agency uses an opinion for justification of its actions, “isn’t that law that has to be disclosed?” Edwards asked. To Edwards, the request for the opinion amounted to, “Those of you who are complaining about what we did, here’s your answer,” he said. Tenny said OLC delivering guidelines is different from adopting the opinion as law, emphasizing that authority flowed not from the OLC but from the statute. “The question is whether [the opinion] should be involuntarily made public,” Tenny said.

The FBI asserted its own authority, which while “consistent” with the OLC opinion, was its own, Tenny argued: “The policymaking official is the one setting the rule going forward.” Tenny emphasized the “extra step of remove” surrounding the opinion and dismissed the idea that the FBI relied on the OLC opinion for its surveillance, saying there’s no evidence the government did anything to anyone based on the opinion. Edwards asked if the FBI could set practices inconsistent with the OLC opinion. Yes, Tenny said, but in practice it’s customary for agencies to look to OLC’s guidance.

In his rebuttal, EFF staff attorney Mark Rumold told judges that Tenny had just described an FBI “bound” to follow the OLC opinion. Rumold said this has held true in other cases: “The opinions weren’t formally binding, but they were routinely followed by the agency.”

"The Justice Department essentially conceded at oral argument that it views OLC opinions as binding determinations that federal agencies are expected to follow,” Electronic Privacy Information Center President Marc Rotenberg told us. “That is why these opinions, unlike other legal opinions drafted by government lawyers, are not simply advice as described in the FOIA. Because they are ‘working law’ they should be disclosed.” EPIC has criticized government surveillance practices, and both Rotenberg and EPIC Appellate Advocacy Counsel Alan Butler attended the Tuesday argument.

EFF Senior Counsel David Sobel pointed to the court’s recognition of the FBI’s timing. “We thought it was significant that Judge Edwards recognized that the OLC Opinion was used by the FBI to justify its method of obtaining sensitive data from telecom providers after the Inspector General raised serious questions concerning the legality of those actions,” Sobel, a counsel for this case, told us by email. “EFF believes that the Bureau cannot, on the one hand, wrap itself in the blanket of OLC approval while, on the other, argue that the OLC’s legal conclusion is privileged and not subject to public scrutiny. The court also seemed to recognize that the Opinion has a significant potential impact on the privacy rights of telephone subscribers, and is not merely internal ‘advice’ that the FBI can simply ignore, as the government has argued.”

During oral argument, Rumold tried to make the case that the FBI adopted the opinion as law, but the judges voiced strong skepticism. Even the OLC recognizes that it is issuing “controlling” documents, Rumold said. Moments after Rumold began speaking, Judge David Sentelle stopped Rumold. “You don’t seem to be talking about what the case seems to be about,” Sentelle cautioned, leading Rumold to insist he was providing “the factual background” to the case. Sentelle told Rumold to “take the quotes off” the word advice in referring to the OLC opinion -- “it’s advice.” When Rumold began describing how the OLC might be perceived as law, Edwards jumped in: “You assume OLC is the equivalent of the attorney general?” Edwards criticized Rumold’s argument as “so sweeping” that he wondered if there would be any OLC opinion that Rumold thinks shouldn’t be disclosed.

Several parties signed on to an amicus brief supporting EFF earlier this year (http://bit.ly/1blqrI8), including the American Civil Liberties Union, the Constitution Project, Citizens for Responsibility and Ethics in Washington, OpenTheGovernment.org, Project on Government Oversight, the Brennan Center for Justice and The Washington Post.