Court grants secrecy for memo on phone data

A federal appeals court on Friday ruled that the Obama administration may continue to withhold a Justice Department memo that apparently opened a loophole in laws protecting the privacy of consumer data.

The memo establishes the legal basis for telephone companies to hand over customers' calling records to the government without a subpoena or court order, even when there is no emergency, according to a 2010 report by the Justice Department's inspector general. The details of the legal theory, and the circumstances in which it could be invoked, remain unclear.

The ruling, by the United States Court of Appeals for the District of Columbia Circuit, came down on the side of a broad conception of the executive branch's power to keep secret its interpretation of what the law permits it to do. The ruling may make it easier for the government to shield other memos by the Justice Department's powerful Office of Legal Counsel from disclosure under the Freedom of Information Act.

The document at issue is a classified memo issued by the Office of Legal Counsel on Jan. 8, 2010. A report later that year by the Justice Department's inspector general at the time, Glenn A. Fine, disclosed the memo's existence and its broad conclusion that telephone companies may voluntarily provide records to the government "without legal process or a qualifying emergency," notwithstanding the Electronic Communications Privacy Act.

The F.B.I. had asked for the memo as part of an investigation by Mr. Fine into problems with the bureau's use of so-called exigent letters to obtain telephone and financial records without following any legal procedures.

The bureau, which has abandoned exigent letters, said that it did not employ the legal theory outlined in the memo when using the letters, and that it had no plans to use it in the future. But Mr. Fine warned that the existence of the Office of Legal Counsel's theory created a "significant gap" in "accountability and oversight," and urged Congress to modify the statute. Lawmakers have not acted on that recommendation.

The Electronic Frontier Foundation filed a lawsuit in 2011 seeking to obtain the memo under the Freedom of Information Act. But a District Court judge ruled that the memo fell into an exception to that law covering materials developed when the executive branch is deliberating internally about what policy to select, and a three-judge panel on the appeals court agreed on Friday.

The Office of Legal Counsel issues binding legal advice to the executive branch. If it says something is permitted, officials who act on that advice are essentially immune from prosecution. Its power to adopt secret legal theories has come under greater scrutiny since a string of controversial opinions it produced during the Bush administration, including signing off on warrantless wiretapping and on the brutal questioning of detainees.

"Even if the O.L.C. opinion describes the legal parameters of what the F.B.I. is permitted to do, it does not state or determine the F.B.I.'s policy," Judge Harry T. Edwards wrote in the decision on Friday. "The F.B.I. was free to decline to adopt the investigative tactics deemed legally permissible in the O.L.C. opinion."

As a result, he added, the memo was covered in its entirety by the exception. By the same legal reasoning, nearly any Office of Legal Counsel memo would be exempt from disclosure.

"We are pleased with the decision," said Andrew Ames, a Justice Department spokesman.

The Electronic Frontier Foundation had argued that because of the special role played by Office of Legal Counsel memos, they amounted to the government's official "working law" and should not fall into the category of deliberative materials that are exempt from disclosure.

David Sobel, a lawyer for the foundation, called the ruling "troubling," describing the office's memos as a body of "secret law" that the public has a right to know about. He said he hoped the ruling would reinvigorate efforts among some lawmakers to enact a law opening such memos to greater scrutiny outside the executive branch.

"It's kind of hard to imagine how a different case in the D.C. Circuit is likely to have a different outcome in light of this opinion," he said.

Legal specialists said the ruling was in line with how other federal courts, notably the United States Court of Appeals for the Second Circuit, in New York, have dealt with requests under the Freedom of Information Act for Office of Legal Counsel memos in recent years.

During the litigation, the Justice Department also told the court that parts of the memo contained classified information, "highly specific in nature and known to very few individuals," about a secret intelligence-gathering technique that the F.B.I. is using against "hostile entities."

The memo was also requested by McClatchy Newspapers, and a Justice Department letter rejecting that request may offer a clue about its contents. It suggested that the memo involves a statute that makes an exception to data privacy laws for "the acquisition by the United States government of foreign intelligence information from international or foreign communications."

That same statutory exception is said to be the legal basis for a recently disclosed C.I.A. program in which AT&T, under a voluntarily contract rather than a subpoena, searches its vast database of international phone records and provides data about calls that may help the agency identify associates of overseas terrorism suspects.

Most of those communications are purely foreign, officials have said. But when AT&T analysts identify a potentially relevant call that has one end inside the United States, it partly masks the number on that end. The C.I.A. refers the matter to the F.B.I. for domestic investigation.

The bureau still uses so-called national security letters to compel telephone companies to turn over records without a court order. A recent report by a review group appointed by President Obama to review surveillance policy recommended that national security letters be overhauled to require judicial approval.

The government's use of bulk calling records has come under greater scrutiny after leaks disclosed that the National Security Agency has been collecting records of every domestic phone call. On Friday, the government announced that the nation's surveillance court had reauthorized that program for an additional 90 days.

In recent weeks, two Federal District Court judges have come to opposite conclusions about whether the bulk collection program is lawful. On Thursday and Friday, the American Civil Liberties Union and the Justice Department appealed the rulings.

The surveillance review group has also recommended overhauling the program so that the data would remain in the hands of the phone companies and judicial approval would be required for each government search through the records.

By Charlie Savage

Source: The New York Times