The Obama administration has been able to collect phone records of Americans from telecommunications companies without any kind of court order for four years, according to a secret legal memo that for now will remain locked away.

In January 2010, the U.S. Department of Justice’s Office of Legal Counsel (OLC) issued a memorandum stating that officials could collect calling records of phone company customers without first obtaining a subpoena or any other authorization from a judge.

The memo came in response to a request from the Federal Bureau of Investigation (FBI), whose use of “exigent letters” to obtain telephone and financial records without following any legal procedures had stirred controversy.

Neither the FBI nor the OLC released a copy of the memo, whose existence only came to light after the Justice Department’s inspector general issued a report in 2010 discussing its legal ramifications.

Inspector General Glenn Fine warned that the document established a “significant gap” in “accountability and oversight,” He also called on Congress to address the matter by amending the Electronic Communications Privacy Act of 1986, the law upon which the memo was based.

For now, “the details of the legal theory, and the circumstances in which it [the memo] could be invoked, remain unclear,” wrote Charlie Savage of The New York Times.

Wanting to find out how the OLC came to this legal conclusion, the Electronic Frontier Foundation sued the administration to force it to release the document.

But a district court judge and a federal appeals court have ruled that the administration can keep the memo under wraps and away from the public.

The U.S. Court of Appeals for the District of Columbia Circuit agreed with Justice Department lawyers that the administration enjoys broad legal authority to keep secret its interpretation of what the law permits it to do.

Privacy advocates were alarmed by the ruling, saying it could be used by the government to lock away other classified memos.

The foundation’s attorney, David Sobel, called the ruling “troubling,” adding: “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,” according to the Times.

-Noel Brinkerhoff

To Learn More:

Court Grants Secrecy for Memo on Phone Data (by Charlie Savage, New York Times)

Electronic Frontier Foundation v. Department of Justice (U.S. Court of Appeals, District of Columbia)

The Exigent Letter OLC Opinion (by Marcy Wheeler, Emptywheel)

FBI Violated Law in Obtaining Phone Records of Journalists and Others (by Noel Brinkerhoff, AllGov)