EFF's letter offers assistance to the FCC in conducting the investigation, given our role in both the litigation against AT&T and our groundbreaking Freedom of Information Act (FOIA) work. We also point out that under the Communications Act, the FCC does not need to pry into the uses that the FBI or the NSA make of American phone records -- the law is violated when the information is illegally given to the spooks and feds and no further information is needed for the FCC to reprimand the carriers. We also point out that one of the arguments the Commissioner used to deny Representative Markey's first request for an investigation -- based on the National Security Act -- has twice been rejected by Judge Walker in the NSA litigation. Finally, we offer to brief the FCC on FOIA revelations about the FBI's misuse of investigative tools to gather information about people under no suspicion of wrongdoing, including providing copies of so-called "exigent letters" [PDF] that the FBI had no legal authority to issue.

Representative Markey's efforts to get the FCC to do its job and protect your privacy highlights the breadth of the problem here. Your phone records are supposed to be protected by multiple laws, multiple agencies and serious Congressional oversight, yet it appears that each of those systems failed, and failed continuously for many years. Perhaps it has to fall to the courts to set the system right.