[Marxism] News from the George W. Bush third term front

Louis Proyect lnp3 at panix.com
Thu Jul 29 07:14:51 MDT 2010

White House proposal would ease FBI access to records of Internet 

By Ellen Nakashima
Washington Post Staff Writer
Thursday, July 29, 2010; A01

The Obama administration is seeking to make it easier for the FBI 
to compel companies to turn over records of an individual's 
Internet activity without a court order if agents deem the 
information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words -- "electronic 
communication transactional records" -- to a list of items that 
the law says the FBI may demand without a judge's approval. 
Government lawyers say this category of information includes the 
addresses to which an Internet user sends e-mail; the times and 
dates e-mail was sent and received; and possibly a user's browser 
history. It does not include, the lawyers hasten to point out, the 
"content" of e-mail or other Internet communication.

But what officials portray as a technical clarification designed 
to remedy a legal ambiguity strikes industry lawyers and privacy 
advocates as an expansion of the power the government wields 
through so-called national security letters. These missives, which 
can be issued by an FBI field office on its own authority, require 
the recipient to provide the requested information and to keep the 
request secret. They are the mechanism the government would use to 
obtain the electronic records.

Stewart A. Baker, a former senior Bush administration Homeland 
Security official, said the proposed change would broaden the 
bureau's authority. "It'll be faster and easier to get the data," 
said Baker, who practices national security and surveillance law. 
"And for some Internet providers, it'll mean giving a lot more 
information to the FBI in response to an NSL."

Many Internet service providers have resisted the government's 
demands to turn over electronic records, arguing that surveillance 
law as written does not allow them to do so, industry lawyers say. 
One senior administration government official, who would discuss 
the proposed change only on condition of anonymity, countered that 
"most" Internet or e-mail providers do turn over such data.

To critics, the move is another example of an administration 
retreating from campaign pledges to enhance civil liberties in 
relation to national security. The proposal is "incredibly bold, 
given the amount of electronic data the government is already 
getting," said Michelle Richardson, American Civil Liberties Union 
legislative counsel.

The critics say its effect would be to greatly expand the amount 
and type of personal data the government can obtain without a 
court order. "You're bringing a big category of data -- records 
reflecting who someone is communicating with in the digital world, 
Web browsing history and potentially location information -- 
outside of judicial review," said Michael Sussmann, a Justice 
Department lawyer under President Bill Clinton who now represents 
Internet and other firms.
Privacy concerns

The use of the national security letters to obtain personal data 
on Americans has prompted concern. The Justice Department issued 
192,500 national security letters from 2003 to 2006, according to 
a 2008 inspector general report, which did not indicate how many 
were demands for Internet records. A 2007 IG report found numerous 
possible violations of FBI regulations, including the issuance of 
NSLs without having an approved investigation to justify the 
request. In two cases, the report found, agents used NSLs to 
request content information "not permitted by the [surveillance] 

One issue with both the proposal and the current law is that the 
phrase "electronic communication transactional records" is not 
defined anywhere in statute. "Our biggest concern is that an 
expanded NSL power might be used to obtain Internet search queries 
and Web histories detailing every Web site visited and every file 
downloaded," said Kevin Bankston, a senior staff attorney with the 
Electronic Frontier Foundation, which has sued AT&T for assisting 
the Bush administration's warrantless surveillance program.

He said he does not object to the government obtaining access to 
electronic records, provided it has a judge's approval.

Senior administration officials said the proposal was prompted by 
a desire to overcome concerns and resistance from Internet and 
other companies that the existing statute did not allow them to 
provide such data without a court-approved order. "The statute as 
written causes confusion and the potential for unnecessary 
litigation," Justice Department spokesman Dean Boyd said. "This 
clarification will not allow the government to obtain or collect 
new categories of information, but it seeks to clarify what 
Congress intended when the statute was amended in 1993."

The administration has asked Congress to amend the statute, the 
Electronic Communications Privacy Act, in the fiscal year that 
begins in October.

Administration officials noted that the act specifies in one 
clause that Internet and other companies have a duty to provide 
electronic communication transactional records to the FBI in 
response to a national security letter.

But the next clause specifies only four categories of basic 
subscriber data that the FBI may seek: name, address, length of 
service and toll billing records. There is no reference to 
electronic communication transactional records.
Same as phone records?

The officials said the transactional information at issue, which 
does not include Internet search queries, is the functional 
equivalent of telephone toll billing records, which the FBI can 
obtain without court authorization. Learning the e-mail addresses 
to which an Internet user sends messages, they said, is no 
different than obtaining a list of numbers called by a telephone user.

Obtaining such records with an NSL, as opposed to a court order, 
"allows us to intercede in plots earlier than we would if our 
hands were tied and we were unable to get this data in a way that 
was quick and efficient," the senior administration official said.

But the value of such data is the reason a court should approve 
its disclosure, said Greg Nojeim, senior counsel at the Center for 
Democracy and Technology. "It's much more sensitive than the other 
information, like name, address and telephone number, that the FBI 
gets with national security letters," he said. "It shows 
associational information protected by the First Amendment and is 
much less public than things like where you live."

A Nov. 5, 2008, opinion from the Justice Department's Office of 
Legal Counsel, whose opinions are binding on the executive branch, 
made clear that the four categories of basic subscriber 
information the FBI may obtain with an NSL were "exhaustive."

This opinion, said Sussmann, the former Clinton administration 
lawyer, caused many companies to reevaluate the scope of what 
could be provided in response to an NSL. "The OLC opinion removed 
the ambiguity," he said. "Providers now are limited to the four 
corners of what the opinion says they can give out. Those who give 
more do so at their own risk."

Marc Zwillinger, an attorney for Internet companies, said some 
providers are not giving the FBI more than the four categories 
specified. He added that with the rise of social networking, the 
government's move could open a significant amount of Internet 
activity to government surveillance without judicial 
authorization. "A Facebook friend request -- is that like a phone 
call or an e-mail? Is that something they would sweep in under an 
NSL? They certainly aren't getting that now."

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