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