More Warrantless Searches on Their Way
by Charles Lemos, Thu Jul 29, 2010 at 10:04:59 PM EDT
First, the background courtesy of the American Civil Liberties Union:
The National Security Letter provision of the Patriot Act radically expanded the FBI's authority to demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval.
Through NSLs the FBI can compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website. The provision also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand. Since the Patriot Act was authorized in 2001, further relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase.
The Justice Department's Inspector General has reported that between 2003 and 2006, the FBI issued nearly 200,000 NSLs. The inspector General has also found serious FBI abuses of the NSL power. The ACLU has challenged this Patriot Act statute in court in three cases.
Today, the Washington Post reported that 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." According to the Post, the Administration wants to amend the existing section of the law that covers National Security Letters (NSLs) by adding "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."
This is the sort of thing that drives civil libertarians on the left to despair and frustration. What the FBI and the Obama Administration want is to force Internet Service Providers (ISPs) to turn over information about a user's traffic habits without a warrant. I have to ask just how difficult is it to seek a warrant? I understand the number of NSLs is now running at 30,000 to 50,000 a year but civil libertarians remain concerned after a 2007 Inspector General report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request.
Marc Ambinder of The Atlantic has more on the implications and the potential for abuse.