The Washington Post reports on a new proposal from the Obama administration that would make it easier for the FBI to get access to an individual’s activities on the Internet.
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, as 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. […]
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] statute.”
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, every file downloaded,” said Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, which has sued major phone companies for complying with 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.