YNOT – Internet service providers that are reluctant to provide personal information about their users to the FBI and the bureau’s determination to force compliance in cases it considers of vital interest to “national security” are at the center of a small row between the FBI and the U.S. Congress.Since the terror attacks of 9/11, the FBI has been authorized to forego traditional court-ordered, evidence-based warrants in order to obtain subscriber and customer information from telephone companies, banks, credit bureaus, libraries and other businesses. Instead, during counterintelligence and counterterrorism investigations the bureau employs so-called “national security letters” that must be signed only by a special agent in charge of a field office. In most cases, the records administrators hand over their files without complaint, even though the bureau’s frequent misuse of the tactic is well documented and several agents have been reprimanded by the Justice Department.
National security letters do not have to be aimed at a suspect in an investigation. The FBI can and has used them to obtain information about citizens who simply may have a tangential connection to some small piece of information. The subjects of the records snatches usually are not informed about the bureau’s interest. Between 2003 and 2006, the FBI issued 192,499 national security letters, according to bureau records.
The one commercial segment from which the FBI has faced consistent recalcitrance is internet service providers. Although required by federal law to assist in all criminal investigations, because the underlying law states communications providers must provide only customer names, addresses, dates and telephone numbers attached to incoming and outgoing calls, ISPs frequently sue to prevent handing over their data. Their claim: As written, key provisions of the law do not apply to their records.
The FBI wants Congress to fix the Electronic Communications Privacy Act, previously amended in 1993, to grant the bureau specific, complete and unsupervised access to records detailing every American’s online activities, including web surfing habits, email and instant messages…without a warrant.
To be fair, the Justice Department has addressed the FBI’s misuse of national security letters, and the practice has become less invasive. However, according to Senate Judiciary Committee Chairman Patrick Leahy [D-Vt.], the Justice Department’s proposed changes to the law, attached to an intelligence funding authorization bill, “raise serious privacy and civil liberties concerns.”
“While the government should have the tools that it needs to keep us safe, American citizens should also have protections against improper intrusions into their private electronic communications and online transactions,” Leahy said in a statement released Thursday.
He plans hearings about the bill and the ECP act this fall.
Critics and privacy advocates already are gearing up for a fight, fearing the proposed amendments would further distance federal courts from scrutiny over government intrusions into citizen privacy.
“The FBI is playing a shell game,” attorney Al Gidari told The Washington Post. “This is a huge expansion [of the FBI’s authority], and burying it this way in the intelligence authorization bill is really intended to bury it from scrutiny.”
Gregory Nojeim, director of the Project on Freedom, Security and Technology at the Center for Democracy and Technology, said the FBI already has all the authority it needs under provisions of the Patriot Act, and changing the ECP act is unnecessary and irresponsible. In addition, the changes the FBI seeks conceivably could lead to a massive government database consisting of every piece of communication ever written in pixels by every person on the face of the planet.
“The implications of the proposal are that no court is deciding whether even that low standard of ‘relevance’ is met,” Nojeim told the Post. “The FBI uses national security letters to find not just who the target of an investigation e-mailed, but also who those people e-mailed and who e-mailed them.”
