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News Link • Internet

White House proposal would ease FBI access to records of Internet activity

• washingtonpost.com/
 
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] 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 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.

2 Comments in Response to

Comment by Ross Wolf
Entered on:

One cannot consider separately the FBI’s request to obtain without warrants, Citizens’ "electronic communication transactional records" including addresses persons sent email, without also considering the affect of pending federal legislation that may pass.

For example, Sen. McCain on March 4, 2010 introduced The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010.” McCain’s bill would eliminate several Constitutional protections allowing Government to arbitrarily pick up Americans on mere suspicion—with no probable cause. Your political opinions and statements made against U.S. Government could be used by Authorities to deem you a “hostile” “Enemy Belligerent” to cause your arrest and indefinite detention. Under S.3081 government may use an individual’s phone call and email information to allege without probable cause “suspicious or hostile activity against the United States or civilians to detain Americans.” U.S. activists and individuals under S.3081 would be extremely vulnerable to detention and or prosecution, if (charged with suspicion) of “intentionally providing support to an Act of Terrorism”, for example American activists can’t control what other activists might do illegally—they network with by email domestically and overseas. Government under S.3081 would need only allege an individual kept in detention, is an Unprivileged Enemy Belligerent suspected of; having engaged in hostilities against the United States; its coalition partners; or Civilians or (has) purposefully and materially supported hostilities against the United States; its coalition partners or U.S. civilians.

More recently Obama gave a speech in May 2010 that asked Congress to pass legislation to give the President, power to detain any person in the U.S. that government deems a “combatant” or likely to engage in a violent act in the future. President Obama wants the power to incarcerate U.S. Citizens not on evidence, but for what they might do. Obama wants the power to override the U.S. Constitution. If Obama’s proposed legislation is passed, the President will have the power to detain indefinitely any American without probable cause or evidence, based on conjecture someone might do something violent in the future.

It is problematic, if the FBI is allowed warrant-less access to Citizens’ "electronic communication transactional records" including persons’ addresses that Citizens sent email and McCain or Obama’s legislation, or similar legislation is passed, Citizens’ ’"electronic communication transactional records" will be used by the FBI and other government agencies to pick up and indefinitely detain Americans without probable cause.

See: Obama Sound-Video as for the power to detain people without probable cause at: http://www.brasschecktv.com/page/630.html

See McCain’s 12-page Senate bill S.3081 The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 at:       

assets.theatlantic.com/static/mt/assets/politics/ARM10090.pdf

Comment by Powell Gammill
Entered on:

Change.


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