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

Ellen Nakashima
Washington Post
7/29/2010

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 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.

The article continues at the Washington Post.

From Allahpundit at HotAir.com:

…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.

That’s certainly their best argument, and while they’re using classic slippery-slope reasoning to justify it — if X, why not Y? — it’s unclear to me why they’re not right about functional equivalents. How are e-mail addresses and timestamps on messages any more revealing than phone numbers and listings of when calls were made? (Browser histories are obviously a different ballgame.) They can be more revealing, of course: A call made to a pay phone won’t identify who’s on the other end of the line whereas an e-mail sent to an address that contains someone’s name tells you right away whom it’s meant for. But of course, the opposite scenario’s also possible: A call made to someone’s home phone or cell phone points to the identity of the recipient whereas a message sent to an e-mail address with no identifying info in the address reveals little at first glance about who owns it. Exit question: Should e-mail identifiers be given greater protection? And if so, is that simply in order to draw a line on the slope before the feds slip any further downward?

Update: Glenn Beck on radio today via The Right Scoop.

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