Caught Red Handed, FBI Asks Congress to Change the Law

If you or I get caught skirting the law, things generally do not work out well for us. If the FBI does it, they just get Congress to rewrite the law for them. In this case, the Senate is looking the grant the FBI a much broader authority to access your internet information without a warrant. That’s is good for the FBI, because they have already been demanding that data without a warrant anyways.

The language that has been included in funding for intelligence agencies would allow the FBI to use National Security Letters to access browser histories, email records, IP addresses and more – all without a court order.

Background on the Overuse of National Security Letters

What the FBI has been doing is using National Security Letters (hereafter, NSLs) to force companies to fork over their customers’ data in cases that involve national security. NSLs have been around for decades, and do not require a judge’s permission, although they were limited in what they can ask for. But in 2001, the USA PATRIOT Act greatly expanded what info could be demanded by way of an NSL. The pace at which they were issued also increased – in fact several hundred thousand NSLs have been served since 2000.

The increase in the number and scope of NSLs alarmed many people because it seemed to indicate a major avoidance of basic due process. Judicial warrants exist in the first place so that there is some level of oversight before law enforcement can rifle through your property and records, whether it be physical or digital. As long as the requesting agency demonstrates legitimate probable cause, obtaining a warrant is usually neither difficult nor time-consuming. Having a legal expert sign off on law enforcement is a bedrock tradition of law that is at least one potential barrier to abuse or casual overuse of the government’s authority to invade your privacy.

As if ducking the warrant requirement isn’t enough, NSLs also contain a gag order that prevents companies from ever revealing, even in general terms, that they have received the request. As a result, not only is there no oversight of the issuance of NSLs, but no one can even know if the FBI is requesting information they aren’t allowed to seize.

Companies could fight back in court if they believed the FBI was making an arbitrary or overly broad request, but between receiving the rather menacing sounding letter from the government (with the threat of penalties for non-compliance) and the expense of pushing back, NSLs are seldom met with resistance (though there have been a few prominent cases where companies have successfully fought the gag order). Larger companies like Google and Yahoo receive a lot more NSLs, notes The Intercept, and have lawyers who can advise them not to turn over more user data than they have to. Smaller tech firms, however, are not so fortunate and could more easily be intimidated into giving up everything they are asked for.

This complete lack of accountability and transparency absolutely invites the casual overuse of NSLs – out of simple laziness or lack of discipline, not necessarily with any ill intent. As Kin Zetter points out in Wired, “An FBI agent investigating a national security case can send a self-issued NSL to a credit bureau, [internet service provider] or phone company with only the sign-off of the Special Agent in Charge of their office.” Sure enough, the FBI’s inspector general found in 2007 that a number of NSLs had been improperly issued.

Caught with Their Hand in the Cookie Jar

Some level of real oversight of National Security Letters was made possible when the Obama Administration ordered that NSL gag orders be lifted after their secrecy was no longer needed for an investigation. This year, Yahoo.com was allowed to publish several NSLs they had received. What these (redacted) letters revealed was that, in spite of warnings from the Department of Justice, the FBI had requested way more information from Yahoo than is allowed by law (which Yahoo did not turn over). The requested information was not just the name of the account holder, but their phone number, address, IP address, payment information and more.

As The Intercept notes, the FBI’s Director, James Comey, has been pushing hard this year to get full legal authorization for this massively broader use of NSLs. Given the improper use of NSLs that the FBI had already been caught doing in years past, the timing of Director Comey’s push to legally expand NSL authority begs the question of whether the FBI has been continuing to use them illegally all this time, and is only seeking legal permission now that they can’t keep companies silent anymore.

One of the attempts to grant the FBI this greater power was a Senator John Cornyn amendment to, of all things, Senator Mike Lee’s email privacy bill. Cornyn’s amendment would have allowed them to demand via NSL:

Name, physical address, email address, telephone number, instrument number, and other similar account identifying information.

Account number, login history, length of service (including start date), types of service, and means and sources of payment for service (including any card or bank account information).
Local and long distance toll billing records.

Internet Protocol (commonly known as ‘IP’) address or other network address, including any temporarily assigned IP or network address, communication addressing, routing, or transmission information, including any network address translation information (but excluding cell tower information), and session times and durations for an electronic communication.

Senator Mike Lee ended up having to pull his bill from consideration to prevent the 4th Amendment-wrecking Cornyn amendment from being added.

The second attempt to expand the reach of NSLs is part of the intelligence agencies funding bill. Both attempts would represent, according to Gabe Rottman of the Center for Democracy & Technology, a “massive expansion of the government’s ability to spy on our electronic communications.

What the FBI and intelligence agencies are really looking for, Rottman observes, is that “every time you interact with the internet, the record of that transaction is fair game for an NSL.”

As Senator Paul has mentioned frequently during the debates over the government’s surveillance authority, one of the early fathers of the American Revolution, James Otis, fought the British in court of Writs of Assistance, which were effectively warrants British troops could write for themselves without a judge that allowed them to barge into and search any colonists’ home they wanted to. The use of these writs was a major spark that led to the American Revolution, and were one reason that court issue of warrants for search and seizure of private property were so specifically included in the Constitution.

A simple, major step towards restoring proper due process while still allowing the FBI to acquire data to keep us safe is to echo Senator Rand Paul and require them to just “get a warrant”. Between providing court oversight of the NSL process and ending the permanent gag order on companies who receive the letters, Americans will at least have a much better chance of knowing when agencies like the FBI cut corners on our privacy and the constitutional due process of law.

This article originally appeared on Conservative Review.

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Free the People publishes opinion-based articles from contributing writers. The opinions and ideas expressed do not always reflect the opinions and ideas that Free the People endorses. We believe in free speech, and in providing a platform for open dialog. Feel free to leave a comment!

Josh Withrow

Josh Withrow is the former Director of Public Policy at Free the People. He transitioned from studying medieval history to modern policy, only to find nothing has changed.

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