Federal law usually prohibits the interception of electronic communications without explicit legal authorization, such as a warrant. But government documents obtained by the Electronic Privacy Information Center (EPIC) reveal that Barack Obama’s administration is promising telecommunications companies that it won’t enforce the privacy protections of the law if those companies will gather up personal data and turn it over to the federal government.
According to the documents, which were acquired via a Freedom of Information Act request, administration officials have secretly authorized the interception of communications carried on networks operated by Internet service providers (ISPs), including AT&T. While these interceptions are normally illegal under the Wiretap Act, the Justice Department issues “2511 letters”—so named because the Wiretap Act is codified at 18 USC 2511 in the federal statute books—granting legal immunity to the ISPs.
The legal basis for the 2511 letters is a little unclear. The law allows legal short cuts for wiretapping, but only in case of a very specifically defined “emergency situation.” Instead of relying on that short cut, EPIC suggests, the domestic spying program draws on an Obama-era executive order and an earlier directive from President George W. Bush, essentially letting presidents unilaterally interpret around the privacy protections of the law.
The controversial Cyber Intelligence Sharing and Protection Act would have legalized the spying program, but it failed in the Senate. That leaves the federal government deputizing private companies to snoop on legally protected private communications through the dubious workaround of promising to ignore the law.