We Want to Clarify That Our Authority Is Vague


The Obama administration wants Congress to amend the Electronic Communications Privacy Act so that the FBI can obtain "electronic communication transactional records" without a court order, simply by issuing a "national security letter." It's not exactly clear what "electronic communication transactional records" are, since the phrase is not defined in the statute. But according to The Washington Post, "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." The admistration's lawyers emphasize that the FBI would still need a court order to obtain the content of messages, and they argue that the information involved is equivalent to the phone records that already can be obtained with an NSL, which show the dates and times of calls as well as the numbers dialed.

That's not really true, however. For one thing, an email address is person-specific, while a phone number does not necessarily tell you who was on the other end of the call. Furthermore, phone records do not contain anything like a Web browsing history, which can be highly revealing. "Our biggest concern," Electronic Frontier Foundation attorney Kevin Bankston tells the Post, "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." Michael Sussman, a Justice Department attorney in the Clinton administration, says "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." An attorney who represents Internet companies wonders whether a Facebook friend request counts as a "transactional record."

A Justice Department spokesman insists "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." To the contrary, the statute's requirements were already clarified by a 2008 opinion from the Justice Department's Office of Legal Counsel, which said the information that can be obtained from a phone company or ISP without a court order is limited to a customer's name, address, length of service, and toll billing records. What the Obama administration wants is not a "clarification"; it is a government-friendly fuzzification.

The New York Times sees a broken promise, noting that a 2008 Obama position paper (PDF) declared:

There is no reason we cannot fight terrorism while maintaining our civil liberties….As president, Barack Obama would revisit the Patriot Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches, and the use of the material witness provision.

But since the FBI is so punctilious about obeying the current NSL rules, why worry?

Addendum: I just noticed that the same position paper promised to "eliminate warrantless wiretaps." Obama not only did not eliminate them; as a senator he voted to amend the Foreign Intelligence Surveillance Act so that it explictly authorized them, while shielding companies that helped the Bush administration break the law from liability.

[Thanks to Tricky Vic for the tip.]