Federal law, codified in 18 USC § 2511, prohibits the interception of electronic communications under most circumstances without explicit legal authorization — like a warrant. But CNet's Declan McCullagh, working from documents provided by the Electronic Privacy Information Center, reports that the Obama administration is promising telecommunications companies that it won't enforce the privacy protections of the law if those companies will just play nice and vacuum up all that enticing data for the folks in Washington, D.C.
Senior Obama administration officials have secretly authorized the interception of communications carried on portions of networks operated by AT&T and other Internet service providers, a practice that might otherwise be illegal under federal wiretapping laws.
The secret legal authorization from the Justice Department originally applied to a cybersecurity pilot project in which the military monitored defense contractors' Internet links. Since then, however, the program has been expanded by President Obama to cover all critical infrastructure sectors including energy, healthcare, and finance starting June 12. …
The Justice Department agreed to grant legal immunity to the participating network providers in the form of what participants in the confidential discussions refer to as "2511 letters," a reference to the Wiretap Act codified at 18 USC 2511 in the federal statute books.
The Wiretap Act limits the ability of Internet providers to eavesdrop on network traffic except when monitoring is a "necessary incident" to providing the service or it takes place with a user's "lawful consent." An industry representative told CNET the 2511 letters provided legal immunity to the providers by agreeing not to prosecute for criminal violations of the Wiretap Act. It's not clear how many 2511 letters were issued by the Justice Department.
The law does allow short-cuts by the Attorney General and even by the "principal prosecuting attorney of any State or subdivision thereof," but only if a very specifically defined "emergency situation" exists. Instead of trying to find a little more elasticity in that phrase than the courts might allow, EPIC suggests that the snooping program is instead drawing off an Obama administration executive order and an earlier Bush administration presidential directive. That's right — unilateral decrees.
The documents concern a collaboration between the Defense Department, the Department of Homeland Security, and private companies to allow government monitoring of private Internet networks. Though the program initially only applied to defense contractors, an Executive Order issued by the Obama administration earlier this year expanded it to include other "critical infrastructure" industries. The documents obtained by EPIC also cited NSPD 54 as one source of authority for the program. NSPD 54 is a presidential directive issued under President Bush that EPIC is pursuing in separate FOIA litigation.
The looming, much-criticized Cyber Intelligence Sharing and Protection Act (CISPA) is expected to legalize all this snooping and sharing of private information, but it's not yet law. So the Obama administration is apparently just … pretending that it is.