Jul 30

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

big-brother-obama

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.

Privacy concerns

The use of the national security letters to obtain personal data on Americans has prompted concern. The Justice Department issued 192,500 national security letters from 2003 to 2006, according to a 2008 inspector general report, which did not indicate how many were demands for Internet records. A 2007 IG report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request. In two cases, the report found, agents used NSLs to request content information “not permitted by the [surveillance] statute.”

One issue with both the proposal and the current law is that the phrase “electronic communication transactional records” is not defined anywhere in statute. “Our biggest concern 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,” said Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, which has sued AT&T for assisting the Bush administration’s warrantless surveillance program.

He said he does not object to the government obtaining access to electronic records, provided it has a judge’s approval.

Senior administration officials said the proposal was prompted by a desire to overcome concerns and resistance from Internet and other companies that the existing statute did not allow them to provide such data without a court-approved order. “The statute as written causes confusion and the potential for unnecessary litigation,” Justice Department spokesman Dean Boyd said. “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.”

The administration has asked Congress to amend the statute, the Electronic Communications Privacy Act, in the fiscal year that begins in October.

Administration officials noted that the act specifies in one clause that Internet and other companies have a duty to provide electronic communication transactional records to the FBI in response to a national security letter.

But the next clause specifies only four categories of basic subscriber data that the FBI may seek: name, address, length of service and toll billing records. There is no reference to electronic communication transactional records.

Same as phone records?

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.

Obtaining such records with an NSL, as opposed to a court order, “allows us to intercede in plots earlier than we would if our hands were tied and we were unable to get this data in a way that was quick and efficient,” the senior administration official said.

But the value of such data is the reason a court should approve its disclosure, said Greg Nojeim, senior counsel at the Center for Democracy and Technology. “It’s much more sensitive than the other information, like name, address and telephone number, that the FBI gets with national security letters,” he said. “It shows associational information protected by the First Amendment and is much less public than things like where you live.”

A Nov. 5, 2008, opinion from the Justice Department’s Office of Legal Counsel, whose opinions are binding on the executive branch, made clear that the four categories of basic subscriber information the FBI may obtain with an NSL were “exhaustive.”

This opinion, said Sussmann, the former Clinton administration lawyer, caused many companies to reevaluate the scope of what could be provided in response to an NSL. “The OLC opinion removed the ambiguity,” he said. “Providers now are limited to the four corners of what the opinion says they can give out. Those who give more do so at their own risk.”

Marc Zwillinger, an attorney for Internet companies, said some providers are not giving the FBI more than the four categories specified. He added that with the rise of social networking, the government’s move could open a significant amount of Internet activity to government surveillance without judicial authorization. “A Facebook friend request — is that like a phone call or an e-mail? Is that something they would sweep in under an NSL? They certainly aren’t getting that now.”

By Ellen Nakashima
Washington Post Staff Writer
Thursday, July 29, 2010; A01

Source: The Washington Post

Change we can believe in:

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- And Now ObamaService? H.R. 5741: Universal National Service Act

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- GLOBE MAGAZINE: OBAMA BORN IN AFRICA! WHY HIS PRESIDENCY IS ILLEGAL

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- The No.1 Trend Forecaster Gerald Celente: Financial Mafia Controlling US and Wall Street

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- Former Dean of Harvard College Harry R. Lewis: Larry Summers, Robert Rubin: Will The Harvard Shadow Elite Bankrupt The University And The Country?

- Experts: Dollar Crisis Looms if US Doesn’t Curb Debt

- Marc Faber on Coming Sovereign Debt Crisis: Next Countries to Default are the US, Japan and the ‘PIIGS’

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- Fitch: US Must Cut Spending To Save AAA Rating; US December Deficit Nearly Doubles

- The Coming Sovereign Debt Crisis

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- PIMCO’S Bill Gross: ‘Let’s Get Fisical’ (… or why the US will not make it.)

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- The No.1 Trend Forecaster Gerald Celente: The Terror And The Crash of 2010

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Traitor in chief:
Treason: Obama gives INTERPOL immunity from the Constitution (Amending Executive Order 12425)

- Peter Schiff on Obamacare, Freddie Mac & Fannie Mae: The Nightmare Before Christmas

- Obama administration backs Fannie Mae and Freddie Mac no matter how big their losses may be

- Rep. Dennis Kucinich: US War Presidents ignore Congress and Constitution

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- Obamacare: Change Nobody Believes In

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Hypocrite in Chief (Funny):
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- Fascism in America: By Political Definition The US Is Now Fascist, Not A Constitutional Republic

- John Williams of Shadowstats: Prepare For The Hyperinflationary Great Depression

Liar in Chief (NOT funny!!!):
Barack Obama Lies 7 Times In Under 2 Minutes!!!!!

- Robert Fisk, The Independent’s award-winning Middle East correspondent: Obama is a Disaster, Worse than Bush

- Rep. Dennis Kucinich: ‘These Wars Are Corrupting The Heart Of Our Nation!’

- Famous Investor Jim Rogers: Incompetence In Washington, Abolish The Fed And The Treasury

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- MSNBC Rachel Maddow: War President Obama

- Ron Paul: ‘Obama is Actually Preparing Us For Perpetual War’

Afghanistan Surge to Cost At Least $40 Billion, That Is $1.333.333 For One US Soldier Per Year

- Rep. Brad Sherman: Geithner rejects $1 trillion limit on bailout power (Section 1204 is unlimited in dollar amount!)

Liar in Chief (Over 300 soldiers died in 2009 because of this lie!!!):
Obama: ‘I will promise you this, that if we have not gotten our troops out by the time I am President, it is the first thing I will do. I will get our troops home. We will bring an end to this war. You can take that to the bank.’

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2 Responses to “Obama Administration Proposal To Give FBI Access To Your Internet History Without Court Order”

  1. Rwolf Says:

    The FBI recently asked for the power to obtain without warrants, Citizens’ “electronic communication transactional records” including email addresses Americans used to send communications. While there is much press and debate concerning the FBI’s request for warrant-less Internet surveillance of Citizens’ Internet Activity, one obvious point has been overlooked: If the FBI gets this warrant-less power: every time someone receives an email from some idiot that mentioned anything that might allude to anything illegal, the receiver of the email will have to notify police to avoid the potential of federal conspiracy charges.

    The FBI’s request for warrant-less Internet surveillance can’t be viewed separately: if pending bills in Congress pass, the FBI could use warrant-less Internet surveillance of Internet Activity, including sent or received emails to arrest and indefinitely detain Americans on (mere suspicion) not evidence. Information the FBI gleans from warrant-less searches of email headers—could be used by U.S. Government to target anyone for arrest without evidence. The FBI would need only subpoena the contents of someone’s email having circumvented the Fourth Amendment against warrant-less searches.

    See McCain’s 12-page Senate bill S.3081 The “Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 that would allow arrest and indefinite detention of Americans in Military Custody on mere suspicion; without evidence, probable cause or the right to an attorney. See:
    assets.theatlantic.com/static/mt/assets/politics/ARM10090.pdf

    The recent Washington Post Report (Secret America) did not mention in the U.S., government-private contractors and their operatives work so close with U.S. law enforcement, exchanging information to arrest Americans and or share in the forfeiture of their assets, they appear to have merged with police. Similarly in 1933 Hitler merged his private police the Gestapo with German national security. Before the Gestapo was consolidated with the German Government, the Gestapo arrested Citizens and confiscated private property with no legal authority. However U.S. Government has already granted that power to private U.S. contractors. In 1939 all German Police agencies including the Gestapo were put under the control of the “Reich Main Security Office” the equivalent of U.S. Homeland Security.

    Obama gave a speech in May 2010 that asked Congress to pass legislation to give the President power, to detain any person in the U.S. that government deems a “combatant” or likely to engage in a violent act in the future. President Obama wants the power to incarcerate U.S. Citizens not on evidence, but for what they might do. Obama wants the power to override the U.S. Constitution, to detain indefinitely any American based on conjecture her or she might do something violent in the future. If Obama’s proposal to detain Americans without probable cause is approved, and the FBI is granted warrant-less searches of the Internet, it is foreseeable Government could use anyone’s Internet activity including emails to claim an individual or lawful organization might do something violent in the future to order their indefinite detainment. See: Obama Sound-Video asking for power to detain people without probable cause at:
    http://www.brasschecktv.com/page/630.html

    If FBI warrant-less Internet Spying is approved, it is problematic the FBI will share its spying with law enforcement, government contractors and private individuals that have security clearances to facilitate the arrest and forfeiture of Americans’ property—-to keep part of the bounty. Police too easily can take an innocent person’s hastily written email, Internet fax, phone call or web activity out of context to allege a crime or violation was committed to cause an arrest or confiscation of someone’s property. There are over 200 U.S. laws and violations mentioned in the Civil Asset Forfeiture Reform Act of 2000 and the Patriot Act that can subject property to civil asset forfeiture. Under federal civil asset forfeiture laws, a person or business need not be charged with a crime for government to forfeit their property.

    Rep. Henry Hyde’s bill HR 1658 passed, the “Civil Asset Forfeiture Reform Act of 2000” and effectively eliminated the “statue of limitations” for Government Civil Asset Forfeiture. The statute now runs five years from when police allege they “learned” that an asset became subject to forfeiture. With such a weak statute of limitations and the low standard of civil proof needed, little more that hearsay for government to forfeit property “A preponderance of Evidence”, it is problematic law enforcement and private government contractors will want access to FBI, and other government Internet surveillance, including wiretaps perhaps illegal to arrest Americans, to seize their homes, assets and businesses under Title 18USC and other laws.

    Of obvious concern, what happens to fair justice in America if police and government contractors become dependent on “Asset Forfeiture” to pay their salaries and operating costs?

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