Secret Text in Senate Bill Would Give FBI Warrantless Access to Email Records
Secret Text in Senate Bill Would Give FBI Warrantless
Access to Email Records
By Jenna McLaughlin May 26 2016, 12:31 p.m.
A PROVISION SNUCK INTO the still-secret text of the
Senate’s annual intelligence authorization would give the FBI the ability to
demand individuals’ email data and possibly web-surfing history from their
service providers without a warrant and in complete secrecy.
If passed, the change would expand the reach of the FBI’s
already highly controversial national security letters. The FBI is currently
allowed to get certain types of information with NSLs — most commonly,
information about the name, address, and call data associated with a phone
number or details about a bank account.
Since a 2008 Justice Department legal opinion, the FBI
has not been allowed to use NSLs to demand “electronic communication
transactional records,” such as email subject lines and other metadata, or URLs
visited.
The spy bill passed the Senate Intelligence Committee on
Tuesday, with the provision in it. The lone no vote came from Sen. Ron Wyden,
D-Ore., who wrote in a statement that one of the bill’s provisions “would allow
any FBI field office to demand email records without a court order, a major
expansion of federal surveillance powers.”
Wyden did not disclose exactly what the provision would
allow, but his spokesperson suggested it might go beyond email records to
things like web-surfing histories and other information about online behavior.
“Senator Wyden is concerned it could be read that way,” Keith Chu said.
It’s unclear how or when the provision was added,
although Sens. Richard Burr, R-N.C., — the committee’s chairman — and Tom
Cotton, R-Ark., have both offered bills in the past that would address what the
FBI calls a gap and privacy advocates consider a serious threat to civil
liberties.
“At this point, it should go without saying that the
information the FBI wants to include in the statue is extremely revealing —
URLs, for example, may reveal the content of a website that users have visited,
their location, and so on,” Andrew Crocker, staff attorney for the Electronic
Frontier Foundation, wrote in an email to The Intercept.
“And it’s particularly sneaky because this bill is
debated behind closed doors,” Robyn Greene, policy counsel at the Open
Technology Institute, said in an interview.
In February, FBI Director James Comey testified during a
Senate Intelligence Committee hearing on worldwide threats that the FBI’s
inability to get email records with NSLs was a “typo” — and that fixing it was
one of the FBI’s top legislative priorities.
Greene warned at the time: “Unless we push back against
Comey now, before you know it, the long slow push for an [electronic
communication transactional records] fix may just be unstoppable.”
The FBI used to think that it was, in fact, allowed to
get email records with NSLs, and did so routinely until the Justice Department
under George W. Bush told the bureau that it had interpreted its powers overly
broadly.
Ever since, the FBI has tried to get that power and has
been rejected, including during negotiations over the USA Freedom Act.
The FBI’s power to issue NSLs is actually derived from
the Electronic Communications Privacy Act — a 1986 law that Congress is
currently working to update to incorporate more protections for electronic
communications — not fewer. The House unanimously passed the Email Privacy Act
in late April, while the Senate is due to vote on its version this week.
Sen. John Cornyn, R-Texas, is expected to offer an
amendment that would mirror the provision in the intelligence bill.
Privacy advocates warn that adding it to the broadly
supported reform effort would backfire.
“If [the provision] is added to ECPA, it’ll kill the
bill,” Gabe Rottman, deputy director of the Center for Democracy and
Technology’s freedom, security, and technology project, wrote in an email to
The Intercept. “If it passes independently, it’ll create a gaping loophole.
Either way, it’s a big problem and a massive expansion of government
surveillance authority.”
NSLs have a particularly controversial history. In 2008,
Justice Department Inspector General Glenn Fine blasted the FBI for using NSLs
supported by weak evidence and documentation to collect information on
Americans, some of which “implicated the target’s First Amendment rights.”
“NSLs have a sordid history. They’ve been abused in a
number of ways, including … targeting of journalists and … use to collect an
essentially unbounded amount of information,” Crocker wrote.
One thing that makes them particularly easy to abuse is that
recipients of NSLs are subject to a gag order that forbids them from revealing
the letters’ existence to anyone, much less the public.
FBI Director James Comey on Capitol Hill in February
2016.
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