The White House has asked
Congress to make it possible for the FBI to demand that Internet
service providers turn over customers' records in cases involving
terrorism or other intelligence issues without first obtaining a court
The Electronic Communications Privacy Act currently states
that companies are required to provide basic subscriber data to the FBI,
but lists only the four kinds of information that might be found on
phone bills -- customer's name, address, length of service, and toll
In 2008, the Justice Department ruled that those
four categories were "exhaustive," making some companies reluctant to
provide any additional information. The proposed amendment would add
the phrase "electronic communication transactional records" to the list
in order to include the recipients of emails and when they were sent and
received -- though not their content. It might also cover web browsing
The administration is describing the proposal as intended to prevent "confusion" on the part of service providers, but the Washington Post
notes that "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."
According to the Post,
critics of the change say it would "greatly expand the amount and type
of personal data the government can obtain without a court order" and
represents "another example of an administration retreating from
campaign pledges to enhance civil liberties in relation to national
"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," former Clinton administration Justice Department
lawyer Michael Sussman told the Post.
The administration proposal also appears to fly in the face of recent attempts by tech companies like Microsoft to obtain
changes to the Electronic Communications Privacy Act that would
provide greater security and privacy for so-called "cloud computing," in
which data is stored online.
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A Google lobbyist told
Congress last week, "ECPA is difficult to explain to our users, and
it's difficult for us to apply. The confusion and the costs associated
with it really for us is undermining the growth of our services and the
growth of the cloud."
An expert with the Brookings Institution has suggested
that "Congress should update the Electronic Communications Privacy Act
to change the process by which law enforcement agents obtain electronic
information. Instead of using a prosecutor's subpoena, legislation
should require a 'probable cause' search warrant that is approved by a
judge. This would provide greater safeguards in terms of online
content, pictures, geolocation data, and e-mails."
Making FBI requests for such data easier rather than more difficult would weaken those safeguards -- and the Post
notes that national security letters have been abused in the past.
There are also questions as to how broadly the new language might be
Kevin Bankston of the Electronic Frontier Foundation, for example, told the Post
that because the phrase "electronic communication transactional
records" is not defined in the statute, "an expanded NSL power might be
used to obtain Internet search queries and Web histories detailing every
Web site visited and every file downloaded."
Marc Zwillinger even speculated that it might give the government access
to social networking activity. "A Facebook friend request -- is that
like a phone call or an e-mail?" he asked. "Is that something they
would sweep in under an NSL? They certainly aren't getting that now."
Greg Nojeim of the Center for Democracy and Technology,emphasized that
the email information is "much more sensitive than the other
information, like name, address and telephone number, that the FBI gets
with national security letters. It shows associational information
protected by the First Amendment and is much less public than things
like where you live."