FBI attempts to pass off major power grab as correcting a legal ‘typo’

The FBI is pushing Congress to amend the law governing the use of secretive National Security Letters (NSLs). A recent attempt to pass an amendment through the Senate that would hugely expand the FBI’s surveillance capacities stalled at the last minute, after Senate Majority Leader Mitch McConnell withdrew his support.

Despite this setback, FBI Director James Comey, who has characterised the amendment as simply correcting a ‘typo’ in existing legislation, is unlikely to let the matter drop. It is therefore highly likely that this terrible sleight of hand will soon come up in front of Congress again for a another vote.

NSLs and the FBI’s problem

Once upon a time, the FBI (and the NSA) had a cosy relationship with all the major US tech companies. This included the likes of Microsoft, Google, Apple, Facebook, and so-on. If the FBI wanted information from one of its tech company pals, it would request that the US federal government issue it a National Security Letter (NSL).

These handy administrative subpoenas give government agencies the right to demand that technology companies hand over information on their customers, and almost always come with an equally handy with ‘gag order’ attached. These prevent companies from warning their users that the government is interested in them.

Not that this was really necessary, because hey, we’re all friends, right? And if we ask tech companies for far more information than an NSL legally permits us to? Well, what is a little metadata between amigos? Everything was swell, and everyone was happy (except ordinary US citizens, but they were blissfully unaware about was going on behind closed data centres).

And then Edward Snowden spilled the beans. Public trust in the tech companies, whose services we have incorporated into our daily lives, plummeted. Not only were Snowden’s revelations deeply embarrassing for the tech companies, but revenues plummeted as customers began to self-censor and otherwise limit the personal information they shared with online services.

The tech giants have ever since been trying to claw back public confidence in their services (the recent battle between Apple and the FBI over decrypting a San Bernadino shooter’s phone is a particularly high-profile example of this).

Importantly, tech companies stopped being so cooperative with the FBI. By to the letter of the law, the amount of information that the FBI can demand using an NSL is very limited. According to the Electronic Communications Privacy Act, the FBI can use it to demand the name, address, length of service, and local and long distance toll billing records of a customer (the legislation was originally aimed primary at telephone communications).

The law does allow access to ‘electronic communication transactional records’ (ECTRs), but rather unhelpfully does not say what these are. Unsurprisingly, the FBI has always viewed the law’s provisions ‘as more of a loose guideline than an exhaustive list’. Equally unsurprisingly now that tech companies are insisting on sticking to the letter of the law, the FBI is seeking an amendment to (as it sees it) clarify the matter.

This would formalise the FBI’s loose interpretation of the legislation, and aims to correct what Director James Comey has characterised as a ‘typo’ that subverts the Act’s original (implicit) intention. Under the amendment that Comey and the FBI have been pushing for, the FBI would be permitted to demand access to citizens’ web browsing history, location data, and some email data.

The problem with this is interpretation, though, is that it has already been directly contradicted in 2008 by the Justice Department’s Office of Legal Counsel. This definitively ruled that FBI was not authorised to demand such information without a valid court order!

By pushing for a change in the law, Comey is not simply seeking a minor administrative clarification (which is how he portrays it), but is in fact arguing for a major expansion in FBI surveillance powers. By presenting the issue in the way that he has, Comey is being highly duplicitous.

Use of National Security Letters

NSLs are basically authorised by a senior government (including FBI) official to field agents. The fact the NSLs require no judicial oversight has always worried human rights campaigners. As the Electronic Frontier Foundation notes,

NSLs are inherently dangerous to civil liberties because their use is rarely subject to judicial review.

Given that NSLs are usually accompanied by secretive gag orders, it if difficult to know exactly how many have need issued. But known statistics suggest that many thousands have been authorised since 2001.

The Fourth Amendment

It is widely argued (for example in the Washington Post) that the changes wanted by the FBI are in direct violation of the US constitution’s Fourth Amendment. Originally adopted in response to British abuses of the Writ of assistance (a sort of general purpose warrant), the Fourth Amendment was specifically designed to reign-in exactly the kind of wide interpretation of laws that the FBI is now pushing for,

The Fourth Amendment was expressly written to protect our individual right to privacy from the voracious and insatiable appetite of government to assault it. It was also written to ensure that government can seek evidence against bad guys, but it was meant to force the government to target them based on real evidence, not to let it sweep them up in a suspicionless net along with the innocent.

To this end, the Fourth Amendment prohibits unreasonable searches and seizures by requiring that such can only be performed after obtaining a warrant from a judge, and that this must be supported by probable cause. The FBI, of course, has little patience for such niceties,

Since the government obviously does not take its obligation to uphold the Constitution seriously, why bother with requiring one FBI agent to authorize another? Why not let any FBI agent search wherever he or she wants, break down any door, seize any records and invade anyone’s privacy, lest compliance with the Constitution be a pain in the neck?

So what now?

Fortunately, after widespread dismay from the tech industry, the latest attempt to push through the legislation has failed. It failed, however, on a single vote, and no observer believes the issue will now simply go away, as it is simply too important to the FBI.

Douglas Crawford, editor at BestVPN.com

Image source: Shutterstock/Gil C