photo by Dineshraj Goomany
What’s on your summer reading list? The FBI wants to know.
The agency that couldn’t stop the Boston Marathon bombers, even after Russian intelligence flagged the chief perpetrator for special attention, wants to be able to go to your internet service provider and demand to know what websites you have visited. Oh, and it wants to do so without asking a judge for a warrant. And by the way, in most cases your ISP would be barred from telling you that the FBI has been asking around.
To top it off, the agency says this new grant of authority wouldn’t be a new grant at all – it would merely be a correction of a “scrivener’s error.” In other words, Congress intended all along to grant the FBI that authority, at least according to the FBI.
This would be the same Congress that explicitly declined to correct this so-called error in the Electronic Communications Privacy Act when the law was last reauthorized six years ago. For what it’s worth, the Obama administration, a wholly-owned subsidiary of the intelligence community, dropped that effort when it became clear Congress was not going to take on privacy advocates who objected. At the time, Obama had a re-election to win. But now the administration is evidently willing to make another attempt.
The supposed error omits “electronic communication transaction records” from the list of items the FBI can demand from companies without a judge’s say-so. The administrative subpoena, called a national security letter or NSL, can currently secure an internet customer’s name, address, length of service and telephone bill records. The FBI is now pressing to expand this list to cover individuals’ internet protocol (IP) addresses, browsing histories and a variety of other electronic metadata.
FBI Director James Comey says this power is absolutely critical for counterterrorism operations and that it will only be used in terror and espionage cases. We will all doubtless feel safer when NSLs ensure those FSB and People’s Liberation Army spies working for Russia and China, respectively, can be caught when they go back to their employer websites to check on the latest news from human resources.
A variety of major tech companies and privacy advocates publicly oppose what the FBI is trying to characterize as a matter of correcting a typo. Many of these organizations, including the American Civil Liberties Union and the Electronic Frontier Foundation, threatened to withdraw previously promised support for an upcoming ECPA reform bill if the FBI got its way in expanding NSL authority.
Americans have a First Amendment right to read anything we want. If I want to look at an Islamic State propaganda site, I am entitled to do so – and the fact that I do, on its own, doesn’t tell anyone anything about my intentions.
Now, if I systematically investigate six web pages on bomb-making instructions, we certainly should hope that I would come to the FBI’s attention while it and other agencies monitor traffic to such sites. I hope they are cross-referencing such traffic to find the IP address from which it emanates. It ought to be no problem to go before a judge and get an order requiring an ISP to identify the customer to whom those addresses belong. This is pretty much the way other criminal activity, like child pornography, is investigated. And nobody has a problem with it.
But as always with law enforcement demands, and especially demands from Comey and his cronies, this latest request is just a foot-in-the-door maneuver. Terrorists now, drug-runners and child pornographers next, then tax evaders, insider traders and anyone else who gets the attention of the law enforcement agencies. But since these are broad-based investigative tools, and since many investigations don’t ultimately result in criminal charges, it amounts to a demand to eventually know what website anyone, anywhere, may have visited. All in secret, because, well, the FBI just does not have the time to keep going before judges to report on what it’s doing.
We all have too much on our reading lists to allow for that.