The White House is seeking to change wording of the Electronic Communications Privacy Act
(ECPA), giving more power to the FBI in requesting Internet service providers turn over individual customers’ activities it considers related to terrorism or intelligence investigations.
At issue is the addition of a mere four words -- “electronic communication transactional records” -- added to a a list the law states the FBI can demand without court order. According to a report in the Washington Post
, government lawyers say the revised list of information in this category would include addresses to which Internet users send their emails; dates and times the messages were sent and received; and possible browser history of the users.
The lawyers are quick to add the list does not include “content” of emails or such other Internet communication.
The administration claims the move is designed to prevent “confusion” on the part of service providers, but the 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.”
Stewart Baker, a former Bush administration Homeland Security official, states the new proposal will expand the FBI’s power. "It'll be faster and easier to get the data," said Baker, currently practicing 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."
Some service providers have resisted government demands to turn over electronic data, arguing such a move in relation to current surveillance law is not legal.
Critics of the proposal say it will greatly expand the government’s role in obtaining amounts and types of personal information obtainable without court order, according to the Post.
Michael Sussman, a former Clinton administration Justice Department lawyer, told the Post: "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.”
Senior administration officials claim the proposal is part of a desire to clarify concerns from Internet and other companies that the statute as currently written does not allow the release of data the government seeks to obtain without a court order.
"The statute as written causes confusion and the potential for unnecessary litigation," Justice Department spokesman Dean Boyd said in the Post report. "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."
From 2003 to 2006, the Justice Department issued 192,500 NSL’s, according to an inspector general’s 2008 report. That report did not indicate how many were for Internet records. In 2007, an “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’,” the Post notes.
Marc Zwillinger is an attorney for Internet companies and notes some providers do not give the FBI more than the four categories specified. However, with the increased use of social networking sites, the White House request may allow a significant volume of Internet activity available to government surveillance without judicial approval. "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."
The administration is asking Congress to amend the ECPA in the fiscal year beginning in October.