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They're calling it a tweak -- a "technical clarification" -- but make no mistake: The Obama administration and the FBI's demand that Congress approve a huge expansion of their authority to obtain the sensitive Internet records of American citizens without a judge's approval is a brazen attack on civil liberties.
At issue is the scope of the Federal Bureau of Investigation's power to obtain information from "electronic communications service providers" using national security letters (NLS), which compel private companies to allow government access to communication records without a court order. The administration wants to add four words -- "electronic communication transactional records" -- to Section 2709 of the Electronic Communications Privacy Act, which spells out the types of communications data that can be obtained with an NSL. Yet those four little words would make a huge difference, potentially allowing investigators to draw detailed road maps of the online activity of citizens not even suspected of any connection to terrorism.
In their original form, NSLs were extremely narrow tools designed to allow federal investigators to obtain very basic telephone records (name, address, length of service, calls placed and received) that could be linked by "specific and articulable facts" to persons suspected of being terrorists or foreign spies. In 1993, Congress amended the statute to clarify that NSLs could be issued to electronic information service providers as well as traditional phone companies. But wary of the potential for misuse of what the House Judiciary Committee called this "extraordinary device" in a world of rapidly changing technology, Congress placed tight limits on the types of records that could be obtained, making clear that "new applications" of NSLs would be "disfavored."
The administration is presenting this change as a mere clarification meant to resolve legal ambiguity -- as though Congress had simply misplaced a semicolon. Yet the Bush-era Office of Legal Counsel already rejected that argument in a 2008 opinion, concluding that the FBI had for years misread the "straightforward" language of the statute. And clarity is certainly needed, as it is hard to know just what falls under "categories of information parallel to subscriber information and toll billing records." The standard reference for lawyers in this sphere, David Kris' National Security Investigations and Prosecutions, simply notes that the scope of NSLs as applied to online activity is unclear. Even the Justice Department seems uncertain. In a 2001 response to congressional inquiries about the effect of the newly enacted PATRIOT Act, the Department Of Justice told Congress that "reasonable minds may differ" as to where the line should be drawn between addressing information equivalent to toll billing records and "content" requiring a search warrant.
