Secret Provision of Senate Intel Bill Authorizes Warrantless FBI Internet Surveillance

The Intercept raises alarms about a provision slipped into the Senate’s annual intelligence authorization bill that would “give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.”

At issue is the FBI’s ability to obtain such information with a mere National Security Letter (NSL), rather than a warrant from a Foreign Intelligence Surveillance Act (FISA) court. Actually, as The Intercept points out, the bill would effectively restore authority the FBI lost under the George W. Bush Administration, when the more stringent warrant requirements were imposed.  

Privacy advocates have long argued that National Security Letters lack the degree of oversight associated with a warrant, and they’re too easy for the FBI to issue. (Some of those advocates aren’t much impressed by the level of oversight provided by the secretive FISA courts, either.)

“NSLs are a great tool for the government to abuse the 4th Amendment. Recipients can’t talk about them, and no court has to review/approve them. Yet they certainly look scary to most recipients who don’t dare fight an NSL,” notes TechDirt.

“National Security Letters are highly controversial tools for gathering information on suspects in criminal and terror investigations,” On the Wire explains. “They have been used for years to demand telephone metadata and other sensitive records, but the FBI currently is not allowed to use them to get email or Internet history records for a target. The court that issues NSLs rarely, if ever, refuses a request from the government for such orders. The letters themselves are extremely powerful, and they typically include a provision that prevents the target from even disclosing receipt of the letter.”

The Intercept notes that NSLs were the instrument through which the Obama Justice Department spied on journalists – briefly a major controversy a few years ago, although the media’s guild mentality soon yielded to its enduring love of the Obama Administration.

There are concerns the new provisions in the Senate bill would empower the FBI to go after email, and even Internet browsing history, with National Security Letters. The lone “no” vote from the Senate Select Committee on Intelligence this week, Senator Ron Wyden (D-OR), was especially concerned with such possibilities, although he was constrained from disclosing precisely what the bill would permit.

“This bill takes a hatchet to important protections for Americans’ liberty. This bill would mean more government surveillance of Americans, less due process and less independent oversight of U.S. intelligence agencies. Worse, neither the intelligence agencies, nor the bill’s sponsors have shown any evidence that these changes would do anything to make Americans more secure,” said Wyden.

The FBI has argued it was a mistake to limit its use of NSLs – fairly literally a “mistake,” likened to a typographical error in a Justice Department memo. Also, it is argued that since so much criminal and terrorist activity has shifted to email, it makes little sense to leave law enforcement’s most effective surveillance powers limited to the form of communication suspects don’t use any more, telephones.

VentureBeat reports that a full Senate vote on the bill has been postponed, to give lawmakers more time to consider its provisions.


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