FBI Looks To Expand Draconian Powers With Warrantless Retrieval Of Internet History, Phone Records

The FBI is determined to gain access to any and all electronic information from targeted devices whenever it wants, and by any means necessary (as we’ve seen in the drawn-out and very public battle with Apple over encryption). However, many feel that the FBI is really overstepping its authority with an expansion of the National Security Letter (NSL) statute.

An amendment to the Electronic Communications Privacy Act (ECPA), which is sponsored by Sen. John Cornyn (R-TX), is set to go before the Judiciary Committee on Thursday, and would expand the FBI’s warrantless vacuuming of user data. Under the proposed amendment, the FBI could request internet browsing history (exact URLs that internet users visited), email metadata, location information, and the “exact date and time a person signs in or out of a particular online account” according to the Electronic Frontier Foundation (EFF). These provisions weren’t included with existing NSLs.

FBI Director James Comey champions the amendment, saying that it merely fixes a “typo” in the original legislation drafted by Congress regarding NSLs. In other words, the FBI thinks that it’s already entitled to capture additional details on internet users, and this bill is in essence an autocorrect formality, so to speak. When addressing the Senate Intelligence Committee in February, Comey commented that the typo has hampered his organization’s ability to conduct operations, and “affects our work in a very, very big and practical way.”

James Comey
FBI Director James Comey and President Obama

The FBI states that it would only use these powers in instances of terrorism or when national security is at stake, but privacy groups are understandably leery of taking the FBI’s comments at face value.

“This expansion of the NSL statute has been characterized by some government officials as merely fixing a ‘typo’ in the law,” wrote a broad coalition organizations and companies (including the EFF, Facebook, Google and Yahoo) urging the Senate to oppose the amendment. “In reality, however, it would dramatically expand the ability of the FBI to get sensitive information about users’ online activities without court oversight.

“This information could reveal details about a person’s political affiliation, medical conditions, religion, substance abuse history, sexual orientation, and, in spite of the exclusion of cell tower information in the Cornyn amendment, even his or her movements throughout the day.”

Cornyn, who is in lockstep with the Comey and the FBI, says that the existing law is “needlessly hamstringing our counterintelligence and counterterrorism efforts.”

The EFF, of course, strenuously disagrees, writing, “Far from a simple ‘fix’, the Senate proposals to include of a wide variety of electronic records under the NSLs represent a very worrying expansion of the FBI's surveillance authority.

“National Security Letters are a dangerous and unconstitutional power as is.”