WASHINGTON — The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
The administration wants to add four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail, the times and dates e-mail was sent and received and possibly a user’s browser history. It does not include, as the lawyers hasten to point out, the content of e-mail or other Internet communication.
Some see excess
But 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. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.
Many Internet service providers have resisted the government’s demands to turn over electronic records, arguing that surveillance law as written does not allow them to do so, industry lawyers say. One senior administration government official, who would discuss the proposed change only on condition of anonymity, countered that “most” Internet or e-mail providers do turn over such data.
To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is “incredibly bold, given the amount of electronic data the government is already getting,” said Michelle Richardson, American Civil Liberties Union legislative counsel.
The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order.
“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,” said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who represents Internet and other firms.
Vagueness stirs worry
One issue with the proposal and the current law is that the phrase “electronic communication transactional records” is not defined anywhere in statute.
“Our biggest concern is that an expanded NSL power might be used to obtain Internet- search queries and Web histories detailing every website visited, every file downloaded,” said Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, which has sued major phone companies for complying with the Bush administration’s warrantless-surveillance program.
He said he does not object to the government obtaining access to electronic records, provided it has a judge’s approval.
