FBI's push to clarify electronic authority raises privacy concerns

Sen. Patrick J. Leahy, chairman of the Judiciary Committee, said the Justice proposal "raises serious privacy and civil liberties concerns."
Sen. Patrick J. Leahy, chairman of the Judiciary Committee, said the Justice proposal "raises serious privacy and civil liberties concerns." (Susan Walsh/associated Press)
By Pete Yost
Washington Post Staff Writer
Monday, August 2, 2010

Invasion of privacy in the Internet age. Expanding the reach of law enforcement to snoop on e-mail traffic or on Web surfing. Those are among the criticisms being aimed at the FBI as it tries to update a key surveillance law.

Federal law requires communications providers to give records in counterintelligence investigations to the FBI, which doesn't need a judge's approval and court order to get them.

They can be obtained merely with the signature of a special agent in charge of any FBI field office, and there is no need for suspicion of wrongdoing -- the records merely need to be considered relevant to a counterintelligence or counterterrorism investigation. The person whose records the government wants doesn't even need to be a suspect.

The bureau's use of these "national security letters," as the requests are known, has a checkered history.

The FBI engaged in widespread and serious misuse of its authority to issue the letters, illegally collecting data from Americans and foreigners, the Justice Department's inspector general concluded in 2007. The bureau issued 192,499 national security letter requests from 2003 to 2006. Since then, the bureau has continued its reliance on the letters to gather information from telephone companies, banks, credit bureaus and Internet service providers.

That last source is the focus of the Justice Department as it presses Congress to clarify the Electronic Communications Privacy Act so that the FBI can continue to gather some electronic records without a warrant from a judge.

The law already requires Internet service providers to produce the records, said Dean Boyd, a spokesman for the Justice Department's national security division. But, he said, it currently causes confusion and the potential for unnecessary litigation, as some Internet companies have argued that they are not always obligated to comply with the FBI requests.

A key Democrat on Capitol Hill, Senate Judiciary Committee Chairman Patrick J. Leahy of Vermont, wants a timeout.

The administration's proposal to change the law "raises serious privacy and civil liberties concerns," Leahy said Thursday in a statement.

"While the government should have the tools that it needs to keep us safe, American citizens should also have protections against improper intrusions into their private electronic communications and online transactions," said Leahy, who plans to hold hearings in the fall on issues involving the law.

Critics are lined up in opposition to what the Obama administration wants to do.

"The FBI is playing a shell game," says Al Gidari, whose clients have included major online companies, wireless service providers and their industry association.

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