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FBI's push to clarify electronic authority raises privacy concerns

By Pete Yost
Washington Post Staff Writer
Monday, August 2, 2010; A11

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.

"This is a huge expansion" of the FBI's authority, he said, "and burying it this way in the intelligence authorization bill is really intended to bury it from scrutiny."

Boyd, the Justice Department spokesman, said the changes being proposed will not allow the government to obtain or collect new categories of information; they clarify what Congress intended when the statute was amended in 1993, he argued.

Critics point to a 2008 opinion by the Justice Department's Office of Legal Counsel. It found that the FBI's reach with national security letters extends only as far as getting a person's name, address, the period in which they were a customer, and the phone numbers for incoming and outbound calls.

The problem the FBI has been having is that some providers, relying on a 2008 Justice Department opinion issued during the Bush administration, have refused to turn over information about customers' e-mail correspondence or Web-surfing history.

Since the FBI has the authority to obtain the same information with a court order issued under a broad section of the USA Patriot Act, there's no need to change the law, said Gregory Nojeim, director of the Project on Freedom, Security and Technology at the nonprofit Center for Democracy and Technology.

The critics say the proposed change would allow the FBI to remove federal judges and courts from scrutiny of its requests for sensitive information.

"The implications of the proposal are that no court is deciding whether even that low standard of 'relevance' is met," Nojeim said. "The FBI uses national security letters to find not just who the target of an investigation e-mailed, but also who those people e-mailed and who e-mailed them."

-- Associated Press

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