The FBI’s Campaign to Expand the Scope of National Security Letters Endangers Privacy and Encourages Abuse
By Danielle Kerem
The latest manifestation of federal law enforcement’s efforts to circumvent the Fourth Amendment and degrade the security of Americans’ electronic data has taken the form of a secret provision introduced into the text of the Senate’s annual intelligence authorization bill as well as a proposed amendment to the Electronic Communications Privacy Act. The provisions would allegedly “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.”
Restore the Fourth has joined a coalition of 25 civil society organizations, businesses, and trade associations in expressing our strong opposition to this expansion of the National Security Letter (NSL) statute, an expansion that would enable the government to access a broader class of Electronic Communication Transactional Records (ECTR) and obtain “sensitive information about users’ online activities without court oversight.” Since the enactment of the 2001 USA Patriot Act, the FBI’s NSL authority has radically expanded and, in 2015, the agency made 48,642 warrantless demands for information – often accompanied by gag orders prohibiting recipients from revealing the request’s existence.
In our letter to lawmakers on Capitol Hill, we explain that the widening scope of administrative subpoenas “would paint an incredibly intimate picture of an individual’s life,” as the ECTRs – generally limited to phone and bank records – would now potentially include “a person’s browsing history, email metadata, location information, and the exact date and time a person signs in or out of a particular online account.”
Moreover, the letter highlights the FBI’s past violations of the NSL statute and contends that the proposed expansion would only exacerbate the pattern of abusive investigatory practices. In fact, a 2007 Department of Justice review of the FBI’s procedures concluded that the agency was guilty of “serious misuse of the FBI’s national security letter authorities”. For these reasons, the coalition concludes our letter with a demand that lawmakers honor the Senate’s commitment to effective monitoring and oversight by removing language from both bills that would expand the government’s warrantless access to Americans’ internet data and erode consumer privacy rights.