FBI’s push to ‘fix a typo’ would really expand its surveillance authority

Robyn Greene writes: At last week’s Senate Intelligence Committee hearing on Worldwide Threats, FBI Director James Comey reiterated his call for a major expansion of the FBI’s surveillance authorities, but disingenuously downplayed it as fixing a “typo” in the law. In fact, Comey’s proposed fix, which he calls one of the FBI’s top legislative priorities, would be a major expansion of surveillance authority, and a major hit to Americans’ privacy and civil liberties. It would grant the FBI access to a range of revealing and personal details about Americans’ online communications — what are called Electronic Communications Transactional Records (ECTR), in legalese — without court approval.

Through Comey’s “ECTR fix,” the FBI would have the unilateral authority to obtain information from phone and Internet companies about your online communications such as logs of emails you send and receive, cell site data (including your location information), and lists of websites you visit. The FBI wants to get this information using National Security Letters (NSLs), which are demands for information issued directly by local FBI offices without any court approval or supervision.

Under current law, the FBI can only use NSLs to get information pertaining to a customer’s “name, address, length of service, and local and long distance toll billing records of a person or entity.” By contrast, if the FBI wants to compel a company to hand over the much more revealing private information that is included in ECTRs, they currently can’t use NSLs — instead, they have to get a court order after convincing a judge that they have a factual basis for demanding those records. Therefore, the FBI’s proposal that Congress add ECTRs to the NSL statute is far from a typo fix, and would instead be a major expansion of FBI’s authority to conduct surveillance with virtually no oversight and no accountability. [Continue reading…]

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