By adding just four new words to a list of items the FBI can demand without a judge’s approval, the Obama administration hopes to make it easier for law enforcement officers to obtain records of an individual’s Internet activity, The Washington Post reported.
The administration wants to add the new category of “electronic communication transactional records” to a list of items agents can obtain without a warrant if the information is relevant to a terrorism or intelligence investigation, The Post said.
Officials said the new language is a technical clarification. But industry lawyers and civil liberties advocates said the change would represent an expansion of the government’s power, according to The Post.
According to government lawyers, the proposed category of information would include the addresses to which an Internet user sends e-mail; the times and dates the e-mail was sent and received; and possibly a user’s browser history. It would not include the content of e-mail or other Internet communication, the lawyers said.
“The Administration has proposed to clarify a statute that already requires Internet service providers to produce ‘electronic communication transactional records’ to the FBI upon request. The statute as written causes confusion and the potential for unnecessary litigation,” Justice Department spokesman Dean Boyd said in a statement. “This clarification will not allow the government to obtain or collect new categories of information, but it seeks to clarify what Congress intended when the statute was amended in 1993.”
Added Boyd: “The term ‘electronic communication transactional records’ includes, for example, records regarding a customer’s communication transactions, records regarding contact between facilities and the means used to access a given facility. The term would not include the content of communications. These categories of information are analogous to subscriber information and toll billing records for ordinary telephone service.”
The FBI has come under fire in recent years for its use of national security letters. A Justice Department Inspector General report released in January found that the FBI went around the requirements of the Electronic Communications Privacy Act and internal guidelines to obtain phone records.
Service providers entered into contracts with the FBI so their employees could work in the bureau’s Communications Analysis unit. Those private company employees were treated as members of the team by FBI employees, were assigned their own e-mail accounts and attended staff happy hours.
FBI agents made informal requests for phone records via e-mail, post-it notes, by telephone and used what the FBI referred to as “sneak peeks” — all informal approaches that the inspector general found were improper. One FBI agent said having those employees in the office was like “having an ATM in your living room.”
The White House is asking Congress to make the changes to the Electronic Communications Privacy Act beginning in the fiscal 2011, which starts in October.
This post has been updated since it was originally published.