FBI Pushing For Legislation That Will Legalize Its National Security Letter Abuses

from the fighting-terrorism-means-never-having-to-say-you're-sorry dept

One of the more interesting things to sneak out around the edges of the FBI's redaction bars in Yahoo's document dump of National Security Letters was the sheer amount of information the agency was demanding. The FBI -- using letters it writes and approves with no outside oversight -- wants all of the following in exchange for a piece of paper backed by nothing but the FBI's "national security" claims.

In preparing your response to this National Security Letter, you should determine whether your company maintains the following types of information which may be considered by you to be an electronic communications transactional record in accordance with Title 18 United States Code § 2709.

Subscriber name and related subscriber information

Account number(s)

Date the account opened or closed

Physical and or postal addresses associated with the account

Subscriber day/evening telephone numbers

Screen names or other on-line names associated with the account

All billing and method of payment related to the account including alternative billed numbers or calling cards

All e-mail addresses associated with the account to include any and all of the above information for any secondary or additional e-mail addresses and or user names identified by you as belonging to the targeted account in this letter

Internet Protocol (IP) addresses assigned to this account and related e-mail accounts

Uniform Resource Locator (URL) assigned to the account

Plain old telephone{s) (POTS), ISDN circuit(s), Voice over internet protocol (VOIP), Cable modem service, Internet cable service, Digital Subscriber Line (DSL) asymmetrical/symmetrical relating to this account

The names of any and all upstream and providers facilitating this account's communications

This is odd because the FBI is not entitled to all of this information when using NSLs, as Gabe Rottman of CDT points out.

There are a few statutes that authorize the issuance of NSLs, but the most important—and the one with the greatest potential for abuse—is 18 U.S.C. § 2709, titled “Counterintelligence Access to Telephone Toll and Transactional Records.” As the name suggests, the authority was meant to be limited to phone records. It allows the FBI to issue NSLs to telecommunications companies to secure “the name, address, length of service, and local and long distance toll billing records of a person or entity” if the FBI certifies that they are relevant to a terrorism or espionage investigation. (The statute does mention the phrase “electronic communication transactional records,” but it still limits the types of covered records to name, address, length of service, and billing records–i.e., the equivalent of phone records.)

So, the FBI is asking for far more than it's allowed to get with an NSL. It's apparently hoping some NSL recipients won't know they're not required to turn over all of this information. Certainly, Yahoo knows, having battled the FBI (and the FISA court) over government demands for information. But the FBI issues thousands of these every year, and not every recipient is going to know what it does or doesn't have to turn over to the feds.

This perhaps explains the push to expand the FBI's NSL capabilities. Secret language in the Senate's secret intelligence bill looks to add email metadata and possibly browsing history to the list of records the FBI can acquire with NSLs. FBI Director James Comey has been stumping for this change, claiming the only thing standing between the FBI and records it always should have had access to in the first place is a typo.

On top of that, Sen. John Cornyn is attempting to "fix" the ECPA… by making even more of a mockery of the words behind the acronym: Electronic Communications Privacy Act. This is what Cornyn wants to give the FBI warrantless access to:

Name, physical address, email address, telephone number, instrument number, and other similar account identifying information.

Account number, login history, length of service (including start date), types of service, and means and sources of payment for service (including any card or bank account information).

Local and long distance toll billing records.

Internet Protocol (commonly known as ‘IP’) address or other network address, including any temporarily assigned IP or network address, communication addressing, routing, or transmission information, including any network address translation information (but excluding cell tower information), and session times and durations for an electronic communication.

As you can see, some of those records are already being requested by the FBI with NSLs, even though it has no legal basis to do so. It appears the FBI is pushing for codification of practices it already uses. That's the intelligence community way: it's better to ask for legislative fixes than permission. It's a forgiveness that pardons past behavior and permanently shields the agency from future legal challenges.

Filed Under: ecpa, ecpa reform, emails, fbi, national security letters, nsls


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  • identicon
    Anonymous Coward, 7 Jun 2016 @ 10:45am

    So, what that actually means is that the FBI are criminals and terrorists masquerading as Law Enforcement.

    So, standard US policing techniques, then.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 7 Jun 2016 @ 11:14am

    We're just rounding out our mission statement

    Let's see. Use legal NSL's, illegally. Push for legislation to retroactively make former illegal NSL usage legal. Claim moral high ground in battling terrorism by practicing terrorism immorally. Assert position as law enforcement by not enforcing laws, breaking laws, and then asking for forgiveness for having broken laws it wasn't enforcing.

    Anything else we can add to the FBI's job description?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jun 2016 @ 11:52am

      Re: We're just rounding out our mission statement

      torturing suspects without oversight, setting up fake stings to imprison people they do not like. Or how about the whole murdering people in custody then claiming they were defending themselves while the "accused was shackled to the table" yet somehow managed to make the agents empty a gun into the back of his head in self defense.

      reply to this | link to this | view in chronology ]

  • identicon
    Judge Dredd, 7 Jun 2016 @ 11:38am

    It's a lie! The evidence has been falsified! It's impossible! I never broke the law, I AM THE LAW!

    reply to this | link to this | view in chronology ]

  • icon
    John David Galt (profile), 7 Jun 2016 @ 12:03pm

    It's silly for either side to even try to enact statutes on this topic.

    Either the Fourth Amendment, which clearly bans these kinds of surveillance, still has teeth, or no law of any kind on the subject is worth the paper it's written on.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jun 2016 @ 1:37pm

      Re: It's silly for either side to even try to enact statutes on this topic.

      It is not the paper that gives the Constitution Significance.

      It's significance comes from Patriots willing to do something when the government ignores the will of the people. Right now the government is NOT ignoring the will of the people.

      Right now it is the will of the people through socialism that is asking.... no begging the government to step in and protect us from our paper cuts, salt addiction, and a few people in turbans.

      Odds are you will die from your car, your doctor, your police officer, or your home before you would a terrorist. People are running in fear and are currently unable to think rationally.

      You can bet the government... "any government", will be willing to remove your rights to save you from yourself!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jun 2016 @ 1:05pm

    Default Position

    Never answer questions, never consent to searches, shoot first. Wait, was that my position or the FBI's?

    reply to this | link to this | view in chronology ]

  • identicon
    Expendable Juan, 7 Jun 2016 @ 1:22pm

    Treason (Hoover Sucked, literally)

    The FBI is clearly insanely out of control. Per media efforts in the past couple of years (thanks O'Bummer), there has been a continuous escalation of a steady drumbeat - one demand, maneuver, after another, in a campaign to toughen the skin of the peons of further treasonous acts disguised and "lawn odor."

    Yet, the congress critters are too busy with their agendas to care, much less act.

    One fibber troll asks: what have they (we) done that was/is illegal? How about murder, coups, coverups, yada yada (like, where have you been for the past 60 years)?

    We are doomed. The pretend system is beyond redemption.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jun 2016 @ 1:43pm

      Re: Treason (Hoover Sucked, literally)

      Well... the system is NOT what is beyond redemption... just the current pack of fucks we voted into it. If we could somehow wake the people sucking their party dicks or shake them from their trances we could get a completely different set of political candidates into office

      As things stand right now... America has a bad case of defeatism right now and are letting the parties tell them who they can have.

      This is one of the primary reasons that Drumpf has such a following. The only thing I like about Trump is that his election might help destroy the republican party and I really like that idea.

      Hillary and Bernie are just more of the same "Destroy America" crowd that has been fucking America up.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 7 Jun 2016 @ 3:53pm

    Telling actions...

    Now if only those actions had the result they should, instead of the exact opposite.

    If someone is going to claim that they are acting within the law, or according to the law, and then later on attempt to change the law to cover what they were/are doing it's pretty clear that they know full well that they are not in fact operating according to the law, and are trying to legalize their actions after the fact.

    An 'admission' like this should be grounds for a hefty benchslap or other form of punishment, and yet instead more often than not you have tools masquerading as politicians falling over themselves to fix the 'minor oversight in the law' and retroactively legalize what wasn't legal before, because 'National Security: Be Afraid' trumps all and they don't want to be seen as not 'tough on (unauthorized) crime'.

    reply to this | link to this | view in chronology ]

  • icon
    Coyne Tibbets (profile), 8 Jun 2016 @ 12:29am

    Electronic Communications Piracy Act

    This is odd because the FBI is not entitled to all of this information when using NSLs,...

    Of course, we are assured, neither the FBI nor any other intelligence agency would willfully exceed the limits of the law. They would be prosecuted....oh, wait...


    So, the FBI is asking for far more than it's allowed to get with an NSL. It's apparently hoping some NSL recipients won't know they're not required to turn over all of this information.

    This is not true: the FBI doesn't care whether recipients know it or not. It is the whole reason the FBI so savagely pursued cases against people who even talked to their attorneys, much less asked a court to rule on the need for a given NSL; or the right to publish an NSL. What was that demand again? Oh, right, $250,000 per day, doubled weekly until Yahoo succumbed. That's dictatorship, not judicial remedy--not negotiation.

    (Possibly, Yahoo is a little miffed and that's why they're doing a document dump?)


    Electronic Communications Privacy Act

    They really should call it the Electronic Communications Piracy Act.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2016 @ 9:37am

    So who is going to prosecute the FBI? If a local cop abused their position like this a citizen would sue.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jun 2016 @ 12:28pm

    FBI NSL Equal King George Writ of Assistance

    FBI Pushing For Legislation That Will Legalize Its National Security Letter Abuses

    What was the original impetuous behind the US governments use of national security letters beginning in 1978?

    Investigating non-US persons/entities involved in terrorism or espionage.

    From the Wikipedia page titled National secutiry letter:

    The oldest NSL provisions were created in 1978 as a little-used investigative tool in terrorism and espionage investigations to obtain financial records. Under the Right to Financial Privacy Act (RFPA), part of the Financial Institutions Regulatory and Interest Rate Control Act of 1978), the FBI could obtain the records only if the FBI could first demonstrate the person was a foreign power or an agent of a foreign power. Compliance by the recipient of the NSL was voluntary, and states' consumer privacy laws often allowed financial institutions to decline the requests.[5] In 1986, Congress amended RFPA to allow the government to request disclosure of the requested information. In 1986, Congress passed the Stored Communications Act (SCA), part of the Electronic Communications Privacy Act of 1986), which created provisions similar to the RFPA that allowed the FBI to issue NSLs. Still, neither act included penalties for failing to comply with the NSL. A 1993 amendment relaxed the restriction regarding "foreign powers" and allowed the use of an NSL to request information about persons not under direct investigation. In 2001, section 505 of the USA PATRIOT Act expanded the use of the NSLs.

    https://en.wikipedia.org/wiki/National_security_letter


    In 2015 alone thousands of NSL's were directed at US persons and as such were used as a method for "law enforcement" to circumvent the Constitution and judicial oversight (all to often a rubber stamp) during investigations.

    According to a Reuters report dated 2May16 there were over 48,000 NSL's issued in 2015.

    From Reuters:

    U.S. spy court rejected zero surveillance orders in 2015: memo

    The majority of NSL requests, 31,863, made in 2015 sought information on foreigners, regarding a total of 2,053 individuals, the memo stated.

    The FBI made 9,418 requests for national security letters in 2015 for information about U.S. citizens and legal immigrants, regarding a total of 3,746 individuals, it showed.

    The FBI also made 7,361 NSL requests for only "subscriber information," typically names, addresses and billing records, of Americans and foreigners regarding 3,347 different people.

    http://www.reuters.com/article/us-usa-cybersecurity-surveillance-idUSKCN0XR009


    NSL's are ripe for abuse and serve no purpose other than further degrading the law in the name of expediency.

    From CATO Institute:

    These tools are fundamentally not about spying on terrorists. The government has always had ample power to do that. They’re about authority to spy on the innocent.

    http://www.cato.org/blog/record-number-americans-targeted-national-security-letters


    PS J. Edgar Comey is a clown who has completely forsworn his oath to the Constitution and seeks only to accumulate greater powers for the national security state at the expense of all Americans liberties.

    reply to this | link to this | view in chronology ]

  • icon
    Monday (profile), 10 Jun 2016 @ 2:14pm

    Precedent because of Citizens' Ignorance?

    Can the FBI cite previous submission(s) to their requests as setting precedent in having access to this information?

    Banking on that lack of information, or misinformation?

    reply to this | link to this | view in chronology ]


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