With a treasure trove of digital information tantalizingly within reach, the FBI doesn’t want to be slowed down by inconveniences like Fourth Amendment protections. So frustrated is FBI chief James Comey by constitutional limits that he told the Senate Intelligence Committee that the FBI’s difficulty in getting its hands on Americans’ online communications resulted from a “typo” in the law that should be changed. He may get his wish.
That pesky Fourth Amendment
Comey’s campaign against encryption may have stalled, but his push to expand the agency’s use of warrantless searches got a couple of assists recently. The FBI uses an extraordinary search procedure known as National Security Letters (NSLs) to obtain Americans’ bank and phone records without a court order. NSLs not only compel companies to provide the information, they come with gag orders that forbid companies from disclosing the requests. Talk about a process ripe for abuse.
Various aspects of NSLs have been ruled unconstitutional, but still they persist. The Electronic Frontier Foundation and other civil rights groups have fought for years to spread awareness about the boom in NSL searches and push for greater accountability and oversight of the process. “NSLs have a sordid history. They’ve been abused in a number of ways, including … targeting of journalists,” Andrew Crocker, staff attorney for the EFF, told The Intercept.
But the Senate Intelligence Committee last week passed a bill that would expandtheir reach. A provision in the 2017 Intelligence Authorization Act would allow the FBI to use NSLs to obtain “electronic communication transactional records” — one of those deliciously vague terms that could include email subject lines and metadata, Web browsing histories, and more.
The lone dissenting committee vote against the bill came from Oregon Senator Ron Wyden. The bill’s NSL provision “takes a hatchet to important protections for Americans’ liberty,” Wyden said after the vote. “This bill would mean more government surveillance of Americans, less due process, and less independent oversight of U.S. intelligence agencies. Worse, neither the intelligence agencies nor the bill’s sponsors have shown any evidence that these changes would do anything to make Americans more secure.”
You say reform, I say surveillance
Meanwhile, Senate Majority Whip John Cornyn has inserted a similar NSL-expansion provision into — ironically — a bill aimed at amending the Electronic Communications Privacy Act (ECPA) to incorporate more protections for electronic communications. When the law was written in 1986, few people used email or cloud computing, and such communications were considered “abandoned” after 180 days. The Email Privacy Act would require the government to obtain warrants before forcing tech companies to turn over these older emails stored in the cloud.
“If [the NSL provision] is added to ECPA, it’ll kill the bill,” Gabe Rottman, deputy director of the Center for Democracy and Technology’s freedom, security, and technology project, told The Intercept. “If it passes independently, it’ll create a gaping loophole. Either way, it’s a big problem and a massive expansion of government surveillance authority.”
Party like it’s “Nineteen Eighty-Four”
The prospect of Big Brother pawing through all of our electronic activities has understandably made many a tad paranoid. But as Joseph Heller said, “Just because you’re paranoid doesn’t mean they aren’t after you.” A recent study from Oxford University found that Edward Snowden’s revelations about government surveillance has had a “chilling effect” on Americans’ Internet habits, including a 20 percent decline in page views on Wikipedia articles related to terrorism.
“This is measuring regular people who are being spooked by the idea of government surveillance online,” researcher Jon Penney told the Washington Post. “You want to have informed citizens. If people are spooked or deterred from learning about important policy matters like terrorism and national security, this is a real threat to proper democratic debate.”
Desirable or not, it’s possible to change our online habits to avoid government surveillance. Changing our biometric markers? Not so much (sorry, writers of “Face/Off“). And since 2008 the FBI has assembled a massive database of Americans’ biometric information called Next Generation Identification (NGI), which has more than 100 million individual records that include fingerprints, facial recognition, iris scans, and palm prints from 52 million-plus people.
All of this data was collected not only during arrests, but from millions of Americans for noncriminal reasons like background checks and state licensing requirements. As the EFF notes, some states require your prints if you want to be a dentist, accountant, teacher, geologist, realtor, lawyer, or even an optometrist. And all jobs with the federal government — not only those with security clearances — require a fingerprint check, even part-time food service workers, student interns, and maintenance workers, as well as everyone who has served in any capacity in the military.
“While federal officials and law enforcement hail the NGI program as a futuristic way to track terrorists and criminals, others have been notably less enthusiastic,”International Business Times reports. “In the name of security and public safety, many advocates say the U.S. government is increasing its surveillance, through programs like NGI, on everyday citizens who have done nothing wrong.”
Building the Eye of Sauron
Now the FBI wants to exempt this creepy collection of personal data from the federal Privacy Act, which guarantees basic protections such as allowing individuals to view their own records — even though, as Breitbart notes, there have been complaints about the database’s accuracy, with false positives generated 20 percent of the time.
“If you have no ability to access the record the FBI has on you, even when you’re not part of an investigation or under investigation, and lo and behold inaccurate information forms a ‘pattern of activity’ that then subjects you to [be] the focus of the FBI, then that’s a problem,” noted Jeramie Scott of the Electronic Privacy Information Center, a digital civil liberties group.