by Tom Burghardt
August 13, 2010
administration is seeking authority from Congress that would
compel internet service providers (ISPs) to turn over records of an
individual's internet activity for use in secretive FBI probes.
In another instance where Americans are urged to trust their political
The Washington Post reported last month
"the administration wants to add just four
words - 'electronic communication transactional records' - to a list of
items that the law says the FBI may demand without a judge's approval."
Under cover of coughing-up information deemed
relevant to espionage or terrorism investigations, proposed changes to the
Electronic Communications Privacy Act (ECPA)
would greatly expand the volume of private records that can be seized
through National Security Letters (NSLs).
Constitution-shredding letters de cachet, NSLs are administrative subpoenas
that can be executed by agencies such as the FBI, CIA or Defense Department,
solely on the say so of supervisory agents.
The noxious warrants are not subject to court review, nor can a recipient
even disclose they have received one. Because of their secretive nature,
they are extremely difficult to challenge.
Issued by unaccountable Executive Branch agents hiding behind a fašade of
top secret classifications and much-ballyhooed "sources and methods," NSLs
clearly violate our constitutional rights.
The fourth amendment unambiguously states:
"The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or
things to be seized."
However, in "new normal" America constitutional
guarantees and civil rights are mere technicalities, cynical propaganda
exercises jettisoned under the flimsiest of pretexts:
the endless "War
on Terror" where the corporate state's praetorian guards work
the "dark side."
Once served, firms such as telecommunication
providers, banks, credit card companies, airlines, health insurers, video
rental services, even booksellers and libraries, are compelled to turn over
what the secret state deem relevant records on targets of FBI fishing
If burdensome NSL restrictions are breeched for any reason, that person can
be fined or even jailed if gag orders built into the draconian
USA Patriot Act are violated.
However, even the Patriot Act's abysmally lowered threshold for seizing
private records specify that NSLs cannot be issued,
"solely on the basis of activities protected
by the first amendment of the Constitution of the United States."
Despite these loose standards, congressional
investigators, journalists and civil liberties watchdogs found that the FBI
violated the rules of the road, such as they are, thousands of times.
Between 2003-2006, the Bureau issued 192,499 NSLs, according to current
estimates, the FBI continues to hand out tens of thousands more each year.
According to a
May 2009 Justice Department letter sent to
the House and Senate Judiciary Committees,
"in 2007, the FBI made 16,804 NSL requests"
and followed-up the next year by issuing some, "24,744 NSL requests ...
to 7,225 United States persons."
The Justice Department's Office of the Inspector
General (OIG) issued
a 2007 report which concluded that the
Bureau had systematically abused the process and exceeded their authority.
A follow-up report published by the OIG in
January found that serious civil liberties breeches continue under President
This is hardly surprising given the track record of the Obama
The latest White House proposal would hand the secret state unprecedented
access to the personal communications of every American. What Bushist war
criminals did secretly, Obama intends to do openly and with the blessings of
a supine Congress.
As constitutional scholar Glenn Greenwald
"not only has Obama... blocked any reforms,
he has taken multiple steps to further expand unaccountable and
unchecked surveillance power."
Nowhere is this more apparent than by
administration moves to "reform" ECPA.
While the Justice Department claims their newly sought authority does not
include "'content' of email or other Internet communications," this is so
much eyewash to deceive the public.
In fact, the addition of so-called transactional records to the volume of
files that the state can arbitrarily seize, would hand the government access
to a limitless cache of email addresses, dates and times they were sent and
received, and a literal snap-shot on demand of what any user looks at or
searches when they log onto the internet.
As I have pointed out before, most recently last month when I
described the National Security Agency's
PERFECT CITIZEN program, the roll-out of privacy-killing deep-packet
inspection software developed by NSA already has the ability to read and
catalogue the content of email messages flowing across private
Former Bushist Homeland Security official, Stewart A. Baker,
applauded the proposal and told the Post,
"it'll be faster and easier to get the
data." Baker touts the rule change as a splendid way for ISPs to hand
over "a lot more information to the FBI in response to an NSL."
While the Post claims "many internet service
providers" have "resisted the government's demands to turn over electronic
records," this is a rank mendacity.
A "senior administration official," speaking anonymously of course, told the
Post that "most" ISPs already "turn over such data." Of course they do, and
at a premium price!
Internet security analyst Christopher Soghoian has documented that
just one firm,
Sprint Nextel, routinely turned over their
customer's geolocation data to law enforcement agencies and even built them
a secure web portal to do so, eight million times in a single year!
wrote last year that,
"government agents routinely obtain customer
records from these firms, detailing the telephone numbers dialed, text
messages, emails and instant messages sent, web pages browsed, the
queries submitted to search engines, and of course, huge amounts of
geolocation data, detailing exactly where an individual was located at a
particular date and time."
As a public service, the secrecy-shredding web
Cryptome has published dozens of so-called compliance guides for
law enforcement issued by a plethora of telecoms and ISPs.
Readers are urged to peruse
Yahoo's manual for a taste of what these
grifters hand over.
While the administration argues that "electronic communication transactional
records" are the "same as" phone records that the Bureau can obtain with an
NSL, seizing such records reveal far more about a person's life, and
political views, than a list of disaggregated phone numbers. This is
precisely why the FBI wants unlimited access to this data.
Along with racial and religious profiling, the
Bureau would be handed the means to build a political profile on anyone they
deem an "extremist."
That "senior administration official" cited by the Post claims that access
to a citizen's web history,
"allows us to intercede in plots earlier
than we would if our hands were tied and we were unable to get this data
in a way that was quick and efficient."
Perhaps our "change" administration has
forgotten a simple historical fact: police states are efficient.
The value of privacy in a republic, including
whom one communicates with or where one's interests lie, form the core
values of a democratic order; principles sorely lacking in our "new normal"
In a small but significant victory,
the ACLU announced this week that,
"the FBI has partially lifted a gag it
imposed on American Civil Liberties Union client Nicholas Merrill in
2004 that prevented him from disclosing to anyone that he received a
national security letter (NSL) demanding private customer records."
In a statement to reporters, Merrill said:
"Internet users do not give up their privacy
rights when they log on, and the FBI should not have the power to
secretly demand that ISPs turn over constitutionally protected
information about their users without a court order. I hope my
successful challenge to the FBI's NSL gag power will empower others who
may have received NSLs to speak out."
Despite this narrow ruling, the FBI intends to
soldier on and the Obama administration is hell-bent on giving the Bureau
even more power to operate in the dark.
Commenting on the Merrill case, The
Washington Post reported FBI spokesperson
Mike Kortan claimed that NSL,
"secrecy is often essential to the
successful conduct of counterterrorism and counterintelligence
investigations" and that public disclosure "may pose serious risks to
the investigation itself and to other national security interests."
Those "other" interests, apparently, do not
extend to the right to express one's views freely, particularly when they
collide with the criminal policies of the secret state.