White House proposal would ease FBI access to records of Internet activity
By Ellen Nakashima Washington Post Staff Writer
The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
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. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.
But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.
Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL."
Here, for those interested, is the law in question that the White House is seeking to amend.
If President Bush's warrantless wiretapping was wrong, so is this. Of course, as a senator, Obama voted in favor of the FISA amendment that legalized Bush's plan, so this behavior is not inconsistent from him.
What will it take to get people in office who actually have the courage to stand up against these practices? Here we have a man whose middle name might as well be "change" if you believe his entire campaign for the presidency and the amazing wave of support he generated. And yet even he is using the cloak of terrorism to circumvent the established laws regarding the fourth amendment. It's possible that it is exaggerated in my memory, but I'm pretty sure there was a sizable public outcry once Bush's policies became public.
Do those who opposed Bush's policies see any difference here? Does this issue just not matter as much as something else? Does this surprise anyone? Is there any reason why those who supported Bush's practices wouldn't support this?
Personally, despite my many criticisms of and objections to Obama, had he actually at any point come out and denounced Bush's wiretapping policies and vowed to overturn them as president, it would have been enough to at least get me to consider voting for him. And this plan, even if it doesn't go through, only reinforces my lack of trust in him.
It's very hard to be against this kind of ruling, from a political standpoint, but people need to stand up against them.
Going against this kind of policy puts you in the cross-hairs if anything goes wrong later. The people against you will say "If Only We had this tool.. but Evil Politician X kept it from us. These dead children are on your conscience" or some such bullshit.
We need to streamline the process for judicial review if it is too slow. We need more judges specifically waiting for these requests - I don't care if we pay them $200k a year to sit on their hands most of the time. I guess that's the price of our freedom.
Let's at least make it so two different organizations have to be corrupt before we lose our civil rights. What the fuck is wrong with checks and balances, anyway?
Here is what the Obama camp wrote in 2008 on this and related issues, while he was running for the presidency (link is to download a .pdf of this letter):
• Revise the PATRIOT Act. Barack Obama believes that we must provide law enforcement the tools it needs to investigate, disrupt, and capture terrorists, but he also believes we need real oversight to avoid jeopardizing the rights and ideals of all Americans. There is no reason we cannot fight terrorism while maintaining our civil liberties. Unfortunately, the current administration has abused the powers given to it by the PATRIOT Act. A March 2007 Justice Department audit found the FBI improperly and, in some cases, illegally used the PATRIOT Act to secretly obtain personal information about American citizens. As president, Barack Obama would revisit the PATRIOT Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches, and the use of the material witness provision.
• Eliminate Warrantless Wiretaps. Barack Obama opposed the Bush Administration’s initial policy on warrantless wiretaps because it crossed the line between protecting our national security and eroding the civil liberties of American citizens. As president, Obama would update the Foreign Intelligence Surveillance Act to provide greater oversight and accountability to the congressional intelligence committees to prevent future threats to the rule of law.
• Restore Habeas Corpus. The right of habeas corpus allows prisoners to ask a court to determine whether they are being lawfully imprisoned. Recently, this right has been denied to those deemed enemy combatants. Barack Obama strongly supports bipartisan efforts to restore habeas rights. He firmly believes that those who pose a danger to this country should be swiftly tried and brought to justice, but those who do not should have sufficient due process to ensure that we are not wrongfully denying them their liberty.
I think the New York Times spelled it out pretty well in this editorial:
Where is the “robust oversight” that voters were promised? Earlier this year, the administration successfully pushed for crucial provisions of the Patriot Act to be renewed for another year without changing a word. Voters had every right to expect the president would roll back authority that had been clearly abused, like national security letters. But instead of implementing reasonable civil liberties protections, like taking requests for e-mail surveillance before a judge, the administration is proposing changes to the law that would allow huge numbers of new electronic communications to be examined with no judicial oversight.
The Patriot Act is a lose/lose for any Democrat President. If he reverses it, then he is weak for the nation and its another Fox News story that runs until the next election even it would increase personal freedoms. If he keeps it then he is pissing off the base who are terrified of this thing. I do agree he needs to stop the FBI and CIA from being another group of stormtroopers for the next more paranoid President. Yet, I think we are well past the point of no return, because once you are arrested, you are automatically guilty in the public's eyes.
I don't think I like the proposed changes, but I think we should all understand that a wiretap is not the same thing as (nor analogous to) capturing email headers or web browsing histories.
There's a difference between the content of private communications and the packaging (for lack of a better term) of private communications. The former should receive the highest protection possible from government intrusion. The latter is not protected by the Constitution and has always had limited statutory protections. It's a very fine line, and I think reasonable minds could differ on which side of that line this particular issue falls on. Personally, I haven't decided yet.
Originally posted by lotjxThe Patriot Act is a lose/lose for any Democrat President. If he reverses it, then he is weak for the nation and its another Fox News story that runs until the next election even it would increase personal freedoms.
Yeah, but what I think Obama needs to realize is that Fox News is going to run that story anyway, so he may as well ignore them. One of the big Republican talking points right now--the Maddow show the other day put together a montage of numerous clips of this being said by guests on FNC--is that Obama is showing contempt for the law by refusing to allow any deportations of illegal immigrants. The fact that such deportations are, in fact, happening at a higher rate now than they were under Bush didn't stop them from airing those claims, so what makes anyone think that keeping the Patriot Act is going to stop FNC from reporting stories about Obama being weak?