FBI Continues To Demand Far More Info Than It's Supposed To With Its National Security Letters

Legal Issues

from the YOU-CAN-TRUST-US dept

Mike covered Twitter’s release of two FBI NSLs it had received in the last few years — more evidence that the USA Freedom Act, if nothing else, has made review of NSL gag orders more timely and the orders themselves more easily challenged.

Not that there hasn’t been significant pushback from Twitter along the way. The social media platform sued the government in 2014, claiming that the de facto government-imposed secrecy was a violation of the company’s First Amendment rights.

It can discuss two of the NSLs it received now, and it’s revealing that the FBI is still asking for far more than it should when issuing these.

Each of the two new orders, known as national security letters (NSLs), specifically request a type of data known as electronic communication transaction records, which can include some email header data and browsing history, among other information.

In doing so, the orders bolster the belief among privacy advocates that the FBI has routinely used NSLs to seek internet records beyond the limitations set down in a 2008 Justice Department legal memo, which concluded such orders should be constrained to phone billing records.

Twitter’s counsel says it only hands out what the DOJ’s legal guidance says it’s supposed to hand out. The FBI, on the other hand, says nothing, which is pretty much how it handles all requests for comments on NSLs/ignoring DOJ legal guidance. What the agency has said — not directly but via its oversight — is that it doesn’t believe the DOJ can interpret NSL statutes for it.

An FBI inspector general report from 2014 indicated that it disagreed with the memo’s guidance.

The DOJ’s interpretation was issued nine years ago. To this day, the FBI continues to ask for more than the DOJ says it can. And the DOJ doesn’t appear to be stepping in to iron out the disagreement, much less reiterate its “phone billing only” policy.

We’ve seen overbroad requests before, starting with the first NSL ever released publicly. One of the NSLs sent to Yahoo asked for all of the following:

• 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

If the DOJ isn’t going to do anything about this, the FBI will continue to issue thousands of letters a year asking for more than it should and hoping recipients aren’t aware they don’t have to hand all of this information over. It’s also hoping recipients don’t know they’re allowed to challenge the accompanying gag orders — or at least it was until the Internet Archive (which isn’t the proper target for NSLs to begin with) publicly pointed out the FBI was still using outdated boilerplate in its demand letters.

This is, unfortunately, how law enforcement agencies tend to handle things: blow past legal guidance and civil liberties until forced to do otherwise — whether by a court or a policy change. And when forced to do so, engage in foot-dragging and inconsistent internal communications so as to lessen the “damage” of playing by the rules. The FBI may be at the top of the law enforcement food chain, but it often operates as though it’s heading up Hazzard County.

Filed Under: 4th amendment, fbi, national security letters, nsls, warrants
Companies: twitter