White House Seeks to Clarify F.B.I. Powers vis-à-vis E-Mail

By CHARLIE SAVAGE

WASHINGTON — The Obama administration has asked Congress to give clear authority to the Federal Bureau of Investigation to obtain records related to the context of e-mails and other Internet-based communications without first obtaining a warrant from a judge.

Some advocates of electronic privacy have raised alarms about the proposal, saying it could expand government eavesdropping on computer activity without court oversight. Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee, said Thursday that the proposal raised “serious privacy and civil liberties concerns.”

The administration portrays its proposal, first reported by The Washington Post, as a mere technical fix to clarify a confusingly written statute and says it would not grant the F.B.I. any new powers. It says that F.B.I. agents have been requesting such information for years and that most Internet service providers routinely provide it.

“The statute as written causes confusion and the potential for unnecessary litigation,” said Dean Boyd, a Justice Department spokesman. “This clarification will not allow the government to obtain or collect new categories of information, but it seeks to clarify what Congress intended when the statute was amended in 1993.”

Specifically, administration officials have asked Congress to include a provision in the 2011 intelligence authorization bill modifying the Electronic Communications Privacy Act, which forbids companies that handle electronic communications — including Internet service providers and Web-based companies like Google — to reveal customer information without a court warrant.

The act makes exceptions for information relevant to national-security investigations, when speed can be essential. For example, it allows F.B.I. agents to issue a “national-security letter” requiring a company to turn over records listing the phone numbers someone has called, although a warrant is still required to eavesdrop on the content of calls.

The proposal would add “electronic communication transactional records” — like e-mail addresses used in correspondence and Web pages visited — to a list of the categories of information that F.B.I. agents can demand.

The Justice Department contends that the F.B.I. already has the authority to obtain such Internet records with a national-security letter because “electronic communications transactional records” are mentioned elsewhere in the act, although not in that specific list.

A 2008 memorandum written for the bureau by the Justice Department's Office of Legal Counsel said that the specific list of categories of information that the F.B.I. can demand is "exhaustive." Still, a footnote said that "categories of information parallel to subscriber information and toll bill records for ordinary telephone services" are also covered.

The F.B.I. contends that the e-mail addresses to which people send messages, and the Web pages they visit, are the functional equivalent of the phone numbers they call. Officials familiar with the matter, speaking anonymously because of the sensitivity of the issue, say that most companies agree with that interpretation and have routinely turned over such records when requested.

At least one company has balked, though, saying it feared a lawsuit for illegally turning over private information. The officials declined to identify the company.

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Baltimore Nonviolence Center

Friday, July 30, 2010