Senate Intelligence Committee Expands FBI NSL Powers With Secret Amendment To Secret Intelligence Bill

from the you'll-find-out-about-the-additions-when-you're-told-you-can't-talk dept

Fri, May 27th 2016 9:31am — Tim Cushing

The annual intelligence authorization is under way, with the Senate deciding how much money the nation's spy agencies will receive next year, along with anything else they can slip in while no one's looking. The entire discussion takes place behind closed doors, so there's very little stopping the Intelligence Committee's many surveillance fans from amending the bill to increase intelligence agencies' powers.

Fortunately, there's still one person on the inside who continues to perform his oversight duties.

A provision snuck into the still-secret text of the Senate’s annual intelligence authorization would give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.

If passed, the change would expand the reach of the FBI’s already highly controversial national security letters.

[...]

The spy bill passed the Senate Intelligence Committee on Tuesday, with the provision in it. The lone no vote came from Sen. Ron Wyden, D-Ore., who wrote in a statement that one of the bill’s provisions “would allow any FBI field office to demand email records without a court order, a major expansion of federal surveillance powers.”

Wyden did not disclose exactly what the provision would allow, but his spokesperson suggested it might go beyond email records to things like web-surfing histories and other information about online behavior. “Senator Wyden is concerned it could be read that way,” Keith Chu said.

The FBI's history of abusing NSLs is well-documented. These letters allow the agency to route around judicial oversight by chanting "national security" while composing their requests. (Bonus feature: recipients are forbidden from talking about them... indefinitely.) Increasing the FBI's access with no corresponding increase in oversight is definitely not a good idea, considering it has never shown interest in self-restraint.

The FBI historically has not had access to email records via NSLs, although it did spend several years doing exactly that before being shut down by the DOJ. It obviously wants that access again and FBI Director James Comey claims the only thing standing between it and the access it always thought it had is a "typo."

If this secret amendment passes along with the authorization bill, it would weaken attempts to reform the ECPA -- the 1986 law that gives the government warrantless access to emails and other online documents more than 180 days old. But rather than fix the Senate intelligence authorization bill, legislators are looking to carve a hole in the recently (and unanimously) passed Email Privacy Act.

Sen. John Cornyn, R-Texas, is expected to offer an amendment that would mirror the provision in the intelligence bill.

Privacy advocates warn that adding it to the broadly supported reform effort would backfire.

“If [the 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, wrote in an email to 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.”

The FBI should be sending out fruit baskets to the Senate Intelligence Committee for both expanding its surveillance reach and undercutting a much-needed reform effort. Secret laws made by secretive committees during closed-doors sessions doesn't seem very "American," but much like the super-secretive NSLs the FBI loves so much, the routine invocation of "national security" tends to ward off the scrutiny this process desperately needs.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, appropriations, ecpa, ecpa reform, fbi, national security letters, nsls, senate intelligence committee, surveillance, warrants

25 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Anonymous Coward (profile), 27 May 2016 @ 9:47am

"The FBI should be sending out fruit baskets to the Senate Intelligence Committee..."
Sending fruit to a bunch of elected fruitcakes who fruitlessly lay claim to fruitful existence in their various endeavors behind closed doors seem like they would be more deservingly served from the fruit of the poisonous tree. Well, one can only hope.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 9:56am

Re:
The baskets probably were fruity. in a do what we want or this could become public sort of way.
[ link to this | view in thread ]
David, 27 May 2016 @ 10:04am

I want more National Security efforts!
In particular, I want more efforts to curb attacks on the heart of the national identity spelled out in its founding documents, the Declaration of Independence and its Constitution, and the underlying principles.

There is no National Security without a nation.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 10:11am

What is all this BS about having elected officials represent us? I guess money matters.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 10:33am

Typos
FBI Director James Comey claims the only thing standing between it and the access it always thought it had is a "typo."

The way certain government agencies see it, the US Constitution is full of typos, containing things like "shall not" when what was really meant was "shall", and the word "no" accidentally left in in certain places. But don't worry, they know what was really meant even if the rest of us don't.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 10:56am

Re:
They were elected, we elected them, but we can't get past our petty D vs R bullshit to see the truth... just the way they like it.

Sorry but this is every voting Americans failure and Responsibility. If you think your are not blame, then you likely more to blame than others. We ALL fucked this one up!
[ link to this | view in thread ]
AC, 27 May 2016 @ 11:30am

This is just more subversion of the Constitution
Secret laws, secret courts, and secret police are not 'necessary,' they are treason.

These people, at the very least, belong in prison.
[ link to this | view in thread ]
Yeah, Sure, 27 May 2016 @ 11:36am

Well, you know...
They are not only criminals, they are insane criminals.
[ link to this | view in thread ]
David, 27 May 2016 @ 11:37am

Re: This is just more subversion of the Constitution
You'll be happy to hear that as prerequisite of making your wish come true, you have been personally selected to test out the corresponding secret prison.

Your government is listening to you!
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 11:44am

heil the gestapo then.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 11:48am

Re: Typos
it's almost as if they are so unhappy over winning the 2 world war they are trying their best to recreate if Hitler had never lost.
[ link to this | view in thread ]
That One Guy (profile), 27 May 2016 @ 12:34pm

Re:
Please, the gestapo of old could only dream of the kind of powers and abilities that agencies like the NSA and FBI enjoy.
[ link to this | view in thread ]
That One Guy (profile), 27 May 2016 @ 12:36pm

Stop wasting time
At this point they might as well just add a 'secret interpretation' that makes it so that no government agency is required to follow or be bound by any law that they themselves don't agree with. It's heading that way anyway, why waste time pretending otherwise?
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 1:13pm

Re: Re:
Maybe, but unlike the FBI and NSA, they were not so overwhelmed by data that they could only use it to figure out what happened after the event.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 2:07pm

Re: Re: Typos...and Hilter
The Allies' story of "Hitler" is the projection of their own inner demons upon their victim. This is why the US+UK+Israel's subsequent behavior is so much like their hated "Hitler" - because what the West was fighting was its own rejected inner nature, projected onto the screen they called "Hitler."

That Arthur C. Clarke quote about love and projection is just as true for hatred.

(bonus points for recognizing how this explains the US' relationship to "the terrists")
[ link to this | view in thread ]
David, 27 May 2016 @ 2:21pm

Oh you can't compare that.
The Gestapo threw morals and humanity into the wind because they were the genetically good guys.

The U.S. government agencies throw morals and humanity into the wind because they are the morally and humanely good guys.

The antisemites were doomed to failure because of foregoing chutzpah.
[ link to this | view in thread ]
Uriel-238 (profile), 27 May 2016 @ 3:12pm

"Germans are weak and at fault for not fighting the allied front line to the death."
The American people are not special. They're not better or more noble than anyone else. Nor are we lazier, fatter degenerates any more than anyone else.

We're just people. Homo-sapiens. Naked apes. Any other humans would be under the same circumstances.

We build a civilization with the people we have, not the people we wish we had.

Humans can be deceived. They can be hacked. They can be manipulated. And there is no way around that. We just failed to find, this time around, a way to protect the ordinary citizen against such manipulation.

That's not the fault of the voter. It's the fault of not having done this enough times.

So if you know how to build a better country, go publish. But blaming the common people is just needless scapegoating.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 8:17pm

Re: Stop wasting time
How do you know they haven't already? That's the thing about secret laws and secret interpretations.
[ link to this | view in thread ]
That One Guy (profile), 27 May 2016 @ 9:25pm

Re: Re: Stop wasting time
In a very real sense that's how it is in practice, if perhaps not on paper just yet.

Government agency* does something that they shouldn't, gets caught, and receives a stern talking to about not doing it again.

They do it again, and then some.

Agency gets a really stern talking to this time around, with several wagged fingers to express the displeasure of those dealing with them and an extra stern warning that no, really, stop doing that.

Agency enjoys a hearty laugh and does it again.

Politicians/Tools pretending to be judges, about to deliver a super-extra stern warning remember that they utterly lack any spine required to hold the agency accountable, and rather than admit that they just change the law so that what wasn't allowed before is now legal, making it retroactive while they're at it so that now they don't have to face the fact that they don't actually have any power over those they thought they were providing oversight for.

Now that the thrill of breaking the rules is no longer there the agency immediately starts looking for more rules to break, and the cycle starts anew.

(Of course the above is actually the best case scenario these days, usually they don't even get a warning, instead getting a 'Oh, looks like those laws are in your way, let's just get rid of those shall we?' from the tools that are supposed to be keeping them in check.)

*Pick one, they're pretty much all the same at this point as far as this sort of thing goes.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 11:30pm

Re: Re:
The criminally corrupt American agencies clearly aspire to become a fascist tyranny in my eyes though. What other great anti freedom organizations could they be using as a guide than the gestapo.
[ link to this | view in thread ]
Anonymous Coward, 27 May 2016 @ 11:32pm

Re: "Germans are weak and at fault for not fighting the allied front line to the death."
the moment people started believing the idea "it can't happen here" without acting the part is when they gave up the fight.

The proverbial tree of liberty will be watered with much blood in the near future.
[ link to this | view in thread ]
David, 28 May 2016 @ 2:31am

Re: Re: Re: Typos...and Hilter
The Allies' story of "Hitler" is the projection of their own inner demons upon their victim.

While antisemitism was popular in all of Europe and U.S. in the early 20th century (Dreyfuss affair anyone? Henry Ford rings a bell?), you have to admit that Hitler Germany formed a focusing point for all those inner demons exceeding their expectations. The phenomenon Hitler is a product of his time but he can hardly be called a "victim" for choosing his path.

You'd have been hard put to find any "real" Nazis in post-war Germany rather than a lot of sufferers, a load of coat tailers and opportunists, and a whole bunch of people just following orders.

A few dozen Nazis were executed, and a modern Western democracy was started successfully with all the rest in the West, and a reasonably successful communist state in the East.

What's the lesson?

Nothing good will come of putting a megalomaniac at the top of a functioning administration, society and state.

It's as simple and vulnerable as that.
[ link to this | view in thread ]
Anonymous Coward, 28 May 2016 @ 5:30am

What makes them think they have a right to them

Fucking idiots the lot of them
[ link to this | view in thread ]
Anonymous Coward, 28 May 2016 @ 5:31am

Invading peoples privacy

Dont ever call yourselves the good guys
[ link to this | view in thread ]
Paul, 28 May 2016 @ 5:41am

Fascism at its finest!
God, I'm so glad I had left that country for good while the time was right...
[ link to this | view in thread ]