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Senators Wyden And Heinrich Speak Out Against Expanding FBI's Ability To Warrantlessly Spy On Your Communications

from the don't-allow-it dept

Tue, Jul 12th 2016 9:31am — Mike Masnick

We've been writing for a while now how the FBI has been trying to rewrite a key part of the PATRIOT Act to massively expand its ability to use National Security Letters (NSLs) to get email and browser information with no warrant and no oversight. Despite the fact that the FBI was asking for this just days before the Orlando shooting, right after it, a bunch of Senators, led by John McCain, used the opportunity to fast track that legislative change, cynically pointing to the Orlando shooting as a reason why it's needed (despite it having nothing whatsoever to do with that). That effort failed, but just barely -- and it's expected to be brought up again shortly for another vote.

Senators Ron Wyden and Martin Heinrich are trying to convince people that this is a bad, bad idea. They've written a short but compelling article on how this is a massive abuse of privacy, and why the FBI absolutely does not need this power.

Given what web browsing history can reveal, there is little information that could be more intimate. If you know that a person is visiting the website of a mental health professional, or a substance-abuse support group, or a particular political organization, or a particular dating site, you know a tremendous amount of private and personal information about him or her. That’s what you get when you can get access to their web browsing history without a court order.  

They note that there are real threats, but this change in the law won't help to stop those threats. Indeed, the FBI already has the ability to get this information -- it just needs to submit to a tiny bit of oversight:

But the FBI already has at least two separate ways they can quickly obtain these electronic records with court oversight.   First, under the Patriot Act’s section 215, the FBI can get a court order from the Foreign Intelligence Surveillance Court to obtain a suspect’s electronic records. The president’s surveillance review group, which included former top intelligence officials, said this kind of court oversight should be required for this kind of information.   Second, in emergency situations where the FBI believes it needs to move immediately, it already has the authority to get these records first, and then settle up with the court afterward. This authority comes from section 102 of the USA FREEDOM Act, which is based on language Sen. Wyden authored and we both strongly supported.   

This effort to expand the FBI's surveillance powers should be a non-starter and it's depressing that so many Senators are willing to grant the FBI near total freedom to spy on our electronic records without a warrant. Given the FBI's history of abusing its surveillance powers, sometimes for political gain, shouldn't Congress be restricting such powers, rather than expanding them?

Stay tuned, later today, on the Techdirt Podcast, we'll have Senator Wyden discussing why this is so problematic.

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Filed Under: fbi, martin heinrich, national security letters, nsls, ron wyden, surveillance

18 Comments

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brad (profile), 12 Jul 2016 @ 9:49am

Why does Oregon get the amazing Senator?
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Ninja (profile), 12 Jul 2016 @ 9:53am

Ask them if they are willing to change their names to the new Gestapo and Stasi while at it. You know, more fitting.
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Ninja (profile), 12 Jul 2016 @ 9:54am

Re:
Maybe they know better than throw their votes in the trash bin?
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I.T. Guy, 12 Jul 2016 @ 10:13am

Time to go full time VPN.
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TechDescartes (profile), 12 Jul 2016 @ 10:37am

Age of Technology
This effort to expand the FBI's surveillance powers should be a non-starter and it's depressing that so many Senators are willing to grant the FBI near total freedom to spy on our electronic records without a warrant.
If the FBI were asking to have warrantless permission to search your house, looking through your documents, books, magazines, and newspapers, none of these Senators would approve. But since we're just talking about records "on a computer"—and on a server located in some data center at that—sure, go ahead. Why?

Best explanation: the average age of a U.S. Senator is about 63 years old. Except for those like Ron Wyden, old dogs are not willing to learn new tricks. Until Congress is comprised almost entirely of "digital natives" (or near-digital natives like Martin Heinrich), the FBI can fool them every time with the magic words "on a computer".
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Justme, 12 Jul 2016 @ 10:55am

Chipping away. . .
This is a never ending battle...

We need to create some legal requirement that counters the expansion of these powers, so that every expansion requires the equal expansion of the legal requirement to provide the public access to the agencies own internal information with mandatory criminal penalties for non-compliance.

They talk about balancing security and privacy, we should require them to actually experience that trade off like the rest of us.
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Anonymous Coward, 12 Jul 2016 @ 11:15am

Re:
The downside of our having THE amazing Senator is that when we tell our Senator that we aren't in favor of expanding FBI authority, he replies "I agree" and that's the end of it. We don't have "I am your constituent, represent me" leverage to enlighten any of the other 49 senators.
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Anonymous Coward, 12 Jul 2016 @ 11:24am

Re: Chipping away. . .
The word that you meant to use is ACCOUNTABILITY. Real accountability with teeth, not mamby pamby light touch on the hand kind.
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David, 12 Jul 2016 @ 11:58am

Re: Chipping away. . .
We need to create some legal requirement that counters the expansion of these powers,

It's called "Bill of Rights" and is there already. There is nothing wrong with it, but those who break the oath of office they have sworn on it need to get prosecuted and thrown in jail.

As long as that doesn't happen, it is pointless to create other "legal requirements" that by definition cannot change the significance of what already is the highest law of the land.
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John Fenderson (profile), 12 Jul 2016 @ 3:05pm

Re: Age of Technology
Unwillingness to learn is not a function of age.
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Justme, 12 Jul 2016 @ 7:46pm

Re: Chipping Away. . .
It's called "Bill of Rights" and is there already

But there is no cost to the FBI directly when they degrade the rights afforded citizen's by the bill of rights, I'm sure in their view it's a benefit!

I'm talking about a built in counter force that is automatic and ensures that they also lose the right to keep internal agency information from the public to a degree proportional to the rights they expect the public to give up.

Then balancing privacy and security is more then just talking points, they pay a real price in the same way we do as citizens. I think we will see their idea of what is balanced start to retreat and the continued assault on our right's much less attractive to the agency.
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Whatever, 12 Jul 2016 @ 10:07pm

Wyden?! WYYYYYYYYDEEEEEEEEEEN?!!?!?!?!
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Anonymous Coward, 13 Jul 2016 @ 9:08am

Re:
Bigger question is how California can have someone like Feinstein.
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TechDescartes (profile), 13 Jul 2016 @ 3:40pm

Re: Re: Age of Technology
I wasn't referring to unwillingness as much as to inability, real or imagined. We could throw in ignorance for good measure: if you don't know you need to learn, it doesn't matter whether you are willing or able.
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John Fenderson (profile), 13 Jul 2016 @ 4:24pm

Re: Re: Re: Age of Technology
Just the same, this also isn't a function of age. Admittedly, this is purely subjective observation rather than a scientific claim, but in my experience over the years people's mental habits seem to set around 20-25 years of age. Past that threshold, the ones who are mentally agile and curious seem to remain so their entire lives, as do ones who are not.

The idea that you can predict the mental agility of someone from their age seems to have little basis.

What is true, however, is that as people age they tend to specialize more in where they spend their mental energy. Younger people are still sampling all the possibilities before them to find what they like. Older people are more likely to have found it.

So a senator, for instance, may have great mental agility and stay on the cutting edge in terms of being a senator, but has little time for specialties outside of that.
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Wendy Cockcroft, 14 Jul 2016 @ 5:30am

Re: Re:
You may find that campaigning to get people to vote for someone else instead might change some attitudes. Yes, it's a lot of work but once you hit the magic number at which these people feel threatened it's amazing how quickly their attitudes change. One vote won't do much but if you can persuade enough people to vote with you, change will come.
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Wendy Cockcroft, 14 Jul 2016 @ 5:34am

Re: Re:
Binary politics in a first-past-the-post electoral system.

We need to encourage people to consider voting third party in enough numbers to actually get a third party politician elected. This means breaking the chains of ideological echo chambers that keep people locked into the partisan tinfoil hat-ery we often see here in the comments. The only way I know of doing this is to challenge the tendency to ricochet from extreme to extreme and encourage people to actually consider other possibilities. Sometimes it works, but if you want change, stop doing the same damn thing over and over again and expecting a different result.
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The Wanderer (profile), 14 Jul 2016 @ 6:18am

Re: Re: Re:
The problem is, in a first-past-the-post electoral system, voting third-party not only is doomed in the long run (because the structure of the system naturally devolves to a two-party system) but improves the odds of whichever of the two existing parties you agree with less.

IMO, the first step towards breaking the two-party deadlock is - and has to be - switching away from single-choice first-past-the-post voting to a ranked-choice voting method which satisfies the Condorcet criteria... and the only way we're going to have a chance of getting that implemented is from the bottom up: starting with municipalities and counties, all across the nation, then moving up to the state and eventually the federal level.

With that done, a candidate who backs possibilities not consistent with the usual partisan extremes will be able to get better traction even among the existing divided-and-partisan electorate, simply because the people who do already agree with such a candidate will be able to do so without "wasting their votes" - and the resulting increased diversity of views in elected politicians will itself serve to help break the ideological echo chambers you're talking about.
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