Federal Officials Debate Rules around FBI Access to E-mail, Online Activities

We live in challenging times in which personal privacy concerns and government national security efforts frequently are at odds. Among the latest debates on this front is whether Congress, at the Justice Department’s urging, should modify the part of the Electronic Communications Privacy Act that sets the terms through which the FBI can obtain select users’ electronic information from Internet service providers, telephone companies, banks, credit bureaus and other businesses with personal records about individuals.

As things stand, service providers are required by federal law to give FBI investigators electronic records at the bureau’s request, which comes in the form of letters from the bureau. There is no need for a judge’s approval, a court order, or even for any suspicion of wrongdoing.

However, the DoJ reportedly is now saying that the current method is confusing and offers the potential to spur unnecessary litigation. That’s because some ISPs have argued they’re not always obligated to comply with these requests from the FBI, which has in recent years been called out for serious and widespread misuse of its collection of such personal information.

But Democrat Patrick Leahy, Senate Judiciary Committee chairman, thinks retooling the current law would be a serious mistake, saying that this course of action would raise privacy and civil liberties concerns.

In other news along these lines, the Electronic Frontier Foundation in mid-July served a motion “to quash dragnet subpoenas that put privacy and anonymity at risk for the operators of dozens of Internet blogs and potentially hundreds of commenters.

“The subpoenas stem from a state lawsuit filed by New York residents Miriam and Michael Hersh alleging a conspiracy to interfere with their business interests,” according to an EFF press release on the matter. “Issued to Google (News - Alert) and Yahoo, the subpoenas demand the identities of users of ten email accounts, operators of 30 blogs and a website that had featured discussions of the plaintiffs among other matters, and the identities of everyone who had ever commented on those sites.”

EFF Senior Staff Attorney Matt Zimmerman comments: "The First Amendment protects individuals' right to speak anonymously and forces litigants to justify any attempts to unmask anonymous critics. Litigants cannot forcibly identify entire communities of online speakers -- which include many speakers who no one would claim did anything wrong -- simply because the litigants are curious."