Privacy Fight Swirls Around FBI's Digital Powers

The Internet Law Resource Center™ is the complete information solution for practitioners in cyberlaw. Follow the latest developments on ICANN’s gTLD program, keyword advertising, online privacy,...

By Kyle Daly

July 18 — Lawmakers on either side of the debate over privacy and national security are battling over whether to let the FBI access internet browsing histories and other data without a warrant, even as the number of legislative days left in the 114th Congress steadily dwindles.

A high-profile clash between Apple Inc. and the FBI over unlocking a terror suspect's iPhone earlier this year reinvigorated debate over drawing lines between privacy and security in an increasingly digital world. Ideologically inspired attacks in Orlando, Fla., and elsewhere and the online activities of radical groups such as the Islamic State group have fueled the debate, as lawmakers try to maintain a balance between equipping law enforcement and preserving civil liberties.

Sens. John McCain (R-Ariz.), John Cornyn (R-Texas) and Richard Burr (R-N.C.) want to let the FBI use national security letters to compel e-mail providers to hand over account information—including names, e-mail and physical addresses, internet protocol addresses and browsing histories—of users under investigation.

The FBI already uses national security letters to force internet service providers, banks, telephone companies and others to divulge information about their customers. The agency ramped up its use of the tool after the Sept. 11 terrorist attacks.

Privacy groups and tech companies, including Facebook Inc. and Google Inc., oppose the language. Backers have tried to attach it to various bills, including an e-mail privacy bill ( S. 356) that died in committee as a result; an intelligence authorization bill ( S. 3017) that made it through the Burr-led Senate Intelligence Committee in June but may never get to the Senate floor; and a fiscal 2017 Commerce-Justice-Science spending measure H.R. 2578). A C-J-S amendment by McCain narrowly lost a procedural vote (21 ECLR 1072, 6/29/16).

Sen. Ron Wyden (D-Ore.), who's leading opposition to the effort in the Senate, told Bloomberg BNA he thinks he has enough support to make sure the idea doesn't become law.

Disagreement on Significance

The two camps disagree about the potential impact of the proposal. Cornyn has characterized it as simply fixing a “scrivener's error” in the law. Burr, speaking in favor of the plan on the Senate floor, said it simply codifies a fragment of FBI authority that technology companies voluntarily complied with until 2010.

However, Neema Singh Guliani, legislative counsel at the American Civil Liberties Union, told Bloomberg BNA that the growth of mobile connectivity and one bit of judicial precedent have made the proposal considerably more far-reaching than it might have been in an earlier era. The U.S. Court of Appeals for the Ninth Circuit ruled in 2014, in a case brought against Facebook and mobile gaming company Zynga Inc., that information including search-related URLs and identifiers tied to social media profiles doesn't count as “content” — which could make such data obtainable under the NSL proposal ( Graf v. ZYNGA Game Network Inc., No. 11-18044 (9th Cir. 2014)).

The FBI still could not access the body of e-mails or text messages under the proposal. Guliani said McCain, Cornyn and Burr's proposal would let the FBI go much further than it could before in creating a full digital profile of a targeted user, including tracking their location by seeing every internet protocol (IP) address used to log into an account from mobile and fixed devices; getting a list of every website visited and online search made; and seeing— if not the actual bodies of e-mails or text messages—then at least the identity of the people the user is corresponding with, the times that messages are sent and the subject line used in the correspondence.

National security letters also typically come with gag orders preventing recipients from telling anyone about them—meaning that users under investigation would never know their information was culled, she said.

“I think that the more members hear and understand the amendment, the more concerns they're going to have,” Guliani said. “Browsing history — it’s the apple pie recipe. When they fully understand how much that reveals about their constituents' lives, I don't think they'll support it.”

The Senate Battles It Out

The procedural vote on the C-J-S spending bill was the first test of the full Senate's interest in the issue —a test that its opponents won by just two votes. The amendment was just one vote shy of the requisite 60 needed to limit debate when Senate Majority Leader Mitch McConnell (R-Ky.) switched his vote in a procedural step toward teeing up another vote. McCain told reporters after the vote that two of four senators absent that day would have supported the amendment.

It's unclear at best whether McConnell can spare any more Senate floor time this year on the issue. Wyden told Bloomberg BNA recently that he thinks the numbers are now on his side. If supporters try to advance the measure again, Wyden is confident that he and his allies would again prevail in a blocking the language. He definitive prediction that he could defeat the law enforcement language, but he made it clear he would work the Senate's procedural levers against it.

“I'm like Yogi Berra, I don't make predictions, especially about the future,” said Wyden, who has worked with Sen. Martin Heinrich (D-N.M.) to convince other lawmakers to oppose the measure. If such an amendment is brought up again, “We'll take 30 hours” to filibuster it to death, he said.

The opposition doesn't fall neatly along party lines. An aide for Sen. Mike Lee (R-Utah), who strongly opposed the national security letter language when it came up as a proposed Senate Judiciary Committee amendment by Cornyn to Lee's e-mail privacy bill (21 ECLR 974, 6/15/16), told Bloomberg BNA that Lee likewise intends to use every available tool to block the proposal.

Lee withdrew his own bill from Senate Judiciary Committee consideration after Cornyn tried to attach the NSL proposal as an amendment. A House counterpart to Lee's bill ( H.R. 699) that did not include the NSL proposal passed on a 419-0 vote (21 ECLR 664, 5/4/16).

Many senators simply didn't realize how much account information the proposal would open up to the FBI, Wyden said. Nor were they aware, he said, of a provision Wyden added to last year's USA Freedom Act that the lets the government—in an emergency—collect information first and go back for a warrant afterward (20 ECLR 835, 6/10/15).

That provision should obviate the need for any measure loosening warrant requirements in the name of national security, Wyden said.

For his part, Cornyn told Bloomberg BNA the day of the cloture vote that he'll keep fighting to get the proposal passed in some piece of legislation or another. “We're not going to give up,” he said. “We'll make sure it's actually signed into law.”

Privacy advocates and other proposal watchers will be in suspense for some time yet: The Senate began a seven-week summer recess July 14, its longest in 60 years. But if and when the bill does return, Wyden is prepared.

“Nobody thought we were going to get 38 votes,” he said. “Senator Heinrich and I are all in. We're going to pull out all the stops.”

To contact the reporter on this story: Kyle Daly in Washington at kdaly@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

For More Information

Information on the McCain amendment is available at: http://src.bna.com/f9K.

Full text of H.R. 2578 as considered by the Senate is available at http://src.bna.com/gSs.

Full text of H.R. 699 as passed by the House is available at http://src.bna.com/e96.

Full text of S. 356 as originally introduced by Lee is available at http://src.bna.com/e97.

Full text of S. 3017 as approved by Senate Intelligence Committee is available at: http://src.bna.com/gSv.

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.