WASHINGTON — President Obama is preparing a package of intelligence reforms that will probably put a public advocate for the first time in the secret court that approves surveillance practices and remove a controversial telephone records database from direct government control, aides said.
With plans to unveil the changes days before the State of the Union address on Jan. 28, key presidential advisors are looking skeptically at a separate proposal to require a federal judge to approve each use of a “national security letter” except in emergencies, however.
Law enforcement officials issue the letters, a little-known form of administrative subpoena that doesn’t require a warrant, to secretly compel disclosure of otherwise private customer records by Internet providers, financial institutions, telephone and credit companies, and other services and organizations.
The FBI has issued more than 123,000 such letters for people in or from the U.S. since 2004, federal records show, including more than 15,000 in 2012, the last year for which data are available.
I applaud the effort to require warrants to search email. Even if it’s old email. Kudos to Sen. Pat Leahy. If I had my way significant parts of the Patriot act would have had their sunset and began the trip into history along with Osama Bin Laden. It’s a rare thing for liberties or civil rights to be restored without far more drama than like a bill going through due process. Please contact your representatives and encourage this requirement.
A Senate committee on Thursday unanimously backed sweeping digital privacy protections requiring the government, for the first time, to get a probable-cause warrant to obtain e-mail and other content stored in the cloud.
The measure, sponsored by Sen. Patrick Leahy (D-Vermont), the head of the Senate Judiciary Committee, amends the 1986 Electronic Communications Privacy Act. The amendment would nullify a provision that allows the government to acquire a suspect’s e-mail or other stored content from an internet service provider without showing probable cause that a crime was committed.
The development comes as e-mail privacy is again in the spotlight after FBI investigators uncovered an affair between then-CIA chief David Petraeus and his biographer Paula Broadwell after gaining access to e-mail accounts used by Broadwell.
Currently, the government can obtain e-mail without a warrant as long as the content has been stored on a third-party server for 180 days or more, and only needs to show, often via an administrative subpoena, that it has “reasonable grounds to believe” the information would be useful in an investigation.
We Don’t Need No Stinking Warrant: The Disturbing, Unchecked Rise of the Administrative Subpoena
By David Kravets
When Golden Valley Electric Association of rural Alaska got an administrative subpoena from the Drug Enforcement Administration in December 2010 seeking electricity bill information on three customers, the company did what it usually does with subpoenas — it ignored them.
But by law, utilities must hand over customer records — which include any billing and payment information, phone numbers and power consumption data — to the DEA without court warrants if drug agents believe the data is “relevant” to an investigation. So the utility eventually complied, after losing a legal fight earlier this month.
Meet the administrative subpoena (.pdf): With a federal official’s signature, banks, hospitals, bookstores, telecommunications companies and even utilities and internet service providers — virtually all businesses — are required to hand over sensitive data on individuals or corporations, as long as a government agent declares the information is relevant to an investigation. Via a wide range of laws, Congress has authorized the government to bypass the Fourth Amendment — the constitutional guard against unreasonable searches and seizures that requires a probable-cause warrant signed by a judge.
In fact, there are roughly 335 federal statutes on the books (.pdf) passed by Congress giving dozens upon dozens of federal agencies the power of the administrative subpoena, according to interviews and government reports. (.pdf)