Battle for Online Privacy

[Virtual_Burlesque]

FBI's "National Security Letters" Threaten Online Speech and Privacy


EFF Urges Appeals Court to Find Secret Subpoena Power Unconstitutional


InternetNew York, N.Y. InfoZine - The Electronic Frontier Foundation, joined by several civil liberties organizations and online service providers, filed a friend-of-the-court brief yesterday in the case of Doe v. Gonzales arguing that National Security Letters (NSLs) are unconstitutional. NSLs are secret subpoenas for communications logs, issued directly by the FBI without any judicial oversight. These secret subpoenas allow the FBI to demand that online service providers produce records of where their customers go on the Web, as well as what they read and with whom they exchange email. The FBI can even issue NSLs for information about people who haven't committed any crimes.

A federal district court has already found NSLs unconstitutional, and the government is now appealing the case. In its brief to the Second Circuit Court of Appeals, EFF argues that these secret subpoenas imperil free speech by allowing the FBI to track people's online activities. In addition, NSLs violate the First and Fourth Amendment rights of the service providers who receive the secret government demands. EFF and its cosigners argue that NSLs for Internet logs should be subject to the same strict judicial scrutiny applied to other subpoenas that may reveal information about the identities of anonymous speakers - or their private reading habits and personal associations.

Yet NSLs are practically immune to judicial review. They are accompanied by gag orders that allow no exception for talking to lawyers and provide no effective opportunity for the recipients to challenge them in court. This secret subpoena authority, which was expanded by the USA PATRIOT Act, could be applied to nearly any online service provider for practically any type of record, without a court ever knowing.

"The Constitution does not allow the FBI to secretly demand logs about Internet users' Web browsing and email history based on vague claims of national security," said EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston. "The district court's decision that National Security Letters are unconstitutional should have been a wake-up call to the House of Representatives, which just voted to renew the PATRIOT Act without adding new checks against abuse."

Although such protections are lacking in the PATRIOT renewal bill that the House of Representatives recently passed, they are included in the Senate bill. It is not yet clear whether those protections will be included in the final bill when it reaches the President's desk.

EFF was joined on the brief by the Center for Constitutional Rights, the Center for Democracy and Technology, the Online Policy Group, Salon Media Group, Inc., Six Apart, Ltd., the US Internet Industry Association, and ZipLip, Inc.

FCC Issues Rule Allowing FBI to Dictate Wiretap-Friendly Design for Internet Services

Tech Mandates Force Companies to Build Backdoors into Broadband, VoIP

Washington, DC - Today the Federal Communications Commission (FCC) issued a release announcing its new rule expanding the reach of the Communications Assistance to Law Enforcement Act (CALEA). The ruling is a reinterpretation of the scope of CALEA and will force Internet broadband providers and certain voice-over-IP (VoIP) providers to build backdoors into their networks that make it easier for law enforcement to wiretap them. The Electronic Frontier Foundation (EFF) has argued against this expansion of CALEA in several rounds of comments to the FCC on its proposed rule.

CALEA, a law passed in the early 1990s, mandated that all telephone providers build tappability into their networks, but expressly ruled out information services like broadband. Under the new ruling from the FCC, this tappability now extends to Internet broadband providers as well.

Practically, what this means is that the government will be asking broadband providers - as well as companies that manufacture devices used for broadband communications – to build insecure backdoors into their networks, imperiling the privacy and security of citizens on the Internet. It also hobbles technical innovation by forcing companies involved in broadband to redesign their products to meet government requirements.

"Expanding CALEA to the Internet is contrary to the statute and is a fundamentally flawed public policy," said Kurt Opsahl, EFF staff attorney. "This misguided tech mandate endangers the privacy of innocent people, stifles innovation and risks the functionality of the Internet as a forum for free and open expression."

At the same time, the Department of Justice (DOJ) is asking airlines to build similar backdoors into the phone and data networks on airplanes. EFF and the Center for Democracy and Technology (CDT) submitted joint comments to the FCC arguing against the DOJ's unprecedented and sweeping new technology design mandates and anticipatory wiretapping system.

The FCC's new proposal to expand CALEA to airline broadband illustrates the fallacy of law enforcement's rationale for its CALEA request. The DOJ takes the position that broadband has "substantially replaced" the local telephone exchange, but this claim is reduced to the point of absurdity aboard an airplane and opens the door for CALEA to cover just about anything.

Contact:

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

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[vogueboy]

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Wow, All I have to say is Thank God I live in a Democracy, where things like this only happened behind the Iron Curtain.

Love your sig line

 

[rgraham666]

What you resist, you become.

 

[Colleen Thomas]

It would seem the lack of judicial oversight would make these letters violation of the illegal search portion of ilegal search and seizure, would it not? And if the logs are handed over, illegal seizure from the ISP?

 

[elsol]

The VOIP ip providers are getting reasonably sized and while not as convenient as cell-phones the service is portable.

I think the FBI is trying to piggie-back unreasonable requests on top of a necessary one.

Sincerely,
ElSol