Ron Wyden: Obtaining ECTRs without a Warrant Is Almost Like Spying on Someone’s Thoughts

As a number of outlets have reported, Ron Wyden has placed a hold on the Intelligence Authorization in an attempt to thwart FBI’s quest to be able to obtain Electronic Communication Transaction Records with just a National Security Letter.

But Wyden’s released statement on that hold differs in emphasis from what he said in his Senate address announcing the hold yesterday. The statement describes how all toll records — from emails, texts, or web browsing — can infringe on privacy.

The fact of the matter is that ‘electronic communication transaction records’ can reveal a great deal of personal information about individual Americans.  If government officials know that an individual routinely emails a mental health professional, or sends texts to a substance abuse support group, or visits a particular dating website, or the website of a particular political group, then the government knows a lot about that individual.  Our Founding Fathers rightly argued that such intrusive searches should be approved by independent judges.

But in his floor statement, Wyden went on at length about the particular threat posed by obtaining web browsing history (this starts after 4:40).

For example, the National Security Letters could be used to collect what are called Electronic Communication Transaction Records. This would be email and chat records and text message logs, and in particular, Mr. President, and I’ve had Senators come up to me to ask me about whether this could be true, folks at home this weekend, when I was out and responding to questions about this, people asked, “Does this really mean that the government can get the Internet browsing history of an individual without a warrant even when the government has the emergency authority if it’s really necessary?”

And the answer to that question, Mr. President, is yes, the government can. The government can get access to web browsing history under the Intelligence Authorization legislation, under the McCain amendment, and they can do it without getting a warrant, even when the government can go get it without a warrant when there is an emergency circumstance.

Now the reality is web browsing history can reveal an awful lot of information about Americans. I know of little information, frankly Mr. President, that could be more intimate than that web browsing history. 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 — say — a particular dating site, you know a tremendous amount of private and personal and intimate information about that individual — that’s what you get when you can get access to their web browsing history without a warrant, even when the government’s interest is protected, as I’ve said, in an emergency.

The reality is getting access to somebody’s web browsing history is almost like spying on their thoughts. This level of surveillance absolutely ought to come with court oversight, and as I’ve spelled out tonight, that is possible in two separate ways — the traditional approach with getting a warrant, and then under Section 102, which I wrote as part of USA Freedom Act, the government can get the information when there’s an emergency and come back later after the fact and settle up.

Wyden’s statement makes a few other things clear. First, by focusing on the emergency provision of USA Freedom Act, Wyden illustrates that the FBI is trying to avoid court oversight, not so much obtain records quickly (though there would be more paperwork to a retroactive Section 215 order than an NSL).

That means two things. First, as I’ve noted, FBI is trying to avoid the minimization procedures the FISC spent three years imposing on FBI. Right now, we should assume that FISC would prohibit FBI from retaining all of the data it obtains from web searches, but if it moved (back) to NSL collection it would have no such restriction.

The other thing obtaining ECTRs with NSLs would do, though, is avoid a court First Amendment review, which should be of particular concern with web search history, since everything about web browsing involves First Amendment speech. Remember, a form of emergency provision (one limited to Section 215’s phone chaining application) was approved in February 2014. But in the September 2014 order, the FISC affirmatively required that such a review happen even with emergency orders. A 2015 IG Report on Section 215 (see page 176) explains why this is the case: because once FISC started approving seeds, NSA’s Office of General Counsel stopped doing First Amendment reviews, leaving that for FISC. It’s unclear whether it took FISC several cycles to figure that out, or whether they discovered an emergency approval that infringed on First Amendment issues. Under the expanded emergency provision under USAF, someone at FBI or DOJ’s National Security Division would do the review. But FBI’s interest in avoiding FISC’s First Amendment review is of particular concern given that FBI has, in the past, used an NSL to obtain data the FISC refused on First Amendment grounds, and at least one of the NSL challenges appears to have significant First Amendment concerns.

In the Senate yesterday, Senator Wyden strongly suggested the FBI wants this ECTR provision so it can “spy[] on their thoughts” without a warrant. We know from other developments that doing so using an NSL — rather than an emergency Section 215 order — would bypass rigorous minimization and First Amendment review.

In other words, the FBI wants to spy on — and then archive — your thoughts.

Senate Narrowly Avoids Voting Themselves to become Typos

The McCain (Cornyn) amendment to the Judiciary Appropriations bill that would let them get Electronic Communication Transaction Records with a National Security Letter just narrowly failed to get cloture, with Dan Sullivan flipping his vote to yes near the end but Mike Crapo, a likely no vote, not voting. The final vote was 59-37.

The floor debate leading up to the vote featured a few notable exchanges. Richard Burr was an absolutely douchebag, saying Ron “Wyden is consistently against providing LE the tools it needs to defend the American people.” He did so in a speech admitting that, “My colleague says this wouldn’t stop SB or Orlando. He’s 100% correct.”

Burr also insisted that we can’t let the Lone Wolf provision, which allegedly has never been used, expire. It was extended just last year and doesn’t expire until 2019.

More interesting though was the debate between Burr and Leahy over whether the FBI can’t obtain ECTRs because of a typo in the law as passed in 1993. Leahy basically described that Congress had affirmatively decided not to include ECTRs in NSLs (implicit in this, Congress also did not decide to include it in the 2001 expansion). Burr claimed that Congress meant to include it but didn’t in some kind of oversight.

Here’s how Mazie Hirono and Martin Heinrich described the debate in the report on the Intelligence Authorization, which has a version of the ECTR change.

The FBI has compared expanding these authorities to fixing a “typo” in the Electronic Communications Privacy Act (ECPA).

However, during consideration of ECPA reform legislation in 1993, the House Judiciary Committee said in its committee report that “Exempt from the judicial scrutiny normally
required for compulsory process, the national security letter is an extraordinary device. New applications are disfavored.”

The House Judiciary Committee report also makes clear that the bill’s changes to Section 2709(b) of ECPA were a “modification of the language originally proposed by the
FBI.”

This does not support claims that the removal of the ECTR language was a “typo.”

Burr effectively argued that because law enforcement wanted ECTRs to be included back in 1993, they were meant to be included, and Congress’ exclusion of them was just a typo.

In short, a member of the Senate just argued that if Congress affirmatively decides not to capitulate to every demand of law enforcement, it must be considered a “typo” and not legally binding law.

For the moment, the Senate voted down making itself a “typo,” but Mitch McConnell filed a motion to reconsider, meaning he can bring the vote back up as soon as he arm twists one more vote.