Obama Demands Access to Internet Records, in Secret, and Without Court Review

The Obama administration is seeking authority from Congress that would compel internet service providers (ISPs) to turn over records of an individual’s internet activity for use in secretive FBI probes.

In another instance where Americans are urged to trust their political minders, The Washington Post reported last month that “the administration wants to add just four words–’electronic communication transactional records’–to a list of items that the law says the FBI may demand without a judge’s approval.”

Under cover of coughing-up information deemed relevant to espionage or terrorism investigations, proposed changes to the Electronic Communications Privacy Act (ECPA) would greatly expand the volume of private records that can be seized through National Security Letters (NSLs).

Constitution-shredding lettres de cachet, NSLs are administrative subpoenas that can be executed by agencies such as the FBI, CIA or Defense Department, solely on the say so of supervisory agents.

The noxious warrants are not subject to court review, nor can a recipient even disclose they have received one. Because of their secretive nature, they are extremely difficult to challenge.

Issued by unaccountable Executive Branch agents hiding behind a façade of top secret classifications and much-ballyhooed “sources and methods,” NSLs clearly violate our constitutional rights.

The fourth amendment unambiguously states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

However, in “new normal” America constitutional guarantees and civil rights are mere technicalities, cynical propaganda exercises jettisoned under the flimsiest of pretexts: the endless “War on Terror” where the corporate state’s praetorian guards work the “dark side.”

Once served, firms such as telecommunication providers, banks, credit card companies, airlines, health insurers, video rental services, even booksellers and libraries, are compelled to turn over what the secret state deem relevant records on targets of FBI fishing expeditions.

If burdensome NSL restrictions are breeched for any reason, that person can be fined or even jailed if gag orders built into the draconian USA Patriot Act are violated.

However, even the Patriot Act’s abysmally lowered threshold for seizing private records specify that NSLs cannot be issued “solely on the basis of activities protected by the first amendment of the Constitution of the United States.”

Despite these loose standards, congressional investigators, journalists and civil liberties watchdogs found that the FBI violated the rules of the road, such as they are, thousands of times. Between 2003-2006, the Bureau issued 192,499 NSLs, according to current estimates, the FBI continues to hand out tens of thousands more each year.

According to a May 2009 Justice Department letter sent to the House and Senate Judiciary Committees, “in 2007, the FBI made 16,804 NSL requests” and followed-up the next year by issuing some “24,744 NSL requests … to 7,225 United States persons.”

The Justice Department’s Office of the Inspector General (OIG) issued a 2007 report which concluded that the Bureau had systematically abused the process and exceeded their authority. A follow-up report published by the OIG in January found that serious civil liberties breeches continue under President Obama.

This is hardly surprising given the track record of the Obama administration.

“Reform,” Obama-Style

The latest White House proposal would hand the secret state unprecedented access to the personal communications of every American.

What Bushist war criminals did secretly, Obama intends to do openly and with the blessings of a supine Congress. As constitutional scholar Glenn Greenwald points out, “not only has Obama … blocked any reforms, he has taken multiple steps to further expand unaccountable and unchecked surveillance power.”

Nowhere is this more apparent than by administration moves to “reform” ECPA.

While the Justice Department claims their newly sought authority does not include “‘content’ of email or other Internet communications,” this is so much eyewash to deceive the public.

In fact, the addition of so-called transactional records to the volume of files that the state can arbitrarily seize, would hand the government access to a limitless cache of email addresses, dates and times they were sent and received, and a literal snap-shot on demand of what any user looks at or searches when they log onto the internet.

As I have pointed out before, most recently last month when I described the National Security Agency’s PERFECT CITIZEN program, the roll-out of privacy-killing deep-packet inspection software developed by NSA already has the ability to read and catalogue the content of email messages flowing across private telecommunications networks.

Former Bushist Homeland Security official, Stewart A. Baker, applauded the proposal and told the Post, “it’ll be faster and easier to get the data.” Baker touts the rule change as a splendid way for ISPs to hand over “a lot more information to the FBI in response to an NSL.”

While the Post claims “many internet service providers” have “resisted the government’s demands to turn over electronic records,” this is a rank mendacity.

A “senior administration official,” speaking anonymously of course, told the Post that “most” ISPs already “turn over such data.” Of course they do, and at a premium price!

Internet security analyst Christopher Soghoian has documented that just one firm, Sprint Nextel, routinely turned over their customer’s geolocation data to law enforcement agencies and even built them a secure web portal to do so, eight million times in a single year!

Soghoian wrote last year that “government agents routinely obtain customer records from these firms, detailing the telephone numbers dialed, text messages, emails and instant messages sent, web pages browsed, the queries submitted to search engines, and of course, huge amounts of geolocation data, detailing exactly where an individual was located at a particular date and time.”

As a public service, the secrecy-shredding web site Cryptome has published dozens of so-called compliance guides for law enforcement issued by a plethora of telecoms and ISPs. Readers are urged to peruse Yahoo’s manual for a taste of what these grifters hand over.

While the administration argues that “electronic communication transactional records” are the “same as” phone records that the Bureau can obtain with an NSL, seizing such records reveal far more about a person’s life, and political views, than a list of disaggregated phone numbers. This is precisely why the FBI wants unlimited access to this data. Along with racial and religious profiling, the Bureau would be handed the means to build a political profile on anyone they deem an “extremist.”

That “senior administration official” cited by the Post claims that access to a citizen’s web history “allows us to intercede in plots earlier than we would if our hands were tied and we were unable to get this data in a way that was quick and efficient.”

Perhaps our “change” administration has forgotten a simple historical fact: police states are efficient. The value of privacy in a republic, including whom one communicates with or where one’s interests lie, form the core values of a democratic order; principles sorely lacking in our “new normal” Orwellian order!

In a small but significant victory, the ACLU announced this week that “the FBI has partially lifted a gag it imposed on American Civil Liberties Union client Nicholas Merrill in 2004 that prevented him from disclosing to anyone that he received a national security letter (NSL) demanding private customer records.”

In a statement to reporters, Merrill said: “Internet users do not give up their privacy rights when they log on, and the FBI should not have the power to secretly demand that ISPs turn over constitutionally protected information about their users without a court order. I hope my successful challenge to the FBI’s NSL gag power will empower others who may have received NSLs to speak out.”

Despite this narrow ruling, the FBI intends to soldier on and the Obama administration is hell-bent on giving the Bureau even more power to operate in the dark.

Commenting on the Merrill case, The Washington Post reported FBI spokesperson Mike Kortan claimed that NSL “secrecy is often essential to the successful conduct of counterterrorism and counterintelligence investigations” and that public disclosure “may pose serious risks to the investigation itself and to other national security interests.”

Those “other” interests, apparently, do not extend to the right to express one’s views freely, particularly when they collide with the criminal policies of the secret state.

Tom Burghardt is a researcher and activist based in the San Francisco Bay Area. His articles are published in many venues. He is the editor of Police State America: U.S. Military "Civil Disturbance" Planning, distributed by AK Press. Read other articles by Tom, or visit Tom's website.

15 comments on this article so far ...

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  1. MichaelKenny said on August 13th, 2010 at 10:11am #

    Snooping is justified by terrorism. Terrorism is caused by Israel’s existence. No Israel, no terrorism. No terrorism, no snooping. Join the dots! Americans, and most of the world with them, are simply paying the price for allowing their country to be hijacked by the Israel Lobby.

  2. hayate said on August 13th, 2010 at 11:01am #

    “The Obama administration is seeking authority from Congress that would compel internet service providers (ISPs) to turn over records of an individual’s internet activity for use in secretive FBI probes.”

    Apparently massa in tel aviv wants to know who is anti-zionist and who isn’t.

  3. Hue Longer said on August 16th, 2010 at 5:55am #

    hayate, I’m sure wanting know who is anti-zionist is a part of the things to know with or without tel aviv giving orders but I’m also sure there’s plenty more which has little to do with zionism…the USA power config minus zionism isn’t exactly a friendly group of freedom lovers

  4. PatrickSMcNally said on August 16th, 2010 at 6:27am #

    > I’m also sure there’s plenty more which has little to do with zionism

    With capitalsim in crisis there is definitely a strong pressure coming from all the top layers to make certain to keep tabs on people. Israel-firsters will likely latch onto that as an excuse for another round-up of “antisemites,” but I agree that there’s more involved.

  5. hayate said on August 16th, 2010 at 7:30am #

    There is more involved than just zionists, of course, but zionists are the current leaders. They have the most power, though ironically, their power hold is the most fragile of the capitalists, so they also are the most insecure. This is why zionists/israel is so obsessed with maintaining a massive evesdropping/data collection bank on everyone, not just those who MIGHT be a threat to them at some time. The rest of the non-zionist capitalist oligarchies are just as repulsive as zionists, but they are more divergent and not as effective. They never managed to control their opposition as well as the zionist have co-opted capitalist opposition.

  6. PatrickSMcNally said on August 16th, 2010 at 7:40am #

    > There is more involved than just zionists, of course, but zionists are the current leaders.

    When Bush was in office, I would have agreed with that straight-up-and-away. I don’t regard Obama that way, although I’ll be eating those words if he should ever launch a real military attack on Iran. But I don’t think he will. My impression, and that’s all it is, is that the words thrown around lately about Iranian nooks have more to do with Obama’s attempt to appease the Israel lobby with some smoke and mirrors, but not to actually do very much.

  7. hayate said on August 16th, 2010 at 8:11am #

    PatrickSMcNally

    Not all zionist oligarchs want an attack on Iran, just like not all non-zionist oligarchs want to avoid one. You can see that about the zionists with their “progressive” moles pushing for regime change in Iran (the green coup attempt) while being adamantly opposed to an outright military attack. Example: the site mondoweiss, a claimed progressive Jewish anti-zionist site by its 2 owners. They provide a lot of good info opposing zionism and its control of things, and on israeli criminality. They strongly oppose a military attack on Iran. But last summer they put out the same zionist propaganda about the mossad/cia “color revolution” against Iran as the zionist run media did.

    An attack on Iran is a tactic to control Iran. Not a very effective one, as many have pointed out why, both zionist and non-zionist and within the establishment and outside it. There is a lot opposition to this war from all sectors. The one thing they all do agree on is that Iran must be brought back under western capitalist oligarchic control. This, incidentally is why zionist and non-zionist fronts posing as left/progressives supported the coup attempt, but oppose outright war.

    As for obama opposing the israel lobby, he’s part of it. Has been since college. He is the “tel avivian candidate”. That doesn’t mean he supports a war with Iran, or opposes it, as the israel lobby has both factions. Whatever the zionist establishment decides, obama will go along. He would have done the same things bush did had he been prez then. He’s doing the same things bush would be doing right now. There has been no real change in american policies, both foreign and domestic.

  8. PatrickSMcNally said on August 16th, 2010 at 10:51am #

    > just like not all non-zionist oligarchs want to avoid one.

    So far at least, every source of advocacy of attack on Iran which I have found has been closely tied in with Israel. I agree that not every champion of Israel has been so crazy as to advocate “bomb, bomb, bomb Iran.” But I haven’t seen any “non-zionist oligarchs” calling for that. Have you? Who? Where?

    > But last summer they put out the same zionist propaganda about the mossad/cia “color revolution” against Iran as the zionist run media did.

    i won’t try making guesses about what the site put up without eventually checking it myself, but large portions of the Iranian populace are totally disgusted with the ayatollah regime. I’m undecided about which way did the exact vote go last year simply because there was no valid way of checking vote counts. It may be that the official candidate did get more votes, or it may be the opposition which won more. I don’t have enough information to say. But either way it was obvious that a very proportion of young people were fed up with being ruled by Mullahs.

    > The one thing they all do agree on is that Iran must be brought back under western capitalist oligarchic control.

    Of course, and that was true with regards to Iraq as well. The only thing which made the real Israel lobby noteworthy in regards to Iraq was that they were the ones pushing for a military occupation of Iraq. Likewise, the only thing which makes them notable in relation to Iran is that all of the hard-nosed demands for military action now against Tehran have come from Israel-supporters.

    > As for obama opposing the israel lobby, he’s part of it.

    This is more on the opinionated level so I guess it’s better to just agree to disagree. I certainly did not vote for the man, nor have I ever voted for a Democrat (or Republican for that matter). But my impression so far has been somewhat different.

  9. teafoe2 said on August 16th, 2010 at 11:41am #

    Patrick, you are IMHO a very smart fellow. But IMHO hayate’s take is the more perceptive this time.

    also, re trashing of US Constitution, militarization etc:

    The previously hegemonic Rockefeller-led WASP traditional capitalist oligarchy had ruled the US and the empire for a long time without serious problems until confronted by the combined challenges of the Cowboy network and the ZPC. The WASP oligarchs seem to have been much more concerned about maintaining a veneer of “democracy”, about the legitimacy of the system in the eyes of the ruled.

    The current bunch, of which Obambam is the figurehead, seem to have a different attitude, which seems traceable to the influence of Strauss, & Jabotinsky, and is pre-figured in the Torah and the Talmud as well as much Rabbinical writing. but now I have to mow the lawn.

  10. Deadbeat said on August 16th, 2010 at 12:02pm #

    hayate writes …

    There is more involved than just zionists, of course, but zionists are the current leaders. They have the most power, though ironically, their power hold is the most fragile of the capitalists, so they also are the most insecure

    TOTALLY AGREE! Which is why I’ve long advocated confronting Zionism as the best front of attack. Zionism is weaker than Capitalism because Zionism is a RACIST ideology and there is a general world wide disdain against racism.

    The failure of the Left to confront this racist ideology and to make excuses for it is the obvious hypocrisy and why I have very little trust in the Left. It is THE litmus test.

  11. Deadbeat said on August 16th, 2010 at 12:04pm #

    Tf2 writes …

    until confronted by the combined challenges of the Cowboy network and the ZPC.

    What is the “Cowboy network”?

  12. PatrickSMcNally said on August 16th, 2010 at 12:19pm #

    > The WASP oligarchs seem to have been much more concerned about maintaining a veneer of “democracy”,

    That much, however, can be properly explained by the decline of capitalism. When capitalism is generating prosperity by massive growth, it’s a lot easier to maintain the appearance of democracy. There’s no reason to think that has anything in particular to do with WASPs or anyone else. If economic growth rates could be restored to the way they were in the 1950s then more Israel-supporters would likely steer towards a liberal approach.

    > What is the “Cowboy network”?

    That was a term used to refer to oil-related wealth which grew up around Texas after World War II. Some authors used to speak of the “Yankees” to mean the eastern financial establishment, and then counterposed the Yankees and Cowboys as rivals. As a division within the US ruling class, this runs orthogonal (in my opinion) to Zionist issues. Cheerleaders of Israel have included both Yankees and Cowboys in various places, and distrust of the Israel lobby can likewise be found among both the Yankee and Cowboy factions of the upper rich.

  13. PatrickSMcNally said on August 16th, 2010 at 12:33pm #

    “If economic growth rates could be restored to the way they were in the 1950s then more Israel-supporters would likely steer towards a liberal approach.”

    I probably should have added that in the old days when there was an economic recession one could often expect to see an uptick in funding for the KKK. Rackets like the Ku Klux Klan used to be a common way of diverting the masses during a recession. It was only because of the prolonged prosperity which followed World War II that the civil rights movement was able to move along the way it did.

  14. teafoe2 said on August 16th, 2010 at 2:06pm #

    I said: ” The WASP oligarchs seem to have been much more concerned about maintaining a veneer of “democracy”,”

    P. McN responded: “That much, however, can be properly explained by the decline of capitalism. When capitalism is generating prosperity by massive growth, it’s a lot easier to maintain the appearance of democracy. There’s no reason to think that has anything in particular to do with WASPs or anyone else. If economic growth rates could be restored to the way they were in the 1950s then more Israel-supporters would likely steer towards a liberal approach.”

    The last sentence is A) pure speculation, guesswork based on mind reading; B)a total misread of what motivates Israel-supporters.

    I reject the rest of the argument as mechanical economism, which tries to account for all political phenomena by assuming a direct, automatic correspondence between economic developments and interests. The State Apparatus is to some degree “autonomous”, cf. all the British Trotskyists who’ve written on “The Relative Autonomy of the State”.

    I mention them to demonstrate that I don’t prejudge anyone’s ideas because of some expression of affinity with a particular “school” of Marxism. Everybody has to start somewhere; like nationality and religious preference it usually depends on where you were born and what ideology came across you first.

    But that said, I can’t help observing what seems to me a pattern I’ve learned to associate with Trotsky-influenced Marxists. I’ll no doubt find opportunity to expand on that later.

  15. PatrickSMcNally said on August 16th, 2010 at 2:28pm #

    > The last sentence is A) pure speculation, guesswork based on mind reading; B)a total misread of what motivates Israel-supporters.

    I actually base that sentence much more on the documentable fact that the growth of influence in the USA occurred under conditions of economic prosperity which allowed for a wide raising of liberal reforms. The reason that it was possible to abolish quotas which used to restrict the numbers of Jews in certain areas was because of the great prosperity that followed after World War II. This would not have been accomplished if the Depression had returned (as many people feared it would). A vibrant economy allowed one to justify calls for more freedom, which were advantageous to Jews.

    > I reject the rest of the argument as mechanical economism, which tries to account for all political phenomena by assuming a direct, automatic correspondence between economic developments and interests.

    That statement would be a bit of a caricature, but you were already drawing a caricature with a statement like ‘WASP oligarchs seem to have been much more concerned about maintaining a veneer of “democracy”…’ In many respects we have much more of a veneer of democracy than people living a hundred years ago did. That doesn’t mean that I would want to defend anything that is being put through by rulers today.

    > I’ll no doubt find opportunity to expand on that later.

    I’ll just have to wait then.