by Clifford Cunningham
The Obama administration is pushing Congress to amend existing surveillance laws to give the FBI unquestionable authority to access a person’s browser history without a warrant, a move Judge Andrew Napolitano slammed as “a major step towards a police state.”
Under existing law, the FBI and National Security Agency (NSA) are required to obtain a surveillance warrant from the Foreign Intelligence Surveillance Court (FISA) before accessing an individual’s electronic records.
However, the FBI is able to bypass the court system and access information relating to an individual’s phone records through the use of a “National Security Letter.”
“NSLs are shadowy administrative subpoenas for information issued by the FBI, whose authority to use them was bolstered by the Patriot Act in 2001,” as reported by US News and World Report. “The requests often are accompanied by a gag order disallowing the company from which information is sought from discussing it.”
FBI Director James B. Comey has requested Congress pass legislation to amend a “typo” in the Electronic Communications Privacy Act that, he claims, has allowed some tech companies to refuse to provide data that Congress originally intended them to hand over to the FBI.
The new legislation, if passed, would allow the FBI to access an individual’s browser history by using a National Security Letter, rather than a warrant from the FISA Court. A National Security Letter only requires approval from the special agent in charge of a FBI Field Office.
Appearing before the Senate Intelligence Committee in February, Comey claimed the inability to obtain electronic information without a NSL affects the FBI’s work, “in a very, very big and practical way.” The Intelligence Authorization Act of 2017, with the NSL amendment attached, will now head to the full Senate for a vote.
Senator Ron Wyden (D-Ore.) was the sole member of the Intelligence Committee in opposition to the amendment.
“This bill takes a hatchet to important protections for Americans’ liberty,” he said. “This bill would mean more government surveillance of Americans, less due process, and less independent oversight of US intelligence agencies.”
Texas Republican Senator John Cornyn is a co-sponsor of a similar amendment that is set to be voted on by the Senate Judiciary Committee on Thursday; He has argued a “scrivener’s error” in the law is “needlessly hamstringing our counterintelligence and counterterrorism efforts.”
A coalition of tech firms and privacy advocates submitted a letter to the members of the Senate Judiciary Committee expressing concern over the amendment and the threat it poses to civil liberties.
“This expansion of the NSL statute has been characterized by some government officials as merely fixing a ‘typo’ in the law,” they wrote. In reality, however, it would dramatically expand the ability of the FBI to get sensitive information about users’ online activities without court oversight.”
Appearing with Shepard Smith on Fox News, Judge Andrew Napolitano expressed anger over the amendment and warned the American people to wake up to the ongoing erosion of their civil liberties.
“It gets worse, it never gets better no matter who is in the White House, no matter which party controls the Congress,” he said. “The American people should wake up….This is a major step towards a police state.”
“It’s done in the name of, it’s always done in the name of keeping us safe. Who or what will keep our liberties safe?”
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