Tech Giants Fight Amendment to Expand FBI Counterintelligence

Ian Lamont/flickr

Tech giants Facebook, Google, and Yahoo are joining trade groups in opposition to an effort to expand the counterterrorism powers of federal investigators.

They are protesting an amendment to a popular email privacy bill set for a Thursday vote in the Senate Judiciary Committee. The companies say it will give the Federal Bureau of Investigation excessive power to compel information about Americans.

Those three major companies added their names to a large collection of privacy and industry groups in a Monday letter sent to senators pushing back against the amendment.

The letter offers new detail about how the proposed language would expand the government’s “ability to access private data without a court order.”

The Computer and Communications Industry Association, a group representing tech giants like Amazon.com and Microsoft, also signed the letter, although those two companies are not individual signatories. Tech and privacy advocacy groups such as the Electronic Frontier Foundation, Access Now, and the Center for Democracy and Technology also signed on.

Last week, privacy advocates began sounding the alarm over the proposal, but the inclusion of big names from the tech industry could change the dynamic in the Senate.

The amendment comes from Senate Majority Whip John Cornyn (R-Texas), who is a sponsor of the bill and has discussed it as a way to placate wary enforcement agencies. He has not said that his proposed language is needed for him to support the bill.

Cornyn’s amendment would state that the Director of the FBI, or someone acting in that capacity, could obtain a suspect’s name, physical address, email address, phone number, device serial number, login history, length of service with a provider, among other identifiable information, without needing a warrant. (The agency wouldn’t be able to seize the contents of those messages).

Under the amendment, the FBI would need to use a separate administrative subpoena process to get such identifiable information, called National Security Letters. This worries the tech community because NSLs don’t require any judicial approval or oversight.

“It would dramatically expand the ability of the FBI to get sensitive information about users’ online activities without court oversight,” the letter said. “The new categories of information that could be collected using an NSL — and thus without any oversight from a judge — would paint an incredibly intimate picture of an individual’s life.”

Location data, email metadata, and browsing history could “reveal details about a person’s political affiliation, medical conditions, religion, substance abuse history, sexual orientation, and, in spite of the exclusion of cell tower information in the Cornyn amendment, even his or her movements throughout the day,” the letter said.

Cornyn’s amendment states that the FBI’s seizures would have to be relevant to an authorized counterterrorism investigation. Privacy buffs are concerned that investigators can a abuse a system allowing a federal agency to search personal information without court approval.

There is an urgency in the campaign against Cornyn’s amendment. Advocates don’t want it to get stuck on a bill that technology and privacy communities have wanted for years. The underlying bill would update the 1986 Electronic Communications Privacy Act to require law enforcement to obtain a warrant before compelling the content of online communications stored for more than 180 days or in a cloud service.

Supporters of the update are optimistic that they can see the legislation through to enactment after roughly five years of lobbying. The House of Representatives passed companion legislation with a unanimous 419-0 vote in late April. Now it could move to the Senate floor. But only if the Cornyn amendment doesn’t get in the way.

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