Bill would expand FBI’s warrantless access to online records, senators warn

Two US senators have warned that a new bill would vastly expand the FBI’s warrantless access to Americans’ online records.

Although the text of the 2017 intelligence authorization bill is not yet available to the public, two members of the Senate intelligence committee have said the bill could expand the remit of a nonjudicial subpoena called a National Security Letter (NSLs) to acquire Americans’ email records, chat or messaging accounts, account login records, browser histories and social-media service usage.

While NSLs typically apply to phone or banking records and email addresses, the bill, which cleared the Senate intelligence panel on Tuesday by a 14-1 vote, appears to change the scope of the longstanding term “electronic communications transaction records”.

Senator Ron Wyden criticized the change as a sweeping expansion of warrantless surveillance.

“While this bill does not clearly define ‘electronic communication transaction records’, this term could easily be read to encompass records of whom individuals exchange emails with and when, as well as their login history, IP addresses, and internet browsing history,” Wyden, a Democrat from Oregon who voted against the bill, told the Guardian.

Wyden’s colleague on the panel, Democrat Martin Heinrich of New Mexico, said in a Thursday statement that the measure represents “a massive expansion of government surveillance that lacks independent oversight and potentially gives the FBI access to Americans’ email and browser histories with little more than the approval of a manager in the field”.

Heinrich voted for the bill because of its other provisions. His office said he would seek to remove the NSL expansion when it comes to the Senate floor.

“The FBI has not made a convincing case that it needs any process other than the one that already exists, especially one that freely allows the FBI access to law-abiding Americans’ emails and web activity,” Henrich said.

Obscure before the 9/11 attacks, the FBI has come to rely significantly on NSLs, which come exclusively from the executive branch, and not with a judge’s approval. They are served not to the targets of investigation but to communications providers or banks, and come with gag orders preventing the recipient from disclosing anything about them.

A 2014 panel advising Barack Obama on surveillance found the FBI typically issues an average of 60 NSLs each day, or 21,900 annually, up from 8,500 in 2000. The office of the director of national intelligence and the justice department recently reported that the FBI issued 12,870 NSLs in 2015, representing 48,642 warrantless requests for information.

Last year, a recipient of an NSL won a decade-long fight to disclose aspects of the subpoena his web-hosting company received. The NSL served to Nicholas Merrill in 2004 included demands for cellular location information and “any other information which you consider to be an electronic communication transactional record” – an indication that the phraseology in the fiscal 2017 intelligence bill has direct NSL precedent.

In Senate testimony earlier this year, FBI Director James Comey said that a “typo” in a 1993 statute concerning electronic communications transaction records was leading “some companies” to resist providing the FBI with “ordinary transaction records that we can get in most contexts with a non-court order”. He called a legislative fix a high legislative priority for the bureau.

A statement released by the Senate panel’s leadership, Republican Richard Burr of North Carolina and Democrat Dianne Feinstein of California, after the bill passed the committee on Tuesday did not include information on the bill’s changes to the NSL scope.

Burr spokeswoman Rebecca Watkins indicated a public version bill would be released as early as next week.

“Committee members have three working days to submit supplemental, minority, or additional views to the committee. The resulting report will be made public after member comments are compiled, as has been consistently the process for the Senate intelligence committee,” Watkins told the Guardian.

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