When Warrants Are Too Inconvenient For The FBI

This week, Yahoo was the first company to publicly acknowledge that it had received numerous National Security Letters (NSLs) from the Federal Bureau of Investigation (FBI). These letters showed that the FBI was demanding that the company release private user information; without having a warrant which they've been previously told that they need in order to obtain the records that they want. Are these NSLs enough to demand that electronic communication transaction records (ECTRs) be handed over? That is still up for debate.

It was previously decided by the Justice Department's Office of Legal Counsel that the FBI would only be authorized to obtain the name, address, length of service time, or toll billing records from a company, without having a proper warrant. But the recent disclosure by Yahoo shows that they are trying to obtain a lot more than that. FBI Director James Comey has said that it is a top priority to have FBI agents be enabled with the right (authority) to obtain this information through NSLs, rather than having them get the traditional warrants. The FBI has said that it disagrees with the findings of the OLC about having to get a proper warrant, and it interprets things a little differently; according to a previous inspector general report from 2014.

“The Justice Department told FBI officials that if they want to demand Americans' email records, they need a court order,... It is very troubling that the FBI has apparently not been adhering to that guidance,” said Senator Ron Wyden, D-Ore.

“It seems that the FBI has again crossed the line when it comes to ECTRs, even after being explicitly told – under the Bush administration, no less – that they were not legally authorized to demand these personal records absent a court order,” said Robyn Greene, policy counsel for the Open Technology Institute.

The “proper channels” themselves are disagreeing on what the right or correct method, is so how can they go about doing business in an effective manner? Where are the checks and balances? The Justice Department basically told the FBI that it's illegal for them to try to go about getting the information of users without the proper warrant to do so, but the FBI doesn't think that view is correct. This is what the rule of law in the U.S. has been reduced to. And how is the public supposed to have faith in such a system, when its representatives of authority can't even agree on what the proper and legal method is for conducting their basic job duties?

Thus far, the FBI has declined to comment on the matter.

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