Senate Still Considering Giving FBI More Power to Spy on Browser History

Despite strong opposition in Congress and from the grassroots, the FBI is still pushing to expand its National Security Letter (NSL) authority. The proposed amendments would allow the FBI to serve companies with NSLs and obtain a wide range of Internet records, known as Electronic Communication Transactional Records (ECTRs), including browsing history. 

In addition to a well-documented history of NSL abuse over the last 15 years, the FBI routinely exceeded its authority, claiming for years that it had the power to demand ECTRs with an NSL. It took an intervention [.pdf] by the Justice Department’s Office of Legal Counsel in 2008 to definitively establish that the law did not support those claims. Unfortunately, an amendment, sponsored by Senators John McCain and John Cornyn and vigorously promoted by FBI Director James Comey, would grant the FBI the power to access ECTRs, including information like a users’ browsing history as well as other online records.

As Senators Ron Wyden and Martin Heinrich explained in Slate, this information reveals a lot about people; it’s “almost like spying on their thoughts.” Giving the FBI power to obtain these sensitive records with an NSL is especially dangerous, because NSLs operate without prior judicial approval and come with a gag order in nearly all cases. In other words, the FBI would be able to secretly demand this revealing information from Internet companies about their users and gag the companies from notifying policymakers, the press, or users themselves.

Having lost a recent vote on the amendment as part of the Commerce, Justice, Science and Related Agencies Appropriations Act, the amendment’s sponsors are trying to simply bring it up for a vote again. (Similar proposals have also been attached to the 2017 Intelligence Authorization Act and the Email Privacy Act  [.pdf].) Obscuring the significance of these proposals—which would effectively overwrite parts of the Justice Department’s 2008 memo—the FBI Director has described it as a “typo fix.”

Take a moment now to tell your Senators to vote against expanding NSL powers by opposing McCain amendment 4787. On Monday, July 11, as part of a day of action, Senators Wyden and Heinrich will host a Q&A on Twitter and Facebook to share their concerns. Join them to learn more and hear the latest updates on when the amendment might come up for a vote.