James Butler's Blog

Why Not Get A Court Order?

July 29, 2010 08:40

Today news came out that "the Obama Administration" wants to modify the Electronic Communications Privacy Act to exclude even more types of data from oversight. According to the article referenced above, the addition of the phrase "electronic communication transactional records" would be added to the list of items available without a court order.

Traditionally, National Security Letters (NSLs) have been used by the FBI to collect information from phone companies and Internet Service Providers (ISPs) when someone is a suspect in a criminal investigation. Since 9/11/2001, criminality is no longer the standard, as the Feds are increasingly using their powers to uncover data deemed relevant to a terrorism or intelligence investigation.

The new language begs the question ... What's the rush?

A court order typically takes just a couple of hours to obtain, less in an emergency, and there are even situations where a court order is unnecessary when time is of the essence. Basically the court order can be obtained retroactively if the evidence is solid enough and if the order is sought promptly. So why expand the realm of activities that can be snooped on without a court order?

What's the rush?

NSLs do not require any sort of oversight ... the FBI vouches for their own letters. Adding to the list of items an NSL can include is just dangerous to the republic, as it removes oversight from the very agencies that have abused their powers in the past.

While law enforcement, security and intelligence officials all claim that removing the need to acquire a court order can speed things up in an investigation, and I'm not arguing that it does not, I cannot imagine an scenario where the tiny amount of time it takes to get the order would have any impact on the result of the order. In the best case, once the NSL has been delivered it will still take the ISP several more hours, or more probably several days, to produce the data being requested.

Would a couple of hours' wait impact the immediacy of the information? Not at all.

Would the addition of "electronic communication transactional records" to the list impact the security and privacy requirements of the citizens of the United States? Absolutely.

The minuscule improvement in acquisition times is far outweighed by the potential damage to the users of an ISP service.

If the data is so very important, and if it is a certainty that it will result in evidence to be used in court, then that is all the more reason to obtain a court order prior to obtaining the data. Chain of evidence, and all that.

Since the Justice Department declared categorically back in 2008 that the information that may be obtained by using an NSL is "exhaustive", there seems to be little need to add additional categories to the list.

For the record, I am against expanding the Electronic Communications Privacy Act in this manner.

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