When news broke recently that federal officials were pushing for new regulations to facilitate online eavesdropping (“U.S. Tries to Make It Easier to Wiretap the Internet”, New York Times, September 27, 2010), it seemed like there were two ways to interpret the situation:
Did the proposed powers represent a significant change from the status quo?
The administration’s proposal… would require reconfiguring of the Internet to provide easier access to online communications. —ACLU
Or did the proposed powers merely enable law-enforcement officials to continue doing what they had been doing?
We’re not talking expanding authority. We’re talking about preserving our ability to execute our existing authority in order to protect the public safety and national security. —FBI general counsel Valerie E. Caproni
We couldn’t help thinking this sounded familiar.
The FBI had just been in the news for executing search warrants as part of an investigation into allegations of providing material support for terrorism — the same week that the Department of Justice’s Inspector General absolved the FBI of the most serious aspect of allegations it had chosen to investigate people based on their political views between 2001-06 (“F.B.I. Spying Not Fueled by Politics, Report Says”, September 20, 2010, New York Times).
As Caproni said in a story last year, “The F.B.I. has been told that we need to determine who poses a threat to the national security — not simply to investigate persons who have come onto our radar screen.”
There is a tension here, an uneasy balance that is a long-running element of American political life. The letter of the law protects civil liberties and civil rights, but there are similarly strong sentiments in support of security and public safety. How much privacy should people have? How much power does technology give the government? How, and how much, should those standards change over time? As a domestic law-enforcement agency that also collects intelligence, the FBI has been at the center of this debate for decades — and as our “FOIA Files” database and related stories show, FOIA has proven useful in documenting this challenge.
On the technological side:
– “White House proposal would ease FBI access to records of Internet activity” (July 29, 2010, Washington Post)
– FOIA File #407: “FBI spyware used to nab hackers, extortionists” (CNET News, April 17, 2009)
– FOIA File #303: “FBI Data Transfers Via Telecoms Questioned” (April 8, 2008, Washington Post)
– “Verizon Says It Turned Over Data Without Court Orders” (October 16, 2007)
– FOIA File #427: “F.B.I. Data Mining Reached Beyond Initial Targets” (September 9, 2007)
– FOIA File #434: “Point, Click … Eavesdrop: How the FBI Wiretap Net Operates” (August 29, 2007, Wired magazine)
– FOIA File #370: “Extent of FBI’s Web surveillance disclosed” (May 4, 2001, Associated Press) (Note: As the head of the Bureau’s cybertechnology lab put it, the FBI explained at the time that it wasn’t “randomly looking at everyone’s e-mail.” Though a later FOIA Files entry, #490, makes clear, the Post Office explains how the government could already have that power for postal mail: “The government is reading your mail”, Salon.com, January 5, 2007)
On the civil liberties side:
– “F.B.I. Spying Not Fueled by Politics, Report Says” (September 20, 2010, New York Times)
– FOIA File #470: “Loosening of F.B.I. Rules Stirs Privacy Concerns” (October 28, 2009, New York Times)
– FOIA File #462: “Who Is A Terrorist? Government Failure to Define Terrorism Undermines Enforcement, Puts Civil Liberties at Risk” (September 28, 2009, Transactional Records Access Clearinghouse)
– FOIA File #353: “The Usual Suspects” (November 20, 2008, Fairfield County Weekly; see also “Inquiry Targeted 2,000 Foreign Muslims in 2004” (October 31, 2008, New York Times))
– FOIA File #428: “F.B.I. Gained Unauthorized Access to E-Mail” (February 17, 2008, New York Times)
– FOIA File #238: “Gonzales Was Told of FBI Violations” (July 10, 2007, Washington Post)
– FOIA File #194: “FBI Kept Eye on Peace Activists” (May 29, 2007, Spokane Spokesman-Review)
– FOIA File #444: “Spying in Seattle” (May 1, 2006, Washington Free Press)
– FOIA File #61: “FBI Keeps Watch on Activists” (March 27, 2006, Los Angeles Times)
(Note: Other agencies have, of course, also run into this issue and related issues. See FOIA Files entries #548 (“Documents show DHS improperly spied on Nation of Islam in 2007”, December 17, 2009, Washington Post), #473 (“Bush Feared Successor Might Revoke Telco Spy Immunity”, November 12, 2009, Wired: Threat Level), #541 (“Yahoo, Verizon: Our Spy Capabilities Would ‘Shock’, ‘Confuse’ Consumers”, December 1, 2009), #402 (“Interim IG Report on Surveillance Program Released”, March 31, 2009, Secrecy News), #450 (“Memo Justified Warrantless Surveillance”, April 2, 2008, Associated Press), and #50 (“NSA program not up and running despite six years, millions spent”, January 29, 2006, Baltimore Sun).
We realize that this may reveal the intractability of certain questions as much as anything else, but we are glad that FOIA has enabled us to learn as much as we have learned, both about the rules and how our government follows them.