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The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau’s authority. “It’ll be faster and easier to get the data,” said Baker, who practices national security and surveillance law. “And for some Internet providers, it’ll mean giving a lot more information to the FBI in response to an NSL.”

Many Internet service providers have resisted the government’s demands to turn over electronic records, arguing that surveillance law as written does not allow them to do so, industry lawyers say. One senior administration government official, who would discuss the proposed change only on condition of anonymity, countered that “most” Internet or e-mail providers do turn over such data.

To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is “incredibly bold, given the amount of electronic data the government is already getting,” said Michelle Richardson, American Civil Liberties Union legislative counsel.

The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. “You’re bringing a big category of data — records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information — outside of judicial review,” said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.

Privacy concerns

The use of the national security letters to obtain personal data on Americans has prompted concern. The Justice Department issued 192,500 national security letters from 2003 to 2006, according to a 2008 inspector general report, which did not indicate how many were demands for Internet records. A 2007 IG report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request. In two cases, the report found, agents used NSLs to request content information “not permitted by the [surveillance] statute.”

One issue with both the proposal and the current law is that the phrase “electronic communication transactional records” is not defined anywhere in statute. “Our biggest concern is that an expanded NSL power might be used to obtain Internet search queries and Web histories detailing every Web site visited and every file downloaded,” said Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, which has sued AT&T for assisting the Bush administration’s warrantless surveillance program.

He said he does not object to the government obtaining access to electronic records, provided it has a judge’s approval.

Senior administration officials said the proposal was prompted by a desire to overcome concerns and resistance from Internet and other companies that the existing statute did not allow them to provide such data without a court-approved order. “The statute as written causes confusion and the potential for unnecessary litigation,” Justice Department spokesman Dean Boyd said. “This clarification will not allow the government to obtain or collect new categories of information, but it seeks to clarify what Congress intended when the statute was amended in 1993.”

The administration has asked Congress to amend the statute, the Electronic Communications Privacy Act, in the fiscal year that begins in October.

Administration officials noted that the act specifies in one clause that Internet and other companies have a duty to provide electronic communication transactional records to the FBI in response to a national security letter.

But the next clause specifies only four categories of basic subscriber data that the FBI may seek: name, address, length of service and toll billing records. There is no reference to electronic communication transactional records.

Same as phone records?

The officials said the transactional information at issue, which does not include Internet search queries, is the functional equivalent of telephone toll billing records, which the FBI can obtain without court authorization. Learning the e-mail addresses to which an Internet user sends messages, they said, is no different than obtaining a list of numbers called by a telephone user.

Obtaining such records with an NSL, as opposed to a court order, “allows us to intercede in plots earlier than we would if our hands were tied and we were unable to get this data in a way that was quick and efficient,” the senior administration official said.

But the value of such data is the reason a court should approve its disclosure, said Greg Nojeim, senior counsel at the Center for Democracy and Technology. “It’s much more sensitive than the other information, like name, address and telephone number, that the FBI gets with national security letters,” he said. “It shows associational information protected by the First Amendment and is much less public than things like where you live.”

A Nov. 5, 2008, opinion from the Justice Department’s Office of Legal Counsel, whose opinions are binding on the executive branch, made clear that the four categories of basic subscriber information the FBI may obtain with an NSL were “exhaustive.”

This opinion, said Sussmann, the former Clinton administration lawyer, caused many companies to reevaluate the scope of what could be provided in response to an NSL. “The OLC opinion removed the ambiguity,” he said. “Providers now are limited to the four corners of what the opinion says they can give out. Those who give more do so at their own risk.”

Marc Zwillinger, an attorney for Internet companies, said some providers are not giving the FBI more than the four categories specified. He added that with the rise of social networking, the government’s move could open a significant amount of Internet activity to government surveillance without judicial authorization. “A Facebook friend request — is that like a phone call or an e-mail? Is that something they would sweep in under an NSL? They certainly aren’t getting that now.”

WASHINGTON (AP) – Under fire from civil liberties groups, the FBI is defending domestic surveillance guidelines that critics fear could unfairly target innocent Muslims in terrorism and other criminal investigations.

“It’s quite an invasive data collection system,” said Farhana Khera, executive director of the nonprofit group Muslim Advocates. “It’s based on generalized suspicion and fear on the part of law enforcement, not on individualized evidence of criminal activity.”

Khera spoke in an interview on the eve of a Capitol Hill appearance by FBI Director Robert Mueller, who was scheduled to testify Wednesday to the Senate Judiciary Committee.

In a statement, the bureau said its procedures are designed to ensure that FBI probes don’t zero in on anyone on the basis of race, ethnicity, religion or the exercise of any other constitutional right.

The FBI said its Domestic Investigations and Operations Guide equips agents with lawful and appropriate tools so the agency can transform itself into an intelligence-driven organization that investigates genuine criminal and national security threats.

Last September, the FBI disclosed an edited version of the guide as a result of a Freedom of Information Act lawsuit by the Electronic Frontier Foundation.

The manual was approved in December 2008, during the final days of the George W. Bush administration, and establishes policy that guides all the FBI’s domestic operations, including counterterrorism, counterintelligence, crime and cyber crime.

On Tuesday, the American Civil Liberties Union also weighed in against the guide. The group asked FBI field offices in 29 states and Washington, D.C., to turn over records related to the bureau’s collection of data on race and ethnicity.

According to the ACLU, the FBI’s operations guide gives agents the authority to create maps of ethnic-oriented businesses, behaviors, lifestyle characteristics and cultural traditions in communities with concentrated ethnic populations.

While some racial and ethnic data collection by some agencies might be helpful in lessening discrimination, the FBI’s attempt to collect and map demographic data using race-based criteria invites unconstitutional racial profiling by law enforcement, according to the ACLU.

Khera said the FBI has lowered the bar for sending undercover agents or informants into mosques and has enabled the gathering of data about Muslims’ charitable giving practices, financial transactions and jobs.

The FBI is still refusing to make public portions of the guide that deal with sending agents or informants into houses of worship and political gatherings.

The bureau has previously stated it would only go into a mosque if it had some reason to believe there was criminal activity, said Khera. If that is the standard, the FBI should have no problem actually disclosing that section of the document, she said.

Improving information sharing sounds like a fine goal in the abstract, but increasing the government’s authority to collect and disseminate personally identifiable information about Americans in the absence of reasonable suspicion and a specified law enforcement purpose poses significant risks to our privacy and civil liberties. In our view, any effort to expand information sharing among law enforcement agencies must be accompanied by independent oversight mechanisms and a rigorous set of standards to ensure the use of proper methods, to preserve the privacy of innocent individuals, and to maintain the accuracy and usefulness of the shared information.

The police power to investigate, when combined with the secrecy necessary to protect legitimate law enforcement operations, provides ample opportunity for error and abuse. The potential for abuse expands as the amount of information collected and the number of entities it is shared with increases. By its very nature, criminal intelligence information is often criminal intelligence information is often uncorroborated, inadequately vetted and fragmentary. At its worst, it is unreliable, misleading or just plain wrong. Just one thing is certain about ‘intelligence:’ it is only valuable to our security when it is true. If the information collected and shared among law enforcement agencies is inaccurate or irrelevant to a legitimate law enforcement function, sharing it will not improve security, and very well may damage it. Our concerns about information sharing lie in the details. We want to know what information is being collected, who is collecting it, what is done with the information once it has been collected, what authorities regulate these activities, and who is ultimately responsible for ensuring compliance with applicable federal, state, and local laws?

Protecting National Security and Civil Liberties: Strategies for Terrorism Information Sharing

o Developing and implementing a written privacy policy that:

Is “at least as comprehensive” as the Information Sharing Environment
(ISE) Privacy Guidelines.

Addresses the requirements to participate in the Nationwide Suspicious Activity Reporting (SAR)Initiative (NSI), as appropriate.

Meets the requirements of state and local privacy and civil liberties laws, ordinances, and regulations designed to protect the privacy of individuals and organizations.

o Designating a fusion center Privacy Official.

o Providing annual training to personnel on privacy, civil rights, and civil liberties protections.

o Conducting local outreach and collaboration with privacy and civil liberties advocacy groups.

This framework leverages the results of a two-year pilot project that demonstrated that local implementation of a uniform privacy, civil rights, and civil liberties framework is critical to enabling the sharing of information across jurisdictions.

Fact Sheet: Enhancing the Privacy, Civil Rights and Civil Liberties Framework for State and Major Urban Fusion Centers

Two police forces have begun trialling the sophisticated programme, which has echoes of the Tom Cruise film Minority Report, where psychics are used to stop criminals before they commit a crime.

The system, known as Crush (Criminal Reduction Utilising Statistical History) evaluates crime records, intelligence briefings, offender profiles and even weather reports, to identify potential flashpoints where a crime is most likely to occur.

The “predictive analytics” technology has been credited as a key factor behind a 31 per cent fall in crime and 15 per cent drop in violent crime in Memphis, Tennessee, according to The Observer.

John Williams, of the Memphis Crime Analysis Unit, said: “This is more of a proactive tool than reacting after crimes have occurred.

“This pretty much puts officers in the area at the time that the crimes are being committed.”

The software has been developed by IBM which has invested $11 billion in analytics over the past four years.

Mark Cleverley, the company’s head of government strategy, said: “What the technology does is what police officers have always done, sometimes purely on instinct – looking for patterns to work out what is likely to happen next.

“What is different is the scale on which the systems operates and the speed at which the analysis takes place.”

Risk Management Division

• 2 pages
• For Official Use Only
• September 13, 2006

The United States has more than 46,000 shopping malls nationwide, ranging in size from small open-air neighborhood “strip” shopping centers containing fewer than 10,000 square feet (ft2) of store area to super-regional malls with more than 1 million ft2.

Terrorist activity indicators are observable anomalies or incidents that may precede a terrorist attack. Indicators of an imminent attack requiring immediate action may include the following:

• Persons in crowded areas (e.g., mall common areas, food courts) wearing unusually bulky clothing that might conceal suicide explosives; weapons (e.g., automatic rifle) may also be concealed under their clothing

• Unattended vehicles illegally parked near mall buildings or places where large numbers of patrons gather

• Unattended packages (e.g., backpacks, briefcases, boxes) that might contain explosives

• Unauthorized access to heating, ventilation, and air conditioning (HVAC) areas; indications of unusual substances near air intakes

Indicators of potential surveillance by terrorists include:

• Persons using or carrying video/camera/observation equipment over an extended period

• Persons discovered with shopping mall maps, photos, or diagrams with facilities highlighted

• Persons parking, standing, or loitering in the same area over a multiple-day period with no apparent reasonable explanation

• Mall personnel being questioned off-site about practices pertaining to the mall

• Employees changing working behavior or working more irregular hours

• Persons observed or reported to be observing mall receipts or deliveries

• A noted pattern or series of false alarms requiring a response by law enforcement or emergency services

• Unfamiliar cleaning crews or other contract workers

• An increase in buildings being left unsecured

• An increase in threats from unidentified sources

• Unusual or unannounced maintenance activities in the vicinity of the mall

• Sudden losses or thefts of guard force equipment

SEARCH Anniversary: The Next 40 years

• 13 pages
• For Official Use Only
• November 2009

(10.2 MB)

Technology will undoubtedly continue to radically change how crimes are committed and policed

Increased sophistication and “boundaryless” characteristics of crimes pose new challenges

– “Criminal and terrorist networks of the information age will be able to
coordinate their actions quickly and effectively without centralized
command and control structures, brick and mortar facilities, or hierarchical
leaders who have been the standard target of traditional police operations”
Policing 2020

Rather than forecasting what technology will be adopted, law
enforcement must commit itself to be:
– Flexible
– Nimble
– Adaptable

FBI Criminal Justice Information Services (CJIS) Division is
committed to provide timely and relevant criminal justice information
and utilize state-of-the-art technology
We look out for trends on the horizon…

…

…

Law Enforcement requires greater ability to sift,
process, and share the petabytes of available data

Data Explosion

– 13 million gigabytes of information are added to the world’s
databases every day; a sizeable proportion can be used for criminal
and/or terrorist purposes
– Law Enforcement information might be in the form criminal history
information on suspects, geographic location information, video
images from a surveillance camera, voice transmission from a
police officer in another department, or any other type of information
from any other digital node on the network

Law Enforcement Processing Lags

– The data management method of choice in many police
departments is still manual filing methods relying on
human clerks, paper forms, and metal filing cabinets

…

The investigation’s other findings include:

* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.
* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.

* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings – about 17 million square feet of space.

Read more at:
A HIDDEN WORLD: GROWING BEYOND CONTROL