The FBI doesn’t need no stinkin’ warrants, and the FBI can ignore the DOJ
Jenna McLaughlin reports in The Intercept:
The secret government requests for customer information Yahoo made public Wednesday reveal that the FBI is still demanding email records from companies without a warrant, despite being told by Justice Department lawyers in 2008 that it doesn’t have the lawful authority to do so.
That comes as a particular surprise given that FBI Director James Comey has said that one of his top legislative priorities this year is to get the right to acquire precisely such records with those warrantless secret requests, called national security letters, or NSLs. “We need it very much,” Comey told Sen. Tom Cotton, R-Ark., during a congressional hearing in February.
At issue is whether the national security letters empower the FBI to demand what are called “electronic communication transactions records,” or ECTRs. Such records can include email header information – not their content – and browsing histories.
In 2008, the Justice Department’s Office of Legal Counsel concluded that the FBI was only entitled to get the name, address, length of service, and toll billing records from companies without a warrant. Opinions issued by the OLC are generally treated as binding and final within the executive branch.
The FBI has said it disagrees with that conclusion, and interprets the opinion differently, according to a 2014 inspector general report. It sees the question as more of an “impasse” than an actual legal barrier.
But activists, members of Congress, and academics think the DOJ opinion was pretty clear.
“The Justice Department told FBI officials that if they want to demand Americans’ email records, they need a court order,” Senator Ron Wyden, D-Ore., said in a statement emailed to The Intercept. “It is very troubling that the FBI has apparently not been adhering to that guidance.”
“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,” Robyn Greene, policy counsel for the Open Technology Institute, wrote in a message to The Intercept. “The last thing Congress should be doing right now is giving the FBI more leeway to abuse its NSL authorities.”
The FBI declined to comment. But one of the letters Yahoo released — after being released from a gag order — started as follows: . . .
The FBI obviously considers that it is above the law.