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OPLIN 4cast #494: Electronic communication transactional records

Posted in 4cast

FBI emblemWhat are electronic communication transactional records? Well… that’s actually a pretty good question. The answer starts with National Security Letters (NSLs), secret demands for information that the FBI can issue without a court order (and strongly opposed by the American Library Association). Under current law, these letters can only be used for limited types of information about a person’s online and financial activities related to suspected terrorism activity, but in practice the FBI has used them to demand much more information than they are authorized to request. Now the FBI is supporting legislation to make it clear that they have the authority to use NSLs to also demand “electronic communication transactional records,” which they would probably interpret to mean all of the metadata associated with any Internet activity. But who knows?

  • FBI seeks expanded National Security Letter to include browser history and more (Ars Technica | Cyrus Farivar)  “The two pieces of proposed legislation would each significantly expand use of National Security Letters to include ‘Electronic Communication Transactional Records’—better known as metadata. As Ars has reported previously, federal investigators issue tens of thousands of NSLs each year to banks, ISPs, car dealers, insurance companies, doctors, and others in terrorism and espionage investigations. The letters demand personal information, and they don’t need a judge’s signature, much less a showing of probable cause. They also come with a default gag to the recipient that forbids the disclosure of the NSL to the public or the target.”
  • ECTR-Coalition-Letter-6-6-1  “This expansion of the NSL statute has been characterized by some government officials as merely fixing a ‘typo’ in the law. In reality, however, it would dramatically expand the ability of the FBI to get sensitive information about users’ online activities without court oversight. The provision would expand the categories of records, known as Electronic Communication Transactional Records (ECTRs), that the FBI can obtain using administrative subpoenas called NSLs, which do not require probable cause. Under these proposals, ECTRs would include a host of online information, such as IP addresses, routing and transmission information, session data, and more.”
  • New intelligence bill gives FBI more secret surveillance power (The Intercept | Jenna McLaughlin)  “The provision, tucked into the Senate Intelligence Authorization Act, would explicitly authorize the FBI to obtain ‘electronic communication transactional records’ for individuals or entities — though it doesn’t define what that means. The bill was passed by the Senate Intelligence Committee last week. In the past, the FBI has considered ‘electronic communication transactional records’ to be a broad category of information — including everything from browsing history, email header information, records of online purchases, IP addresses of contacts, and more.”
  • Expansion of secret National Security Letters – A poison pill for email privacy (Center for Democracy & Technology | Gabe Rottman)  “Basically, even though the FBI would not be able to obtain content, the breadth of what they could get—again, without going to court—is nothing less than one’s digital fingerprint. As we migrate our lives increasingly online, all of our beliefs, predilections, biases, wants and desires can be seen in that fingerprint. If I’m a Trump voter, for instance, you’ll be able to see that pattern in the blogs I read, the email listservs I subscribe to, the group of friends I communicate with, or the fact that I took that selfie at the local Trump rally. If I’m battling a serious illness, I’m going to create a series of digital breadcrumbs suggestive of my diagnosis. Likewise if I’m a member of a religious minority or a controversial political movement.”

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