FBI’s Warrantless Electronic Surveillance Goes On Trial

Giuseppe Macri Tech Editor
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The U.S. Court of Appeals for the 9th Circuit on Wednesday will hear a case that could decide the future of the FBI’s ability to electronically surveil Americans without a warrant.

The Electronic Frontier Foundation (EFF), representing an unidentified telecommunications company, is challenging the bureau’s ability to use national security letters (NSLs) to force companies to turn over telephone, Internet and financial records of specific clients to assist in investigations relevant to national security. The letters circumvent the standard court process of obtaining search warrants and often forbid companies from reporting their compliance.

The U.S. District Court of Northern California ruled the use of NSLs by the FBI an unconstitutional violation of the First Amendment in 2013, and told the bureau it must stop using them along with their accompanying gag orders. However, the government was granted a window for appeal and U.S. District Judge Susan Illston’s order was stayed over “national security issues.”

As National Journal points out, that was mere months before the colossal leak of classified documents describing bulk, warrantless electronic surveillance programs and practices by former National Security Agency contractor Edward Snowden. (RELATED: US Government Threatened Yahoo With Massive Fines To Force NSA Compliance)

“From the standpoint of vindicating our First Amendment rights and establishing a principle that there are limits to what governments can do, [this case] is extremely important,” EFF legal fellow Andrew Crocker said in the Journal report. “You can’t deny that the public eyes [are] on national security investigations and how the government uses its legal authorities to collect information on Americans.”

In a friend-of-the-court brief, U.S. House Democratic Reps. Anna Eshoo and Zoe Lofgren of California, Jared Polis of Colorado and Republican Thomas Massie of Kentucky highlighted multiple instances of NSL abuse reported by the FBI’s own inspector general, including an instance of spying on innocent Americans as a result of typos.

The challenge could make its way to the Supreme Court and is one amid a host of post-Snowden legal battles to limit government surveillance powers, including another EFF case challenging the government’s ability to surveil non-U.S. citizens U.S.-based email and social media accounts, a case by Microsoft defending its right not to turn over data stored in overseas servers, and a lawsuit filed against the Justice Department and FBI by Twitter Tuesday for greater transparency in disclosing the the number and type of orders for data it receives from the government. (RELATED: Twitter Is Suing The US Government To Disclose How Much Information It Requests About You)

The case also follows a year-end push by a significant portion of the U.S. Senate to pass its version of the USA FREEDOM Act — the most sweeping legislative reform proposed yet which, if passed, will curb NSA practices and authorities granted in part by the PATRIOT Act. (RELATED: Senate Unveils New NSA Reform Bill, Silicon Valley, Privacy Advocates Praise)

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