It’s well known that the FBI has historically abused its power to investigate non-criminal Americans—in the 1960s, the FBI relied on informants and undercover agents to burglarize the offices of the Socialist Workers Party and other movement organizations to steal membership lists, bank accounts, and other sensitive data. Now, a proposed amendment to the Electronic Communications Privacy Act would allow the FBI to bypass judicial review and obtain this same information on demand.1
Including “electronic communication transactional records” into the wording of the legislation would allow the FBI to infiltrate internet activity such as social networking, inquiries from search engines, and sales from online vendors.2 While the content of emails are (theoretically) private, the FBI could legitimately access the recipients’ names of within an individual’s emails, along with the time and date that any online form of communication was sent.3
To get this information, the FBI simply has to ask for it in the form of a National Security Letter, or NSL, an administrative subpoena that does not require judicial oversight or probable cause.
This development is troubling, to say the least, especially since about 50,000 NSLs are already being issued per year. The Justice Department Inspector General has complained that the FBI is failing to adequately justify the reasons for requesting all this information.4 Similarly, the FBI director has admitted that “suspicion of wrongdoing is not required” in order for the FBI to issue surveillance on an individual. Essentially, the FBI is able to investigate Americans who have no criminal engagement or inclination.5
Individuals who come under the FBI’s scrutiny have included Muslims, animal rights activists, and other protestors who have not participated in extralegal activities. The use of NSLs to target these noncriminals is reminiscent of the counterintelligence program (COINTELPRO), whose objective was “to expose, disrupt, and otherwise neutralize the New Left organizations, their leadership and adherents,” except in this era, the issue is combating terrorism, not communism.6
The Washington Post’s two-year investigation on FBI surveillance abuses, Top Secret America, is a worthy read This exposure, in addition to civil rights and civil liberty activist organizations’ protests, has brought this issue closer to the forefront and put pressure on Congress in how to respond to the FBI’s demands to expand their domain. A group of 46 progressive nonprofits, including Political Research Associates, recently wrote a letter to the Senate urging for further oversight of the FBI.
The $75 billion private surveillance industry has skyrocketed since 9/11, and it is a reasonable request that greater oversight is in place for the government’s part in investigating American citizens.7 However, it is not Congress that has the cleared access necessary to inspect the FBI. Like The Washington Post whose investigation could only go so far due to confidentiality restrictions, Senators are not given full disclosure of FBI activities. Therefore, the Government Accountability Office (GOA) may be the only hope for keeping the FBI in check since a significant portion of staffers are cleared at the top-secret level. In addition, the GOA answers to Congress, not the president, making it less influenced by executive preferences.8 If America has a chance of a future with FBI transparency, it lies within the GOA.
1. Ellen Nakashima, “White House proposal would ease FBI access to records of Internet activity,” 29 July 2010, Washington Post, accessed 7 August 2010.
2. Julian Sanchez, “Obama’s Power Grab,” 29 July 2010, accessed 7 August 2010.
3. Bob Jacobson, “Obama Is Becoming the Most Anti-Privacy President Ever,” 9 August, 2010, Huffington Post, accessed 13 August 2010.
4. Ellen Nakashima, “Plaintiff Who Challenged FBI’s National Security Letters Reveals Concerns,” 10 August, 2010, Washington Post, accessed 13 August, 2010.
5. Associated Press article- Matt Apuzzo and Adam Goldman “FBI Director Defends Bureau over Test Cheating,” 28 July, 2010, Associated Press, accessed 10 August, 2010.
6. see Thomas Cincotta, “From Movements to Mosques, Informants Endanger Democracy”
7. “Why the Intelligence Community Needs GAO Oversight,” Newsweek, accessed 7 August 2010.
8. “Why the Intelligence Community Needs GAO Oversight”