Outside editorial: Do you mind if the FBI tracks your online habits?

Posted: Friday, October 29, 2010

The Internet is developing so rapidly that users typically discover only after the fact that their privacy was invaded or their private online activities were revealed to strangers. Safeguards don't seem to keep pace. That's troubling if, for example, a private marketer stealthily follows your online activities, as the Wall Street Journal has reported, or if trusted online sources permit others access to users' personal information without their knowledge or consent.

It's bad enough when private organizations track or share the Internet behavior of unsuspecting users. But private entities have limited control over our lives. It's quite another thing when the government does the snooping.

The Obama administration wants Congress to make it easier for the FBI to force private companies to turn over records of individuals' Internet activities and to do so without so much as a court order if government agents believe the information pertains to terrorism or an intelligence investigation.

The danger in such expansive powers to document personal online behavior - particularly without court review and approval beforehand - should give all Americans pause.

The administration desires to add the words "electronic communication transactional records" to items the law already permits the FBI to demand from Internet providers without a court order. The additional records include addresses to which e-mail is sent, including the times and dates it's sent and received. The FBI also may seek access to users' browser histories, the Washington Post recently reported.

We probably should be relieved the government isn't seeking to inspect the content of e-mails or "other Internet communication," as the Post put it. But we wonder how far off reading your e-mail might be without a judge's OK if the FBI gains unfettered access to these Internet records.

Industry lawyers and privacy advocates object. But the government says it merely seeks expansion of warrantless access already permitted with the issuance of so-called "national security letters," which are demands for information an FBI field office can make on its own authority. National security letters not only permit the government to request such information, but to keep the request secret when obtaining electronic records.

"It'll be faster and easier to get the data," Stewart A. Baker, a former Bush Homeland Security official now practicing national security and surveillance law, told the Post. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response."

We don't doubt that. Expansion of the government's warrantless accumulation of private communication records also proportionately would diminish Internet users' protections, and transform their Internet providers into arms of the government, collecting and passing on users' records without their knowledge or consent.

One of the many problems posed by the sought-after additional authority is that the phrase "electronic communication transactional records" isn't defined in existing statute or in the proposed law.

"Our biggest concern," said Kevin Bankston, attorney with the Electronic Frontier Foundation, a nonprofit Internet privacy organization, is that the expanded power "might be used to obtain Internet search queries and Web histories detailing every Web site visited and every file downloaded."

We share that concern. We hope Congress does, too, when this matter is taken up again after the election.

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