The battle lines are drawn once again. U.S. law enforcement agencies and Silicon Valley are getting ready to face off on the issue of privacy.
This latest battle is focused on a 30-year-old law on government access to electronic communications and associated data. The Electronic Communications Privacy Act was a forward-looking statute when enacted in 1986, but technology has dramatically outpaced the ECPA.
The U.S. Congress has been looking into ways to revise the law in order to preserve the privacy of internet users while also preserving the legal tools necessary for government agencies to enforce the law and protect the public.
The late U.S. Supreme Court Justice Louis Brandeis called privacy "the most comprehensive of rights, and the right most valued by a free people."
The Senate Judiciary Committee this week is considering an amendment to the ECPA that would expand the government's ability to collect data using a National Security Letter, which doesn't require a court order. The amendment would authorize the FBI to demand a person's internet browser history and internet protocol address, enabling investigators to see what websites a person visits, how much time is spent on a particular site and the location of the internet user — all without judicial oversight.
The FBI contends that such data is covered implicitly under current statute, which was written years ago and only explicitly covers data normally associated with telephone records. FBI Director James Comey has said the amendment is needed to fix "a typo" in the ECPA that has hindered the bureau's ability to work in "a very, very big and practical way."
But a letter sent earlier this week warned Congress that such an amendment is opposed by tech giants and civil liberties organizations.
"This expansion of the NSL statute has been characterized by some government officials as merely fixing ‘a typo' in the law,” the letter said. "In reality, however, it would dramatically expand the ability of the FBI to get sensitive information about users' online activities without court oversight."
It was signed by Yahoo, Google, Facebook, Human Rights Watch, the American Civil Liberties Union and others.
One of the biggest problems these groups have with the amendment is the use of the NSLs, which often are accompanied by gag orders that ban companies from telling users much about how they help the government. Companies also argue that NSLs give too much power to one branch of government and make it hard to predict what the government may ask for next.
Comey has said the expansion of NSL is the agency's top legislative priority.
The battle lines are drawn. The war will be fought over the words of the Fourth Amendment to the U.S. Constitution, "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause ... ."