A federal judge has denied a request by federal law enforcement officials seeking to surveil Internet records, saying the federal government had failed to show “specific and articulable facts” justifying the request.
Officials had been seeking records related to 21 accounts associated with 9 suspected perpetrators. The accounts include those provided by Google, Yahoo, Facebook and Hotmail.
The government represented that it “received information from [foreign governments] that nine individuals played significant roles in perpetrating the attack,” Magistrate Judge G. Michael Harvey noted for the federal court of the District of Columbia, but argued so in such a “thin and cryptic” manner that he concluded the government “does not have … any other facts.”
Under the Electronic Communications Privacy Act of 1986, federal law enforcement officials have long used “national security letters” to obtain electronic communication records from telecommunication providers. Though originally intended to apply to telephone records, the act has since expanded to online mediums of communication like email, to the chagrin of privacy advocates. It is highly unusual for a court to deny the orders, which are usually made in secret.
“Given this court’s lack of familiarity with other countries’ criminal justice systems, the government would be wise to provide more factual detail in such applications, not less,” Harvey noted in his opinion. “If foreign authorities are unwilling to provide the United States with sufficient information to meet U.S. legal standards, then the government’s attempt to procure legal process in this country based solely on that foreign-derived information will fail.”
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“Setting to one side the ambiguity of the government’s showing … its implicit contention that the records it seeks should be disclosed because ‘criminals use email,’ or even ‘co-conspirators use email,’ is incorrect,” Harvey added.
“If such a bare representation is sufficient for the court to grant an application … there would seem to be no rational reason why the government should not receive non-content information regarding all email accounts of any suspected criminal,” Harvey wrote.
“As the government would have it, here that would mean the disclosure of records and information, unbounded by any date range, concerning 21 electronic accounts for 9 individuals. If that results in the disclosure of header information concerning 10,000 communications stored in each account, so be it, says the government,” Harvey said before denying the request.
The House in April passed legislation to tighten rules pertaining to national security letters, though that legislation has yet to move in the Senate, where it has stalled in the Judiciary Committee.
