The following post was co-authored by R Street Internet and Tech Policy Fellow John Arzinos.

The U.S. Senate will vote today on the “ECTR Fix” amendment to the Commerce, Justice and Science Appropriations Act for Fiscal Year 2017, as introduced by Sen. John McCain, R-Ariz. The amendment would expand the FBI’s ability to collect “electronic communication transactional records,” also known as metadata, through the authority of National Security Letters (NSLs) that require no judicial approval.

NSLs are administrative subpoenas that can be issued by the FBI special agents in charge of field offices. They don’t require a showing of probable cause. In 2008, the Department of Justice clarified that NSLs could be used to access name, address, length-of-service and telephone-bill records.  However, the bureau now argues that electronic communication transactional records are the equivalent of telephone-bill records for online communications. It’s thus seeking to expand the types of data it can collect through this amendment, which some lawmaker dub “a fix.”

As an example, the FBI currently can issue an NSL to get a hold of a person’s name, address, length-of-service and local and long-distance toll-billing records. Under this amendment, the FBI would also gain the ability to use NSLs collect a person’s email address, telephone number, instrument number, account number, login history, length and type of service, candid bank info, IP address and many other details.

More troubling still are the gag orders attached to such FBI demands. These orders prevent internet service providers from notifying owners of the information in question that such requests have been made by authorities. This unconstitutional requirement threatens the heart of the First Amendment and undermines customer trust. According to The Washington Post, “over the past 10 years, the FBI has issued more than 300,000 NSLs, most of which had gag orders.”

The FBI claims that NSLs are only used in terrorism investigations. However, the intended original purpose of NSLs was to acquire financial records, with compliance being voluntary. As Digital 4th puts it, “Over the years, they have expanded into a powerful administrative subpoena authority, meaning they can be issued without judicial oversight and at the discretion of the DOJ. Compliance is mandatory and the recipient is gagged from disclosing receipt of the NSL.” Importantly, the inspector-general found significant abuse of NSLs by the FBI, documented in its 2010 report.

While security is of paramount importance, the government should not encourage law-enforcement agencies to encroach on the civil liberties and freedoms of their citizens without probable cause. Congress should not undermine the data security and privacy of millions of Americans.

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