Issa said he wants to "craft" legislation that would give the FBI the power to look "for those illegal activities, and then act on those, both defensively and, either yourselves or certainly other agencies, offensively in order to shut down a crime in process."
As a condition of using electronic communication, the law would require you to give up your Fourth Amendment privacy protections? FBI Director Robert Mueller is all for it. He wants Congress to "give us the ability to pre-empt that illegal activity." People who respect the Bill of Rights have a different view.
"I think you bump squarely into the Fourth Amendment when you get into the required waiver of constitutional protections to use a service," said [Al] Gidari, the [telecommunnications] attorney at Perkins Coie. "Why don't we extend it to include not criticizing the government? Which right is next? 'You may use our service, as long as you don't disparage Verizon?' Why not that one?...You've still got to have, at the end of the day, a constitutionally supportable legal process to get access to anyone's communications. This cannot be an end run around that."
Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation, warns against the Orwellian vision that Issa and Mueller share:
[I]t seems that [Mueller's] saying, essentially, that the surveillance society is the best society. A society in which the government has complete information about illegal activities and is able to enforce that.
The parameters of the law that Mueller and Issa contemplate are sketchy. Whatever the details of the legislation might turn out to be, you can be sure that dire threats of "cyber-terrorism" will be invoked to induce fear, the surest way to convince people of the need to surrender their rights. You can also be sure that the FBI will promise not to abuse any new powers it receives -- a promise with as much value as used toilet paper.
[I]t's worth keeping in mind that the FBI has a recent, and not very flattering, history of trying to expand the scope of surveillance methods. Bureau agents used so-called exigent letters to obtain records from telephone companies, claiming that an emergency situation existed. In reality, there was often no emergency at all. The Justice Department's inspector general found similar abuses of national-security letters. The FBI also tried to bypass the Foreign Intelligence Surveillance Court when it denied requests to obtain records.
Moral: next time you sign up with an ISP, read the fine print.
