November 29, 2020

Volume X, Number 334

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Transparency in Communications

Remember when President Obama talked about “transparency” in the White House.I haven’t heard him mention that term of late, but what I have read is alarming.  Perhaps President Obama really meant “transparency” in communications between individuals, including the use of social media.  Sometimes I look at my niece or nephew’s Facebook entries and think, geez, I wish I hadn’t seen that.  But I agreed to be their friends, not a parent or a spy.

In a recent article in the Washington Post, reporter Ellen Nakashima reports that the “Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.”  (http://www.washingtonpost.com/wp-dyn/content/article/2010/07/28/AR2010072806141.html?wpisrc=nl_pmtech)

How easy would it be to get these records?  Well, all the FBI has to do is to issue a “national security letter” (or NSL) to a company, which requires the recipient to provide the requested information and to keep the request secret.  Not even the subject of the request would get to know what was being asked or that they were under scrutiny.  These NSL can be issued by an FBI field office on its own authority.

Such a request could be really scary, especially when you consider that Facebook has almost reached 500 million users, including by niece and nephew.  And that social media has overtaken sluggish snail-mail, and even e-mails.  I want to warn them not to say really dirty words such as “terrorist” or “Islam.”  There, you see, now I’ve done it and I am worried that these words are more dangerous than any sexual language I might have used in the past.  

While the reporter notes that some government officials argue adding “electronic communication transactional records” is a “technical clarification,” others see it for what it really is . . . an attempt to broaden the FBI’s authority.  These officials argue that companies already have a duty to provide such records in response to national security letters, but the applicable clause only addresses four categories of basic subscriber data, note of which include names of recipients or sender, search queries, or a browser history.

Attorneys have to be particularly concerned because so many of us resort to the Internet to keep in contact with our clients.  We also send documents, many of them confidential, through the Internet.  Two questions arise: (1) do we trust the FBI to use its authority in a manner that preserves the rights of the country’s citizens, and (2) do we trust our providers to refuse to turn over information, or turn over as little as possible?

Who would imagine that when President Obama talked about “transparency,” he really meant that we the people are the ones that are destined to be transparent to our government.  And if I was worried before about what my niece and nephew were posting, I am even more concerned that someday their lives will be laid open on the basis of a National Security Letter

© 2020 Donna BaderNational Law Review, Volume , Number 224
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About this Author

Donna Bader, appellate lawyer, An Appeal to Reason
Attorney

Donna Bader is a Certified Specialist in Appellate Law in Laguna Beach, California. For over thirty years, she has specialized in handling civil writs and appeals, and has written more than 350 appellate briefs. Donna is the former editor in chief of several legal publications, including Plaintiff, The Advocate, The Forum, and The Gavel. She is the author of Rutter’s Civil Litigation Guide, California Summary Judgment and Related Termination Motions. Donna is also a frequent lecturer and contributing writer for various legal...

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