The secret government requests for customer information Yahoo made public Wednesday reveal that the FBI is still demanding email records from companies without a warrant, despite being told by Justice Department lawyers in 2008 that it doesn’t have the lawful authority to do so.
That comes as a particular surprise given that FBI Director James Comey has said that one of his top legislative priorities this year is to get the right to acquire precisely such records with those warrantless secret requests, called national security letters, or NSLs. “We need it very much,” Comey told Sen. Tom Cotton, R-Ark., during a congressional hearing in February.
At issue is whether the national security letters empower the FBI to demand what are called “electronic communication transactions records,” or ECTRs. Such records can include email header information – not their content – and browsing histories.
In 2008, the Justice Department’s Office of Legal Counsel concluded that the FBI was only entitled to get the name, address, length of service, and toll billing records from companies without a warrant. Opinions issued by the OLC are generally treated as binding and final within the executive branch.