{"id":4916,"date":"2017-02-01T13:24:56","date_gmt":"2017-02-01T17:24:56","guid":{"rendered":"http:\/\/ncjolt.org\/?p=4916"},"modified":"2020-06-04T20:52:57","modified_gmt":"2020-06-04T20:52:57","slug":"fbi-tech-battle-continues","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/fbi-tech-battle-continues\/","title":{"rendered":"Why Can\u2019t We Be Friends? The Battle Between FBI and Tech Continues"},"content":{"rendered":"

It seems like just yesterday the FBI was taking legal action to force Apple to unlock the San Bernardino terrorist\u2019s iPhone. Ultimately, in the case, the FBI found a way to unlock the phone and no longer needed Apple\u2019s help.<\/a><\/span> But, as a previous blog by\u00a0Rhian Mayhew pointed out<\/a><\/span>, although the \u201ctension between the FBI and Apple is halted [the] tension between national security and privacy will persist.\u201d
\nJust a few months after the FBI\u2019s request to Apple, Yahoo announced<\/a><\/span> that the FBI had sent the tech company three National Security Letters (\u201cNSLs\u201d), which are \u201ccontroversial government demands for information usually accompanied by a gag order and rarely made public.\u201d<\/a> <\/span>While these NSLs, which are authorized by Executive Order 12333<\/a><\/span>, can be seemingly innocuous and \u201climited to the name, address and length of service,\u201d they can \u201calso ask for \u2018electronic communications transactional records\u2019 associated with the account . . . [which] can include the IP addresses from which the service was accessed\u201d among other things. Critics of NSLs claim that they are \u201ca strikingly broad tool operating with little transparency or oversight.\u201d<\/a><\/span> Unfortunately for these critics, there has been legislation proposed<\/a><\/span> to further the reach of NSLs to include \u201csenders and receipts of emails, some information about websites a person visits and social media log-in data.\u201d However, \u00a0\u201c[t]he legislation failed amid opposition from some major technology companies and civil liberties advocates, but lawmakers have said they intend to pursue the expansion again.\u201d<\/a><\/span>
\nShortly after Yahoo\u2019s announcement, Google came forward<\/a><\/span>, in December 2016, and published eight NSLs it had received from the government. Google declared<\/a><\/span> that it would \u201cremain vigilant in opposing legislation that would significantly expand the universe of information that can be obtained with an NSL.\u201d
\nNow, just over a month after Google\u2019s announcement, Twitter, who is currently suing the government<\/a> over the transparency of NSLs, has disclosed<\/a><\/span> two \u201cwarrantless surveillance\u201d<\/a><\/span> NSL requests which \u201cappear[] to go beyond the scope of existing legal guidance in seeking certain kinds of internet records.\u201d<\/a><\/span> In Twitter\u2019s case, the government requested the aforementioned \u201celectronic communication transaction records, which can include some email header data and browsing history, among other information.\u201d<\/a> <\/span><\/p>\n

Although \u201ca 2008 Justice Department legal memo . . . concluded that [NSLs] should be constrained to phone billing records,\u201d<\/a><\/span> in practice it the NSLs are going far beyond that and intruding on the privacy of users, exceeding what is allowed.<\/p><\/blockquote>\n

This sentiment is echoed by Andrew Crocker, a staff attorney at the Electronic Frontier Foundation, who believes \u201cThis [to be] an ongoing practice [that] is significantly beyond the scope of what is intended.\u201d<\/a><\/span> Twitter\u2019s associate general counsel Elizabeth Banker noted that although the government requested \u201ca large amount of data, Twitter [only] provide[d] a very limit set of data.\u201d
\nThe national security interest in each case varies, but the risk to user privacy remains constant. In the San Bernardino case the national security interest was high and the public was aware of what the FBI stood to gain, but Apple realized the risk to privacy and stood tall to protect users from harmful precedent. With NSLs, the national security interest, for better or worse, is known only to the FBI, but the risk of harmful precedent to everyday tech users remains. Users will have to keep an eye on Twitter\u2019s legal battle (Twitter v. Lynch) to see if the fight for increased transparency regarding NSLs will prove successful. Hopefully the tech industry and the FBI can find a mutually beneficial middle ground that both protects privacy and ensures national security.<\/p>\n","protected":false},"excerpt":{"rendered":"

It seems like just yesterday the FBI was taking legal action to force Apple to unlock the San Bernardino terrorist\u2019s iPhone. Ultimately, in the case, the FBI found a way to unlock the phone and no longer needed Apple\u2019s help. But, as a previous blog by\u00a0Rhian Mayhew pointed out, although the \u201ctension between the FBI …<\/a><\/p>\n","protected":false},"author":1,"featured_media":4917,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4916"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=4916"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4916\/revisions"}],"predecessor-version":[{"id":7128,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4916\/revisions\/7128"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/4917"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=4916"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=4916"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=4916"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}