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The FBI Hopes You Don’t Know the Rules About Email Records

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On Wednesday, Yahoo made a public disclosure regarding three National Security Letters that they received from the Federal Bureau of Investigations demanding email records without a warrant, despite the Justice Department making it clear in 2008 that such requests are unlawful.

Federal Bureau of Investigation(FBI) - Sputnik International
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The disclosure comes at a time when a battle rages between Congress and the FBI, about whether the agency is entitled to demand “electronic communication transaction records.”

FBI Director James Comey made the issue one of his top priorities this year, claiming at a February congressional hearing that his agency need to be able to access the records.

“The Justice Department told FBI officials that if they want to demand Americans’ email records, they need a court order,” Senator Ron Wyden (D-OR), said in a statement to The Intercept. “It is very troubling that the FBI has apparently not been adhering to that guidance.”

Yahoo, previously under a gag order regarding the issue, released a letter it received from the FBI that reads:

“Under the authority of Executive order 12333, dated July 30, 2008, and pursuant to Title 18 of the United States Code (U.S.C.), 2709 (201 of the Electronic Communications Privacy Act of 1986) (as amended), you are hereby directed to provide to the Federal Bureau of Investigation (FBI) the names, addresses, and length of service and electronic communications transactional records, to include existing transaction/activity logs and all electronic mail (e-mail) header information, for the below-listed email/IP address holder(s).”

People walk in front of a Yahoo sign at the company's headquarters in Sunnyvale, California. - Sputnik International
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Yahoo was aware that the agency did not have the authority to request such records, and refused, only turning over what was authorized by law: the name, address, length of service, and toll billing for users.

“Essentially, the FBI believes they can ask for the sun, the moon and the stars in an NSL, while knowing that tech companies don’t have to turn over anything more than name, address and length of service,” Chris Soghoian, chief technologist at the American Civil Liberties Union, told the Intercept, speaking on how FBI agents are likely hoping that companies are not aware of the limitations of the agency’s authority.

“The FBI asks for so much, because it is banking that some companies won’t know the law and will disclose more than they have to. … The FBI is preying on small companies who don’t have the resources to hire national security law experts,” he argued.

In 2015, the FBI issued approximately 13,000 national security letters, requesting information on nearly 50,000 people.

“Yahoo has always maintained a strong commitment to protecting our users’ safety, security and privacy. The release of these documents and information regarding NSLs today is consistent with our commitment to sharing as much information as we legally can regarding government data requests. We believe there is value in making these documents available to the public to promote an informed discussion about the legal authorities available to law enforcement. They also demonstrate the importance of hard-fought reforms to surveillance law achieved with passage of the USA Freedom Act,” Yahoo said in a statement included in the release.

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