FBI Surveillance Coverage is More Broad Than Initially Thought.

The FBI appears to have adopted a more invasive Internet surveillance technique that collects far more data on everyday Americans than previously has been disclosed.^[1] Instead of recording only what a particular suspect is doing, agents conducting investigations appear to be assembling the activities of thousands of Internet users at a time into massive databases, which can then be searched for names, e-mail addresses or keywords.^[2]

Since this is broader and potentially more intrusive than previous techniques, it raises serious privacy concerns.^[3] This kind of “full-pipe” surveillance can record all Internet traffic, including Web browsing--or, only certain subsets such as all e-mail messages flowing through the network.^[4] Interception typically takes place inside an Internet provider's network at the junction point of a router or network switch, the information is intercepted first and filtered later; mined by the FBI to get the information about the person they are after.^[5]

One reason why the “full-pipe” technique raises novel legal questions is that under federal law, the FBI must perform what's called "minimization."^[6] 18 U.S.C §2518 says that agents must "minimize the interception of communications not otherwise subject to interception" and keep the supervising judge apprised of results.^[7] Minimization is designed to provide at least a modicum of privacy by limiting police eavesdropping on innocuous conversations. ^[8]

However the statute also mentions that in the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.^[9] Because digital communications can be considered a foreign language or code, federal agents are quite possibly legally permitted to record everything and sort through it later. ^[10]It remains an unanswered question as to whether such a compilation of recorded Internet communications can legally be collected and retrieved for information about unrelated criminal offenses such as drug use, copyright infringement or tax crimes.^[11]

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^[1] Declan McCullagh, FBI turns to broad new wiretap method, CNet News.com, January 30, 2007.
^[2] Id.
^[3] Id.
^[4] Id.
^[5] Id.
^[6] Id.
^[7] 18 U.S.C §2518 (2006).
^[8] McCullagh, supra note 1.
^[9] 18 U.S.C §2518(5).
^[10] Id.
^[11] McCullagh, supra note 1.