WASHINGTON The FBI appeared to go beyond the
scope of existing legal guidance in seeking certain kinds of
internet records from Twitter as recently as last year,
legal experts said, citing two warrantless surveillance orders
the social media company published on Friday.
Twitter said its disclosures were the first time the company
had been allowed to publicly reveal the secretive orders, which
were delivered with gag orders when they were issued in 2015 and
2016. Their publication follows similar disclosures in recent
months by other major internet companies, including Alphabet’s
Google and Yahoo.
Each of the two new orders, known as national security
letters (NSLs), specifically request a type of data known as
electronic communication transaction records, which can include
some email header data and browsing history, among other
In doing so, the orders bolster the belief among privacy
advocates that the FBI has routinely used NSLs to seek internet
records beyond the limitations set down in a 2008 Justice
Department legal memo, which concluded such orders should be
constrained to phone billing records.
The FBI did not immediately respond to a request for
comment. An FBI inspector general report from 2014 indicated
that it disagreed with the memo’s guidance.
In a blog post announcing the two NSL disclosures, Twitter
said it did not hand over all the information the FBI requested.
“While the actual NSLs request a large amount of data,
Twitter provides a very limited set of data in response to NSLs
consistent with federal law and interpretive guidance from the
U.S. Department of Justice,” Elizabeth Banker, associate general
counsel at Twitter, wrote.
The identity of the accounts sought by the FBI are redacted
in both of the NSLs.
Aaron Crocker, a staff attorney at the Electronic Frontier
Foundation, said the orders disclosed Friday were among a small
handful of those publicly released that show the FBI continues
to ask for internet records despite the 2008 guidance.
“This is an ongoing practice and it is significantly beyond
the scope of what is intended,” said Crocker, whose organization
is challenging the constitutionality of NSLs in the Ninth U.S.
Circuit Court of Appeals. Twitter has also sued the government
to more freely discuss NSLs.
National security letters are a type of government order for
communications data sent to service providers. They are usually
issued with a gag order, meaning the target is often unaware
that records are being accessed, and they do not require a
They have been available as a law enforcement tool since the
1970s, but their frequency and breadth expanded dramatically
under the USA Patriot Act, which was passed shortly after the
Sept. 11, 2001 attacks. Tens of thousands of NSLs are issued
In June of last year the U.S. Senate narrowly rejected a
Republican-backed proposal to expand the kinds of telephone and
internet records the FBI could request under an NSL to include
senders and recipients of emails, some information about
websites a person visits and social media log-in data.
The legislation failed amid opposition from some major
technology companies and civil liberties advocates, but
lawmakers have said they intend to pursue the expansion again.
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