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FBI fights to protect ISPs that snoop on their customers

Refuses to name warrantless wiretap partners

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The FBI has finally come clean on the real reason it doesn't want to name phone and internet service providers that participate in a sweeping surveillance program that taps international communications without a warrant: Customers would get mad and dump or sue the providers.

This rare piece of honesty came in a recently filed court declaration (PDF) from a top FBI official arguing why the agency shouldn't have to supply the names in response to a Freedom of Information request filed by the American Civil Liberties Union.

“Specifically, these businesses would be substantially harmed if their customers knew that they were furnishing information to the FBI,” David M. Hardy wrote. “The stigma of working with the FBI would cause customers to cancel the companies' services and file civil actions to prevent further disclosure of subscriber information. Therefore, the FBI has properly withheld this information.”

Under recent changes to the Foreign Intelligence Surveillance Act, government intelligence officials received authority to tap American's international communications with little judicial oversight. The ACLU filed a lawsuit on constitutional grounds and later filed a FOIA request seeking additional details. Feds so far have released only a “few hundred pages of heavily redacted documents.”

Hardy's frankness came in justifying why the FBI shouldn't be required to supply any more information.

In his declaration, Hardy said names should also be kept confidential to prevent the service providers themselves from retaliating against the government.

“For instance, given that these companies would pay a high price if it were known that they were providing information about their customers to the FBI, it is likely that companies, though lacking grounds to do so, would nevertheless avail themselves of legal options to resist cooperation,” he wrote. “It is only with the understanding of complete confidentiality that full cooperation of such sources can be enlisted, and only through this confidence that these sources can be persuaded to continue to fully cooperate in providing valuable assistance in the future.”

More from the ACLU is here and here. ®

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