President Obama speaks with James Comey, left, and FBI Director Robert Mueller. Via the White House
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Which takes us back to Comey. To his credit, Comey said today that ECPA's convoluted rules, including the rule that unopened emails more than 180 days old don't require a warrant to access, are outdated. ”I don’t think the Fourth Amendment has, like your yogurt, an ‘expired on’ date on it,” he said. “It sounds like an anachronism to me."That's a positive sign, especially given Congress' sloth in updating ECPA. It's also far from a groundbreaking statement, as ECPA's outdated nature has been commented on plenty of times in political circles, to little effect so far.Comey's support for the FBI's intelligence-gathering mission is more significant, as it's indicative of the obsession with information gathering that's become institutionalized across the government. As sophisticated as it is, the FBI at its core has been tasked with policing federal laws. And while its own shift is mirrored by increasingly militarized and terror-obsessed police agencies nationwide, the FBI's change is notable because it's gone from investigating crimes to trying to find them before they happen.At its core, that mentality is fueling all of the privacy erosion nationwide, from the NSA's PRISM scandal to the DoJ spying on Associated Press reporters. The shift from police work to intelligence gathering is predicated on the idea that if authorities have enough access to communications, enough data, enough analysis, they can stop crimes before they happen.That's obviously the goal of counterterror efforts, and intelligence is an important part of both counterterror and police work. But the whole FBI—and DoJ, and NSA, and Homeland Security, ad infinitum—is slowly dedicating itself to attempting to predict the future, and the only way it believes it can make that happen is by getting more access to electronic communications, because somewhere in our billions of emails and texts lies the keys to a terror plot.And that is why Comey's dedication to turning the FBI into an intelligence agency is concerning. Director Mueller's historic mission shift was fully predicated on the idea that if the FBI was to find a needle, it'd need to build a haystack first. So the FBI will continue to increase its surveillance capabilities and redouble its efforts to make accessing electronic communications easier, all because of the continued specter of terrorism. Meanwhile, Americans' privacy rights will continue to slip away.@derektmeadDirector Mueller's historic mission shift was fully predicated on the idea that if the FBI was to find a needle, it'd need to build a haystack first.