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The move is a sensible one that is meant to clarify a legal ambiguity.... But the fix must be narrowly tailored to guard against expansion of the government's power to seize all manner of Internet data without court authorization.

The Electronic Communications Privacy Act (ECPA) authorizes the FBI to gather "subscriber information and toll billing records information, or electronic communication transactional records" that are "relevant to" a terrorism investigation. The FBI typically serves the ISP with a national security letter to collect telephone records and e-mail routing information. ISPs may challenge the request in federal court; they may also challenge a gag order that usually prevents the company from publicly acknowledging the FBI's demand. (A court order is required for the government to listen in on a phone conversation or to read the content of an e-mail.)

Most ISPs have complied with these demands, but at least some have balked, arguing that the key part of the statute that lists the types of information the FBI may obtain does not explicitly mention e-mail. The Justice Department is now urging lawmakers to borrow the words "electronic communication transactional record" from one part of the ECPA and insert them into this section.

This is a simple, but potentially hazardous, solution that should be avoided. When drafting the ECPA in 1993, lawmakers clearly intended the FBI to gather e-mail routing information. But few lawmakers could have envisioned how quickly and profoundly the Internet would evolve in a few short years. Back then, Google was just a nonsense word, and networking sites such as Facebook and MySpace did not exist.

Congress should amend the law to explicitly authorize the FBI to obtain e-mail routing information, including the identity of the sender and recipient, as well as the date and time an e-mail was sent. According to the Justice Department's Office of Inspector General, which has been critical of past use of national security letters, the FBI has made significant strides in tightening controls to ensure the accuracy and legal propriety of the national security letters it issues.

But lawmakers should refrain from inserting language into the statute that could capture such things as a user's Internet browsing history. This is qualitatively different in that it is content that arguably should be protected by the First Amendment. At the least, lawmakers should not make such changes to the law without engaging in extensive fact-finding and debate.

The government's anti-terrorism efforts should not be significantly hampered. The FBI says it generally does not get Web browsing information using an national security letter. If such information is needed, the Justice Department would be able to get it by persuading a federal judge to issue a warrant.