By: Chris Strom
The FBI, National Security Agency and CIA are likely to gain
expanded surveillance powers under President-elect Donald Trump and a
Republican-controlled Congress, a prospect that has privacy advocates
and some lawmakers trying to mobilize opposition.
Trump’s first two choices to head law enforcement and
intelligence agencies -- Republican Senator Jeff Sessions for
attorney general and Republican Representative Mike Pompeo for
director of the Central Intelligence Agency -- are leading advocates
for domestic government spying at levels not seen since the aftermath
of the Sept. 11, 2001, terrorist attacks.
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The fights expected to play out in the coming months -- in Senate
confirmation hearings and through executive action, legislation and
litigation -- also will set up an early test of Trump’s
relationship with Silicon Valley giants including Apple Inc. and
Alphabet Inc.’s Google. Trump signaled as much during his
presidential campaign, when he urged a consumer boycott
of Apple for refusing to help the FBI hack into a terrorist’s
encrypted iPhone.
An “already over-powerful surveillance state” is about to “be
let loose on the American people,” said Daniel Schuman, policy
director for Demand Progress, an internet and privacy advocacy
organization.
New Hacking Rule
In a reversal of curbs imposed after Edward Snowden’s
revelations in 2013 about mass data-gathering by the NSA, Trump and
Congress may move to reinstate the collection of bulk telephone
records, renew powers to collect the content of e-mails and other
internet activity, ease restrictions on hacking into computers and
let the FBI keep preliminary investigations open longer.
A first challenge for privacy advocates comes this week: A new
rule is set to go into effect on Dec. 1 letting the FBI get
permission from a judge in a single jurisdiction to hack into
multiple computers whose locations aren’t known.
“Under the proposed rules, the government would now be able to
obtain a single warrant to access and search thousands or millions of
computers at once; and the vast majority of the affected computers
would belong to the victims, not the perpetrators, of a cybercrime,”
Senator Ron Wyden, an Oregon Democrat who serves on the Intelligence
Committee, said in a statement.
Wyden is one of seven senators, including libertarian Republican
Rand Paul, who have introduced a bill, S. 3475, to delay the new
policy until July to give Congress time to debate its merits and
consider amendments.
Orlando, San Bernardino
Sessions, Pompeo and officials with national security and law
enforcement agencies have argued that expanded surveillance powers
are needed, especially because of the threat of small, deadly
terrorist plots that are hard to detect, like the killing of 49
people at a gay nightclub in Orlando, Florida, in June and 14 people
in San Bernardino, California, last year.
The FBI had at one point opened a preliminary investigation into
the Orlando killer, Omar Mateen, but didn’t have the authority to
keep it going for lack of evidence of wrongdoing.
“What’s needed is a fundamental upgrade to America’s
surveillance capabilities,” Pompeo and a co-author wrote
in a Wall Street Journal commentary in January. “Legal and
bureaucratic impediments to surveillance should be removed.”
Pompeo and Sessions want to repeal a 2015 law that prohibits the
FBI and NSA from collecting bulk phone records -- “metadata” such
as numbers called and dates and times -- on Americans who aren’t
suspected of wrongdoing.
"Congress should pass a law re-establishing collection of all
metadata, and combining it with publicly available financial and
lifestyle information into a comprehensive, searchable database,"
Pompeo wrote.
Press aides for Sessions and Pompeo declined to comment.
Warrantless Interceptions
Sessions has opposed restraints on NSA surveillance and said in
June that he supported legislation to expand the types of internet
data the FBI can intercept without warrants.
Congress is also expected to consider legislation early next year
that would renew the government’s ability to collect the content of
e-mail and other internet activity from companies such as Google and
Facebook Inc.
Under the Prism program, investigators pursuing suspected
terrorists can intercept the content of electronic communications
believed to come from outside the U.S. without specific warrants even
if one end of the communications is inside the country or involves an
American.
Patriot Act
Prism came under criticism when it was exposed by Snowden, the
former NSA contractor who stole hundreds of thousands of documents on
agency surveillance programs. Section 702 of the USA Patriot Act,
under which Prism and other spy programs are conducted, is set to
expire at the end of 2017 if it isn’t reauthorized by Congress.
James Comey, director of the Federal Bureau of Investigation, has
said he also wants to renew a debate early next year about whether
Apple and other companies can resist court warrants seeking to unlock
encrypted communications. The agency went to court trying to force
Apple to create new software to crack password protection on a phone
used by the shooter in San Bernardino.
“Boycott Apple until they give up the information,” Trump said
at a rally in South Carolina in February. He said Tim Cook, Apple’s
chief executive officer, “is looking to do a big number, probably
to show how liberal he is. Apple should give up.”
While the FBI dropped that case against Apple after buying a tool
to hack into the phone, the increasing use of encryption on mobile
devices and messaging services remains a challenge to national
security and law enforcement agencies.
Browsing History
Republicans led by Senate Intelligence Committee Chairman Richard
Burr of North Carolina are expected to re-introduce legislation
requiring companies to give investigators access to encrypted
communications.
The FBI is also seeking legislation that would allow it to obtain
“non-content electronic communication transactional records,”
such as browsing histories and computer Internet Protocol addresses,
without court oversight or a warrant.
Sessions and Burr supported the legislation earlier this year,
while it was opposed by major technology groups as well as Google and
Facebook.
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