Feb 10, 2017

How the surveillance state could grow under Trump

Photo illustration: Greg Ruben / Axios

Privacy advocates are worried that President Trump and his appointees could expand the government surveillance apparatus.

Why it's on the radar: Trump told conservative radio host Hugh Hewitt that he tends to "err on the side of security" when it comes to debates over NSA surveillance. New Attorney General Jeff Sessions and CIA Director Mike Pompeo both opposed surveillance reforms while they were serving in Congress.

There are several ways backers of expanded surveillance at the White House and in Congress could enhance the government's powers.

Expand surveillance authorized by the White House:

  • The administration could unilaterally expand programs that exist under a Reagan-era executive order, which Bijan Madhani, policy counsel at the Computer & Communications Industry Association, called a "generalized justification for international intelligence gathering."
  • Expanding these surveillance tactics could happen largely without public knowledge, since there's no disclosure requirement
  • Privacy advocates have pushed for more oversight of surveillance conducted under that executive order, also known as 12333. "The first step is start seeing that the committees of jurisdiction in Congress actually conduct oversight of how the executive branch is using this authority," said Robyn Greene, policy counsel at the New America Foundation's Open Technology Institute. "And I think the more oversight they do of 12333 surveillance, the more concerned they'll become."

Turn to Congress:

  • Congress has to reauthorize Section 702 of the Foreign Intelligence Surveillance Act — the law used to justify surveillance of foreign nationals located outside of the United States. It expires at the end of the year and could be made permanent by supporters of more aggressive surveillance.
  • Congress could also look at the efforts to require law enforcement to get a warrant to access digital communications older than 180 days. Some senators tried to insert language into an email privacy bill last Congress that privacy groups say would expand surveillance powers.
  • Members of Congress could also look anew at the reforms that the recent USA Freedom Act brought to surveillance law, though privacy advocates said that doesn't appear likely.

Pick a fight with Silicon Valley on encryption:

  • Federal authorities could once again push technology companies to help them gain access to encrypted data, as the FBI did with Apple last year. The agency's director, James Comey, has called for an "adult conversation" about encryption in 2017 — and he's in a position to bring the issue to the fore again.

Let law enforcement take advantage of expanded hacking powers:

  • A recent change in criminal law gives the government broader hacking powers. While the change is only a few months old, privacy advocates are concerned it might allow the government to gather more information on citizens under a less-strict legal regime.

What to watch: How Trump and his appointees, as well as allies of law enforcement and the intelligence community in Congress, talk about surveillance over the next year will culminate in the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act later this year.

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