In the months following the 9-11 terror attacks, as America’s intelligence agencies struggled to explain how they missed connecting the dots leading to the attacks, there began a major push both inside and outside government to ensure such a lapse never occurred again. The focal point of this push was the intelligence community’s ability to access what it determined to be critical information -- emails, text messages, phone calls, and any other digital communication -- necessary for collecting and analyzing to find “suspicious” activity. The result of this fervor was one of the biggest expansions of government power in American history, with the only privacy protections being promises that this newfound power would only be used in pursuing terrorists.
As one might guess, such assurances would quickly ring hollow. In the years since 9-11, startling reports have emerged showing these powers used increasingly for non-terrorism related crimes, and the data of innocent Americans collected by these agencies is regularly mishandled and misused; sometimes even against individuals for purely political purposes, such as targeting concealed carry permit holders. To make matters worse, even with virtually its every wish for more power granted, the intelligence community still missed a number of deadly terror attacks on U.S. soil.
The tide against such broad and unfettered spying powers, and their questionable results, began to shift in May 2015, with Rand Paul’s filibuster against the renewal of some sections of the USA PATRIOT Act; a law previously renewed time and again with no real debate despite its glaring constitutional problems. Paul’s initiative, however, did result a short time later with the passing of the USA Freedom Act – a limited but significant first step towards more comprehensive reform.
However, if such desperately needed reform is to happen anytime soon, we must continue to fight for privacy rights under the new administration of Donald Trump.
There actually are some hopeful signs such reforms may be on the not-too-distant horizon. For example, an onerous component of the Intelligence Authorization Act, which would have allowed the FBI to access email and browsing histories without a warrant, was stripped from the bill last week by the Senate Select Committee on Intelligence. On the crucial victory for privacy rights, Democratic committee member Sen. Ron Wyden commented that “spying on a person’s browsing history is incredibly invasive – almost like a window into their thoughts”; he added, “our Founding Fathers rightly argued that such intrusive searches should be approved by independent judges.” Additionally, the popular, bipartisan Email Privacy Act was reintroduced in Congress earlier this month, and seeks to close a loophole that, according to the Electronic Freedom Foundation (EFF), “allows law enforcement to access emails and other communications that have been stored on a server for more than 180 days.”
Though not sweeping reforms by any means, these steps signal an important change in how some members of Congress view privacy rights that would have been unthinkable only a few years ago. Of course, there are challenges as well, such as this week’s confirmation of noted surveillance hawk Mike Pompeo as CIA Director. Pompeo is on record calling for “re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database.” At the helm of the CIA, with direct access to Trump’s ear, he will be a formidable obstacle to meaningful surveillance reform.
Pompeo and others in the intelligence community are sure to point to the recent terror attacks in Ft. Lauderdale, Orlando, and San Bernardino as examples of why these spying powers are essential to keeping America safe. Yet, ISIS’ changing tactics -- focusing on lone-wolf attacks rather than complex plans like 9-11 -- make such broad surveillance powers even less relevant to today’s War on Terror. Instead of “networks of terror” colluding together across the globe, recent terrorists are radicalized discretely via the internet and social media. Moreover, many of these terrorists were already on the FBI's radar, making a warranted search of digital records possible without the need for unnecessary and unconstitutional legislation such as the USA PATRIOT Act, and FISA.
This makes Congress’ role in seeking to revive personal privacy in America all the more crucial, whether passing its own reforms, or resisting pressure from the Executive Branch for more power.
Fortunately, for all his tough talk, Trump seems open to policy recommendations from all sides as he marches into his first 100 days. Furthermore, the anti-Washington, pro-citizen message outlined in his Inaugural address is more in line with privacy reforms than further increasing the power of intelligence agencies to spy on innocent Americans. This could create a golden opportunity for change if Congress takes the lead in working with the Executive on a roadmap for reform that strikes a real balance between national security needs, and restoring personal privacy rights lost in the last 15 years.