• Tag Archives FBI
  • Trump’s FBI Pick Has a Troubling History on Digital Liberties

    President Donald Trump’s pick to lead the FBI, Christopher Wray, will begin his confirmation process next week, giving lawmakers an opportunity to press him on his previous statements about expansive surveillance authorities and aggressive copyright prosecution.

    Defense of the USA PATRIOT Act

    During his tenure as Assistant Attorney General in the Bush Administration, Wray vocally defended a range of controversial provisions in the USA PATRIOT Act—including Section 215, which would later provide the basis for the bulk collection of Americans’ telephone metadata.

    When Wray went before the Senate Judiciary Committee in 2003 to defend the PATRIOT Act, a Department of Justice document indicated that Section 215’s business records provision had never been used. Wray insisted that was a sign of restraint: “We try to use these provisions sparingly, only in those instances where we feel that this is the only tool that we can use.” In fact, as the Privacy and Civil Liberties Oversight Board (PCLOB) made clear in its report on the bulk metadata program, Section 215 was sitting fallow because the Bush Administration was already collecting much of that data—without statutory authorization.

    Granted, Wray didn’t have all of the information about that secretive wiretapping program until 2004, which we’ll get into below. Still, his insistence that Section 215 was just an effort to bring counterterrorism powers in line with ordinary criminal authorities reflected a concerning lack of skepticism about the risk of abuse. The same holds for his defense of a range of other PATRIOT Act provisions: “sneak and peek” warrants that allow law enforcement to search first and serve notice later; a reduced bar for obtaining a FISA warrant that one district court later found inconsistent with the Fourth Amendment; and a vaguely worded expansion of the kind of Internet data, some of it potentially very sensitive, that can be collected with a pen/trap order.

    Experience teaches that broad grants of surveillance authority are invariably abused, as the PATRIOT Act has been. During Wray’s confirmation process, lawmakers should press him on his insistence that the Act “helped preserve and protect liberty and freedom, not erode them.”

    Outstanding Questions about STELLARWIND

    President Bush’s sweeping constellation of warrantless surveillance programs, codenamed STELLARWIND, played a key role in the mythos that surrounded the last two FBI Directors. Wray was reputedly one of the senior Justice Department officials ready to resign if then-Deputy Attorney General James Comey chose to do so over STELLARWIND’s legality—though Wray himself wasn’t aware of its existence at the time. Wray has since praised then-FBI Director Bob Mueller’s willingness to challenge President Bush over those surveillance programs, telling WIRED, “I think that the great thing about [people with] strong moral compasses is that they don’t have to hand-wring. When they’re uncomfortable, they know what they have to do.”

    But when Wray was confronted with a constitutional concern about those intelligence efforts, his response, as reflected in a 2009 inspector general report, seems to have been underwhelming. Wray was read into STELLARWIND in 2004 to address concerns that the government—in working to preserve the spying program’s secrecy—was failing to disclose potentially exculpatory material to which criminal defendants were entitled under the Constitution. As the Justice Department’s Inspector General later found, “[T]he Department made little effort to understand and comply with its discovery obligations with Stellar Wind-derived information for the first several years of the program.” What legal analysis had been conducted was, the IG would later write, “factually flawed and inadequate.”

    Wray and another attorney in the Justice Department’s Criminal Division were tasked with reviewing it. But beyond ordering the other attorney to write a memo of his own, it’s not clear Wray took any action to remedy the problem. While the memo recommended further research, there seems to have been no follow up. Four years after Wray left the Justice Department, its Inspector General would write that efforts to comply with the Constitution and other legal responsibilities “are not complete and do not fully ensure that the government has met its discovery obligations.”

    Before he’s given the top job at the country’s law enforcement agency, Wray should have to square his praise for officials willing to challenge unconstitutional surveillance with his apparent inaction on a constitutional question about the rights of defendants swept up in spying programs.

    Aggressive Copyright Prosecutions

    As Assistant Attorney General for the Criminal Division, Wray also oversaw and touted the Justice Department’s aggressive prosecutions for intellectual property infringement, some of them alarmingly trivial. In 2004, for instance, Wray named a guilty plea from a defendant who shared a pre-release copy of “The Hulk” in a chat room as one of the most significant intellectual property prosecutions of the year. That emphasis seems disproportionate, to say the least. As Senator Leahy put it in the same Judiciary Committee hearing, “That movie sank like a rock at the box office. Within a couple of weeks, they probably could not have given away the copies.” Still, the impact on the defendant was very real—including six months’ home confinement.

    In a climate in which copyright law is increasingly abused to chill and deter speech online, Wray’s past comments are cause for concern. Lawmakers should press him to commit to reasonable enforcement and respect for free expression protections.

    An Obligation to Explain—and Reconsider

    If confirmed, Christopher Wray will lead an agency with vast power to intrude on fundamental digital liberties. During his last tour in government service, he expressed views that should concern everyday Internet users. During this upcoming confirmation process, we expect lawmakers to review Wray’s record, and we hope he will disavow some of his more dangerous views on the government surveillance activities that we know to violate our core civil liberties.

  • Secret Court Orders Aren’t Blank Checks for General Electronic Searches

    Imagine this: the government, for reasons you don’t know, thinks you’re a spy. You go on vacation and, while you’re away, government agents secretly enter your home, search it, make copies of all your electronic devices, and leave. Those agents then turn those devices upside down, looking through decades worth of your files, photos, and online activity saved on your devices. They don’t find any evidence that you’re a spy, but they find something else—evidence of another, totally unrelated crime. You’re arrested, charged, and ultimately convicted, yet you’re never allowed to see what prompted the agents to think you were a spy in the first place.



    Sounds like something from dystopian fiction, right? Yet it’s exactly what happened to Keith Gartenlaub. In January 2014, the FBI secretly entered Gartenlaub’s home while he and his wife were on vacation in China. Agents scoured the home, taking pictures, searching through boxes and books, and—critically—making wholesale copies of his hard drives.

    Agents were authorized by the secret Foreign Intelligence Surveillance Court (“FISC”) to search for evidence that Gartenlaub was spying for the Chinese government. There’s only one problem with that theory: the government has never publicly produced any evidence to support it. Nevertheless, Gartenlaub now sits in jail. Not for spying, but because the FBI’s forensic search of his hard drives turned up roughly 100 files containing child pornography, buried among thousands of other files, saved on an external hard drive.

    Gartenlaub was tried and convicted, and he appealed his conviction to the Ninth Circuit Court of Appeals. EFF (along with our friends at the ACLU) recently filed an amicus brief in support of his appeal.

    There are plenty of troubling aspects to Gartenlaub’s prosecution and conviction. For one, and unlike normal criminal prosecutions, neither Gartenlaub nor his lawyers have ever seen the affidavit and order issued by the FISC that authorized the search of his home. There are also legitimate concerns about the sufficiency of the evidence used to convict him.

    But we got involved for a different reason: to weigh in on the Fourth Amendment implications of the FBI’s searches of Gartenlaub’s electronic devices. The unusual facts of this case gave us an unusually good opportunity to push for greater Fourth Amendment protections in all searches of electronic devices.

    Here’s why: when agents copied and searched Gartenlaub’s devices, they were only authorized to search for national security-related information. But the prosecution that resulted from those searches and seizures had nothing to do with national security at all. So, either the FBI seized information that was outside of the warrant (which the Fourth Amendment prohibits); or it was relying on an exception to the warrant requirement, like “plain view”—an exception that allows law enforcement to seize immediately obvious contraband when the government is in a place to lawfully observe it.

    Plain view makes sense in the physical world. If cops are executing a search warrant for a home to search for drugs, they shouldn’t have to ignore the dead body lying in the living room. But the way plain view works in the digital context—especially forensic computer searches—is not at all clear. How far can cops rummage around our computers for the evidence they’re authorized to look for? Does a warrant to search for evidence of drug dealing allow cops to open all the photos stored on our computer? Does an order authorizing a search for national security information let the government rifle through a digital porn collection? And where do we draw the line between a specific search, based on probable cause for specific information stored on a computer—which the Fourth Amendment allows— and a general search for evidence of criminal activity—which the Fourth Amendment prohibits?

    Our electronic devices contain decades’ worth of personal information about us. And, in many ways, searches of our electronic devices can be more intrusive than searches of our homes: there is information stored on our phones, computers, and hard drives, about our interests, our political thoughts, our sexual orientations, or religious beliefs, that might never have been previously stored in our homes—or, for that matter, anywhere at all. Because of the sensitivity of this data, we need clear restrictions on law enforcement searches of our electronic devices, so that every search doesn’t turn into the type of general rummaging the Fourth Amendment was designed to prevent.

    In our brief, we argued this case gave the Court a perfect opportunity to set a clear rule. We argued that the FBI’s search of Gartenlaub’s hard drives for evidence of regular, domestic crimes violated the Fourth Amendment, and we urged the Court to adopt a rule that would prohibit the FBI from using evidence that it obtained that was outside the scope of the initial search authorization. This would be a promising first step in limiting law enforcement’s electronic search powers and in protecting our right to privacy in the digital age.

    Source: Secret Court Orders Aren’t Blank Checks for General Electronic Searches | Electronic Frontier Foundation


  • FBI Throws Up Digital Roadblock to Transparency

    Beginning March 1, FBI Will No Longer Accept FOIA Requests Via Email

    It’s well documented that the FBI is keen on adopting new technologies that intrude on our civil liberties. The FBI’s enthusiasm for technology, however, doesn’t extend to tools that make it easier for the public to understand what the agency is up to—despite such transparency being mandated by law.

    The FBI recently announced that it’s removing the ability for the public to send Freedom of Information Act (FOIA) requests to the agency via email. Instead, the FBI will now only accept requests sent through snail mail, fax, or a poorly designed and extremely limited website.

    The FBI’s decision to abandon email—a free and ubiquitous method of communication—as a means of sending in FOIA requests will make sending requests to the agency far more difficult. The decision will thus undoubtedly thwart both transparency and accountability, and the FBI must be well aware of this. In a world in which thermostats and toasters are increasingly connected to the Internet, the FBI’s rejection of emailed FOIA requests is a slap in the face to transparency. The FBI’s decision is all the more galling given that other agencies are currently embracing technologies that both help people making FOIA requests and help the agencies more efficiently and effectively process them.

    What’s more, the FBI’s alternative solution—it’s new “E-FOIA” website website—is no solution at all. The website places a 3,000 character limit on requests and has technical barriers that prevent automated FOIA requests. These constraints significantly limit the amount of information people can seek via a single request and needlessly slow down the process.

    Perhaps the biggest problem is the website’s terms of service, which place limits on the types of requests that can be filed digitally. They suggest the website will not accept FOIA requests seeking records about FBI operations, activities, or communications. Not only does this make no sense from a technical standpoint, it runs directly counter to the very purpose of FOIA: ensuring that the public can learn about an agency’s operations and activities.

    EFF is grateful to Sen. Ron Wyden (D-Or.), who sent a letter (pdf) to the FBI on Friday highlighting many of the concerns we have about the FBI’s abandonment of email and its reliance on an problematic website. We look forward to the FBI’s response.

    The FBI’s recent announcement makes one thing clear: Congress should—and easily could—update FOIA to require all federal agencies, including the FBI, to accept FOIA requests via email. In the digital world we live in, this is a no-brainier. EFF has been calling for this simple fix, along with a host of other changes, for some time, and we remain committed to supporting legislative efforts that increase government transparency.

    Source: FBI Throws Up Digital Roadblock to Transparency | Electronic Frontier Foundation