{"id":17341,"date":"2017-07-10T14:56:33","date_gmt":"2017-07-10T18:56:33","guid":{"rendered":"http:\/\/www.megalextoria.com\/wordpress\/?p=17341"},"modified":"2017-07-10T14:56:33","modified_gmt":"2017-07-10T18:56:33","slug":"trumps-fbi-pick-has-a-troubling-history-on-digital-liberties","status":"publish","type":"post","link":"https:\/\/www.megalextoria.com\/wordpress\/index.php\/2017\/07\/10\/trumps-fbi-pick-has-a-troubling-history-on-digital-liberties\/","title":{"rendered":"Trump\u2019s FBI Pick Has a Troubling History on Digital Liberties"},"content":{"rendered":"

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President Donald Trump\u2019s pick to lead the FBI, Christopher Wray, will begin his confirmation process\u00a0next week<\/a>, giving lawmakers an opportunity to press him on his previous statements about expansive surveillance authorities and aggressive copyright prosecution.<\/p>\n

Defense of the USA PATRIOT Act<\/b><\/h2>\n

During his tenure as Assistant Attorney General in the Bush Administration, Wray vocally defended a range of controversial provisions in the USA PATRIOT Act\u2014including Section 215, which would later provide the basis for the bulk collection of Americans\u2019 telephone metadata.<\/p>\n

When Wray went before the Senate Judiciary Committee in 2003 to defend the PATRIOT Act, a Department of Justice document indicated that Section 215\u2019s business records provision had\u00a0never been used<\/a>. Wray insisted that was a sign of restraint: \u201cWe try to use these provisions sparingly, only in those instances where we feel that this is the only tool that we can use.\u201d In fact, as the Privacy and Civil Liberties Oversight Board (PCLOB) made clear in its\u00a0report<\/a>\u00a0on the bulk metadata program, Section 215 was sitting fallow because the Bush Administration was\u00a0already collecting<\/a>\u00a0much of that data\u2014without statutory authorization.<\/p>\n

Granted, Wray didn\u2019t have all of the information about that secretive wiretapping program until 2004, which we\u2019ll 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: \u201csneak and peek<\/a>\u201d 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\u00a0inconsistent with the Fourth Amendment<\/a>; 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.<\/p>\n

Experience teaches that broad grants of surveillance authority are invariably abused, as the PATRIOT Act has been. During Wray\u2019s confirmation process, lawmakers should press him on his insistence that the Act \u201chelped preserve and protect liberty and freedom, not erode them.\u201d<\/p>\n

Outstanding Questions about STELLARWIND<\/b><\/h2>\n

President Bush\u2019s sweeping constellation of warrantless surveillance programs, codenamed STELLARWIND, played a key role in the mythos that surrounded the last two FBI Directors. Wray was\u00a0reputedly<\/a>\u00a0one of the senior Justice Department officials ready to resign if then-Deputy Attorney General James Comey chose to do so over STELLARWIND\u2019s legality\u2014though Wray himself wasn\u2019t aware of its existence at the time. Wray has since praised then-FBI Director Bob Mueller\u2019s willingness to challenge President Bush over those surveillance programs, telling\u00a0WIRED<\/a>, \u201cI think that the great thing about [people with] strong moral compasses is that they don\u2019t have to hand-wring. When they\u2019re uncomfortable, they know what they have to do.\u201d<\/p>\n

But when Wray was confronted with a constitutional concern about those intelligence efforts, his response, as reflected in a\u00a02009 inspector general report<\/a>, seems to have been underwhelming. Wray was read into STELLARWIND in 2004 to address concerns that the government\u2014in working to preserve the spying program\u2019s secrecy\u2014was failing to disclose potentially exculpatory material to which criminal defendants were entitled under the Constitution. As the Justice Department\u2019s Inspector General later found, \u201c[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.\u201d What legal analysis had been conducted was, the IG would later write, \u201cfactually flawed and inadequate.\u201d<\/p>\n

Wray and another attorney in the Justice Department\u2019s Criminal Division were tasked with reviewing it. But beyond ordering the other attorney to write a memo of his own, it\u2019s 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 \u201care not complete and do not fully ensure that the government has met its discovery obligations.\u201d<\/p>\n

Before he\u2019s given the top job at the country\u2019s 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.<\/p>\n

Aggressive Copyright Prosecutions<\/b><\/h2>\n

As Assistant Attorney General for the Criminal Division, Wray also oversaw and touted the Justice Department\u2019s aggressive prosecutions for intellectual property infringement, some of them alarmingly trivial. In 2004, for instance, Wray\u00a0named<\/a>\u00a0a guilty plea from a defendant who shared a pre-release copy of \u201cThe Hulk\u201d 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, \u201cThat movie sank like a rock at the box office. Within a couple of weeks, they probably could not have given away the copies.\u201d Still, the impact on the defendant was very real\u2014including six months\u2019 home confinement.<\/p>\n

In a climate in which copyright law is increasingly abused to\u00a0chill and deter<\/a>\u00a0speech online, Wray\u2019s past comments are cause for concern. Lawmakers should press him to commit to reasonable enforcement and respect for free expression protections.<\/p>\n

An Obligation to Explain\u2014and Reconsider<\/h2>\n

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\u2019s 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.
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