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December 19, 2016

Government Surveillance Under a Trump Administration


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As the transition of power from President Barack Obama to President-elect Donald Trump continues, industry and consumer-protection groups continue to scrutinize Trump’s appointments, policy positions and tweets for insight into what a Trump administration might mean for privacy and data security. Although Trump did not lay out specific policy positions concerning these issues during his candidacy, Trump’s cabinet and agency appointments, as well as recent actions of Congress, indicate that intelligence agencies may have an increased role in the collection of data for national security purposes under the Trump administration. Organizations that may be subject to government data requests should carefully review their policies and procedures for managing such requests.

Trump Appointments for Intelligence Agencies

Last month, Trump selected Republican Representative Mike Pompeo to lead the CIA under the new administration. Pompeo has long been an advocate for a robust national security apparatus and an outspoken critic of any move to curtail the government’s surveillance powers, such as the 2015 FREEDOM Act. In an editorial for National Review published earlier this year, Pompeo claimed that the FREEDOM Act “gutted the National Security Agency’s (NSA) metadata program.”[1] This statement echoed a previous editorial published in The Wall Street Journal wherein Pompeo asserted that “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. Legal and bureaucratic impediments to surveillance should be removed. That includes Presidential Policy Directive-28, which bestows privacy rights on foreigners and imposes burdensome requirements to justify data collection.”[2] He also argued that using strong encryption for personal communication “may itself be a red flag.” Such an assertion brought concerned criticism by privacy advocates as it implies that an individual or organization’s data security practices may invite increased scrutiny.

Meanwhile, Privacy advocates are warning that, as with Pompeo, the appointment of Republican Senator Jeff Sessions for Attorney General also foretells a Trump administration that prioritizes national security at the expense of privacy concerns. Like Pompeo, Sessions has advocated for a repeal of the 2015 FREEDOM Act. And earlier this year, Sessions proposed an amendment to the Electronic Communications Privacy Act (“ECPA”), which would have created an “emergency exception” to the privacy protections afforded by the ECPA. Under Sessions’ proposed amendment, service providers would have been required to turn over an individual’s electronic communications, including their content, if a government official declared an emergency. Though the amendment did not pass, it does provide a view into Sessions’ approach to national security and privacy. These appointments for heads of the United States’ intelligence and law enforcement agencies indicate that the Trump White House will take an aggressive position on the powers of the federal government to combat terrorism.

Congressional Action Indicates Increased Surveillance and Data Collection is Likely

While the selection of Pompeo and Sessions appears to indicate a new direction for national security policy in the White House, Congress has already been moving toward a harder line. In particular, the terrorist attacks in San Bernardino and Orlando spurred Congress to reconsider the government’s current approach to national security and mass surveillance. On Congress’s docket for next year is a renewal of Section 702 of the USA Patriot Act, under which Prism and other spy programs are conducted, that would renew the government’s ability to collect the content of e-mail and other internet activity from technology companies. And several lawmakers have, like Pompeo and Sessions, signaled a desire to reconsider mass data collection and other aggressive surveillance practices. Indeed, Senate Republicans are expected to re-introduce legislation similar to Sessions’ proposed amendment to the ECPA, which would require companies to grant investigators access to encrypted communications. Silicon Valley has been nearly unanimous in its protestation against such surveillance and data collection. However, a Trump White House is unlikely to be sympathetic to their concerns. Earlier this year, then-candidate Trump urged a consumer boycott of Apple for their refusal to help the FBI break the encryption of a terrorist’s iPhone. Thus, with national security hawks re-emboldened in Congress and a Trump White House shaping up to be even more aggressive, it seems likely that 2017 will see law enforcement agencies endowed with new powers to demand and collect data, including data from US citizens. In fact, the move toward greater government surveillance appears to have already begun with amendments to the Federal Rules of Criminal Procedure.

Amendments to Rule 41 Allow Mass Surveillance

Lost in the speculation about what might happen next year, an amendment to Rule 41 of the Federal Rules of Criminal Procedure quietly went into effect on December 1st. Under this new rule, submitted by the Supreme Court to Congress earlier this year, the FBI and other law enforcement agencies will be able to search multiple computers across multiple locations with a single warrant. Under the former rules, the government could carry out a search of computers located only in the district where the federal judge granted the warrant, effectively limiting the scope of the warrant to a few counties in a given state. Proponents argue that the new Rule 41 simply recognizes the realities of the Internet age where numerous devices located across the world are all interconnected. However, privacy advocates fear that the new Rule 41 will enable both forum-shopping for judges sympathetic to national security concerns and warrants that are virtually unlimited in scope. It is too soon to say what the practical implications of Rule 41 will be, but in the current political climate, it appears to be merely the first step toward a re-empowered national security apparatus.

Responding to Government Data Requests

Given the likelihood of such an increasingly powerful national security apparatus, all organizations should review their policies and procedures for responding to government data requests. And since consumers are becoming more informed—and concerned—about their privacy, appropriately responding to such data requests is more important and more difficult than ever. Industry best practices in the high-tech space generally include: (1) carefully vetting the data request and requiring a warrant from a judge before disclosing consumer information, (2) publishing and following policies for responding to data requests and informing consumers of such requests, and (3) disclosing when a company has complied with a data request, if applicable.

Vetting a government data request requires a sophisticated knowledge of applicable privacy statutes and case law. In certain instances such as Apple’s response to the FBI request earlier this year, this may involve challenging the data request. But in most cases, the primary task is to tailor a response such that it is responsive to the data request while complying with applicable laws and regulations that restrict the sharing of customer data. An organization may rely on its own privacy counsel or outside counsel to make such a determination. Additional best practices when responding to data requests may include notifying individuals when their data may be affected, unless this is prohibited by law. Such notice should be prompt and sufficient for users to challenge the data request on their own behalf.

With respect to disclosures, nearly all major technology and Internet companies now maintain public-facing websites that describe the company’s practices for responding to data requests. And as with more general privacy policies, it is important that organizations comply with their publicly stated policies. Most major companies also disclose how often they receive government data requests and, more importantly, when the company complies with such data requests.

Navigating a safe course between powerful government agencies and worried consumers is a difficult task, one that will likely become more difficult during the next several years if the US government increases its surveillance powers as anticipated. Though we cannot know for certain what policy objectives the new Trump administration will pursue, it is advisable that entities that operate in this industry space be ready to assess privacy laws and be proactive in preparing appropriate policies and procedures for responding to government inquiries.