Privacy SOS

James Comey defends NSA’s mass, routine associational spying, so it’s up to us to kill it

James Comey will likely become the next FBI director, although Senator Rand Paul has said he might draw the issue out over current director Robert Mueller's refusal to respond to the Senator's inquiry about domestic drone use. 

Who is James Comey? He's been lauded by progressives for his now famous hospital stand, about which writes Salon:

The call came at 8 p.m., Wednesday, March 10, 2004. Attorney General John Ashcroft was in the hospital, struck with a life-threatening case of pancreatitis. Deputy Attorney General James B. Comey was just leaving his office, being chauffeured by his security detail.
 
“I remember exactly where I was, on Constitution Avenue,” Comey testified Tuesday morning before the Senate Judiciary Committee. “And [I] got a call from Attorney General Ashcroft’s chief of staff telling me that he had gotten a call.”
 
So begins a remarkable tale that nearly led to the resignation of the Justice Department’s senior leadership, an ordeal that was recounted in great detail for the first time Tuesday. Two senior White House officials, Andrew Card and Alberto Gonzales, were headed to Ashcroft’s hospital bed, despite the instructions of his wife that there would be no phone calls or visitors. They wanted Ashcroft to sign off on the secret National Security Agency wiretapping program, a program that Ashcroft had already decided to reject before falling ill.
 
Comey was determined to stop them. “So I hung up the phone,” Comey told the committee, and I “immediately called my chief of staff, told him to get as many of my people as possible to the hospital immediately. I hung up, called [FBI] Director [Robert] Mueller and — with whom I’d been discussing this particular matter and had been a great help to me over that week — and told him what was happening. He said, ‘I’ll meet you at the hospital right now.’ [I] told my security detail that I needed to get to George Washington Hospital immediately. They turned on the emergency equipment and drove very quickly to the hospital. I got out of the car and ran up — literally ran up the stairs with my security detail.”
All very exciting and Hollywood, and good for Comey — and Mueller. You can read the rest of the story over at Salon, and you should, because it's very illuminating and even makes one mildly hopeful. But the Comey fairytale ends there, abruptly.
 
Years later, neither Mueller nor his likely successor appear to have any problem with the mass, routine collection of domestic phone and internet records to which their agency is a major beneficiary. The question of NSA's metadata surveillance isn't an idle one for Comey; those incredibly intrusive, revealing records can be mined and accessed by the FBI for use in investigating domestic affairs, whether they be crimes or, well, that other stuff the bureau does. (Remember: the FBI doesn't need to have any reason to believe you are involved in criminal activity before it begins monitoring or investigating you.)
 
What else should we know about James Comey? 
 
He authorized torture, approving a memo that "gave a thumbs-up on waterboarding, wall slams, and other forms of torture – all violations of domestic and international law."
 
 
And then there's the spying. We have heard that Comey valiantly opposed warrantless wiretapping in the Great Bedside Stand, but there's just one glaring problem with that story: after he was read into Bush's warrantless wiretapping program in 2004, he didn't stop the program or defect. That raises the question: What if the program he opposed by Ashcroft's bedside wasn't the wiretapping program at all?
 
The ACLU's Michelle Richards explains [emphasis mine, links stripped]:
While, to his credit, he immediately began raising concerns [with warrantless wiretapping], the program was still in existence when the New York Times exposed it in December 2005. This was a year and a half after Comey's hospital showdown with Gonzales and Card. In fact, the warrantless wiretapping program was supported by a May 2004 legal opinion [] produced by the Justice Department's Office of Legal Counsel and signed off by Comey, which replaced the 2001 legal opinion Comey had problems with.
 
This, of course, raises the question: just what illegal surveillance program did Comey oppose so much he would resign over it? Last weekend, the Washington Post provided a new theory: the Marina program, which collects internet metadata.
If the Washington Post is right, James Comey has made quite an about face in the ensuing years.
 
During the hearing yesterday, Comey said that he isn't read into the current metadata program. Nonetheless, he proceeded to offer a defense of it: "I do know that as a general matter that the collection of metadata and analysis of metadata is a valuable tool in counterterrorism," he told congress. In other words, don't expect anything but the status quo if Mr. Comey is confirmed.
 
Comey largely agrees with the current DOJ leadership on another critical question, as well. Later in the hearing, he said that he thinks the Electronic Communications Privacy Act of 1986 could be updated to include an across the board warrant requirement for email content, positing that the 180 day rule sounds like an "anachronism." 
 
"I don't think the Fourth Amendment, like your yogurt, has an expires-on date on it," he said
 
Good on Comey for saying that the Fourth Amendment doesn't have an expiration date. Tragically, however, he appears to agree with top officials in the Obama administration about its very narrow limits. The words you write in your email may be protected by the Fourth Amendment probable cause warrant standard, they say, but your travel patterns, call logs, and associational behaviors are all totally up for grabs — for fishing, mining, you name it. (If that doesn't immediately read as an incredibly problematic contradiction, you should read Matt Blaze's essay on the significance of metadata.)
 
The government's positions on these two issues — content versus metadata — could not be more important for the future of surveillance policy and even the character of our society in the digital age. 
 
After years of tireless organizing and lobbying by privacy groups, the DOJ has been reduced to shrugging off the content question and has basically conceded to our demands, but it appears to be fiercely opposed to a warrant requirement for location tracking and other metadata. 
 
That leaves us with only one, increasingly obvious conclusion: the federal government is much more interested in the associational data it sucks up with a vacuum cleaner than it is in the content of our communications. And that should tell us something about where we need to orient our efforts.
 
If the US government doesn't have anything to hide about its metadata surveillance program, it should get individual warrants for access to our phone and internet records. If everything is above board and kosher, warrants shouldn't be a problem. The Fourth Amendment doesn't allow broad fishing expeditions into our private lives. The argument that the government can ethically collect all our information and then only look at it when someone becomes implicated in an investigation is a dangerous  red herring. Anyone who tells you different is hiding something, or doesn't understand the issues.
 
PRISM and BOUNDLESS INFORMANT are scary, and so are drones, but if Mr. Paul wants to really help the US public get out from under the crushing weight of a metastasizing surveillance state, he might focus his next Great Rand Stand on metadata and associational surveillance. He could do that by endorsing the ACLU's efforts to repeal Section 215 of the Patriot Act, the 'Business Records' section that the government claims grants it broad, warrantless access to our sensitive, personal information.
 
The hearing yesterday makes clear that James Comey, who doesn't seem to have a problem with the NSA's routine vacuuming of our private information, will not alter the status quo in this regard. That's up to us. It won't be easy, but polls show that many people in the country want to retain the gold Fourth Amendment standard in the digital age.
 
Individualized suspicion and probable cause warrants should be requirements for government access to our sensitive records, full stop. Take action here if you agree. (And if you live in Massachusetts, take action here, too. We've got our own problems.)

© 2021 ACLU of Massachusetts.