Privacy SOS

Trump administration pushes warrantless surveillance bill, and we must stop it

Last week, DHS secretary Kirstjen Nielsen celebrated US independence by publishing an op-ed in the Washington Post calling on Congress to pass an Orwellian surveillance law. The measure, Senator Ron Johnson’s “S.2836 – Preventing Emerging Threats Act of 2018,” would enable the government to arbitrarily shoot down drones, and wiretap communications without warrants. The bill was heard before the Senate Committee on Homeland Security and Governmental Affairs, which reported it out of committee favorably in mid-June. In a letter to lawmakers, the ACLU called the proposal “an enormous unchecked grant of authority to the government to forcefully remove drones from the sky in nebulous security circumstances.” It must be stopped.

According to its supporters, the legislation aims to address the possibility that foreign governments or malicious actors could use a drone to commit a terrorist attack or interfere with US critical infrastructure. But while that’s a real issue that Congress should consider, S.2846—the Trump administration’s preferred legislation—uses a sledgehammer approach where a scalpel is required. A cynical observer might even think, after carefully reviewing the bill, that the government is using the hypothetical threat of drone attacks on the United States to pass a sweeping surveillance authority enabling federal agencies to warrantlessly wiretap and otherwise surveil domestic communications.

Under S. 2836, DHS and DOJ personnel would be able to track, disable, take control of, seize, and even destroy drones without adequate due process protections and in non-emergency situations. The bill also authorizes these agencies to intercept any wire, oral, or electronic communications used to control the drones—without warrants. Even worse, the legislation allows law enforcement to use and share these warrantlessly wiretapped communications in ways that have nothing to do with the reason for their seizure.

The bill’s supporters claim it’s necessary to exempt DHS and DOJ from the requirements of electronic privacy laws in this space because of emergency threats. But that’s a transparently silly claim. Every single domestic surveillance law includes an emergency exception, allowing law enforcement to conduct surveillance without judicial authorization and then go back to the court to justify it after the fact. S. 2836 exempts law enforcement from even this basic requirement, allowing these agencies to conduct warrantless spying under non-emergency circumstances, when it is “necessary to mitigate threat that an unmanned aircraft system or unmanned aircraft poses to the safety or security of a covered facility or asset,” and never requiring them to explain or justify the surveillance later.

In other words, S. 2836 authorizes warrantless search and seizure. The bill’s first line reads, “Notwithstanding…any provision of title 18, United States Code…” Title 18 is the US Criminal Code, and it contains important protections regarding the interception of wire, oral, and electronic communications. Exempting DHS and DOJ from those requirements would give federal law enforcement substantial new powers.

During the hearing on the bill in May, Deputy General Counsel for DHS Hayley Chang identified this surveillance exemption as a key portion of the bill, claiming that because US privacy laws have not kept up with technological changes, they can impede the government’s ability to protect the public. (Civil libertarians including the ACLU have long argued that electronic privacy laws are outdated. Our remedy, however, is to strengthen them—not give federal law enforcement permission to ignore existing laws.) Again, existing laws give the government plenty of flexibility in emergencies. But while laws like the Wiretap Act require law enforcement to go back and justify emergency surveillance after the fact, S. 2836 does not require any sort of checks or balances to ensure searches are justified, or that the seized communications are used responsibly. The bar for information retention is alarmingly low as well. Information can be accessed and seized “to the extent necessary to support a function of” DHS or DOJ.

Despite these problems, the committee forwarded the bill with a favorable report. Now, there’s a real danger Congress will attach it to must-pass legislation like the National Defense Authorization Act.

Congress must reject this legislation unless it is substantially altered. The current text ignores fundamental privacy protections, allows for broad collection, retention, and sharing of information, and fails to establish any meaningful checks and balances to ensure that its powers are used in ways that respect civil rights and civil liberties. At the hearing, representatives from DHS and the FBI emphasized that the threat of malicious drone use is imminent and extremely dangerous to national security. The threat certainly should be addressed, but it should be done in a way that is mindful of civil liberties. This bill fails that test.

This blog post was co-authored by Iqra Asghar and Kade Crockford.

© 2018 ACLU of Massachusetts.