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Five questions for Mr. Wray

Tomorrow the Senate Judiciary Committee is scheduled to hold a confirmation hearing for Christopher Wray, U.S. President Trump’s pick to succeed James Comey as the director of the Federal Bureau of Investigation (FBI).

The FBI is a large part of the U.S. intelligence community, with a broad mission related to crime and national security. Unfortunately, when pursuing that mission the FBI has taken to treading frequently on the human rights of people in the United States and around the world. For example, Director Comey’s pursuit of Apple in the federal court system, if successful, would have required Apple to take steps to undermine the security of all of its devices, which would have threatened to undermine digital security globally. Because of these potential impacts, we have five questions we hope members of the committee will ask Mr. Wray. We’ll be listening.

1.) Do you support the development and use of strong encryption?

Encryption is often the first, best defense against unauthorized access to data and systems. While encryption is not a panacea, it plays a vital role in the prevention of data breaches and other internet-enabled crime. It has even been shown to prevent street crime. However, rather than encouraging companies to develop stronger encryption tools to better protect people and companies, the Bureau has instead pursued a long-term campaign to detract from the push for greater security.

Mr. Wray, will you work with other stakeholders, including academics, technologists, and human rights advocates to develop and pursue rights-respecting mechanisms to investigate criminal and terrorist activity without compromising the integrity of communications and systems?

2.) Will you work with Congress to pursue a statutory framework for FBI hacking operations?

After encountering procedural hurdles to government hacking operations, the Bureau actively pursued a change in the Federal Rules of Criminal Procedure to broadly allow magistrate judges to approve hacking applications for any jurisdiction. However, this change preceded any statutory authority on government hacking, meaning Congress has never spoken to hacking as a “search” mechanism. While the FBI has analogized hacking to traditional search techniques, the truth is that it is broader, more invasive, and comes with much higher risks to both targets and non-targets. Additionally, judges, including magistrate judges, do not have the technical expertise to adequately account for these differences, leading to decisions like the one on June 23rd when a judge held that the FBI could engage in hacking with no warrant at all.

Mr. Wray, will you pursue a legal framework for hacking operations that accounts for its unique attributes and will provide certainty to agents in operations when they seek to use hacking techniques?

3. Can you commit to obtaining a warrant before accessing protected information of individuals, which includes so-called “public” or third-party information collected over time that can reveal private habits?

As our world becomes increasingly digital, more and more of our personal information is available to both active and passive interception either directly or via third-party intermediaries. In isolation some of this information may not invade the privacy interest of a person. However, the analysis of data collected en masse or over time, including analysis conducted through the use of automated scanning and algorithms, can undoubtedly reveal highly personal information about a person, including their relationships and habits. Some academics refer to this as the “mosaic theory,” meaning that any individual piece of data in isolation is less valuable than that information viewed alongside massive amounts of other data. The Supreme Court appears to be on the verge of determining that government agents need a warrant for at least some of this data, but it may be years before the court has the opportunity to consider the full range of the impact of big data and analysis on rights.

Mr. Wray, will you commit the Bureau to obtaining a warrant prior to surveillance operations that will implicate personal information?

4.) In regard to the renewal of Section 702 of the FISA Amendments Act, will you support reform to better protect rights?

Section 702 of the FISA Amendments Act, the law that authorizes broad surveillance programs known as “Prism” and “Upstream,” is due to expire at the end of 2017. The law grew out of the NSA’s warrantless wiretapping program in the wake of the September 11th attacks, although it authorizes conduct far in excess of what was considered “necessary” in that initial program. With  agencies of the intelligence community implementing recent changes to the way these programs operate, as well as new reports about the broad use, and misuse, of the law, there is clear momentum toward either reforming the law prior to, or in conjunction with, re-authorization — or, absent this absolutely necessary reform, letting it expire. In the passage of previous reform packages, the engagement of officials in the intelligence community has been important.

Mr. Wray, will you engage on reforms of Section 702 instead of pushing for a so-called “clean” reauthorization that will exacerbate the problems with the law and further entrench its broad reach into the U.S. legal system?

5.) Can you pursue public transparency on the Bureau’s use of surveillance tools and technologies and, where it doesn’t exist, will you develop the infrastructure needed to provide that transparency?

It is more important than ever for government officials, including in the United States, to commit to providing public transparency on the procurement and use of surveillance tools and technologies and the exercise of surveillance authorities. Despite this, many of the Bureau’s activities are still largely opaque and stories abound about the (sometimes extreme) measures the FBI takes to keep its secrets. Making this problem worse, the current Director of National Intelligence, Dan Coats, has actively disavowed earlier promises to provide additional information to the public about U.S. surveillance efforts. Yet transparency whenever possible is necessary for accountability to the public. Otherwise, we make it easy for these powers to be abused.

Mr. Wray, will you be a champion for transparency within the Bureau and provide as much information as possible? Additionally, where the tools do not currently exist to provide that transparency, will you devote resources to pursue the changes and upgrades needed to ensure transparency in future operations?

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