James Comey, nominee for director of the U.S. Federal Bureau of Investigation, has been called a privacy hero: to digital rights defenders, he’s best known for standing up to the Bush administration’s attempts to conduct warrantless wiretaps. But during a U.S. Senate confirmation hearing for his appointment this week, Comey failed to take a stand against the U.S. government’s widely publicized recent intrusions into personal privacy. However, despite Comey’s hesitancy, many of the members of the Senate Judiciary Committee signaled their support for important reform.
Throughout the hearing, Comey offered support for the ongoing widespread collection of communications metadata and failed to get behind any of the reasonable reform ideas offered by Senators regarding the FISA court, or FISC, the secret national security court that approved the NSA’s ongoing surveillance programs. The court, which has been accused of failing to uphold the principles of due process, secretly approves widespread surveillance without adversarial contestation and almost never rejects surveillance authorizations.
Although Comey offered little in the way of objections to surveillance, he faced surprising resistance from various senators on this issue. Senator Blumenthal, a former state Attorney General, suggested the creation of a special advocate in the FISA court to challenge the government’s positions, making the process adversarial and introducing due process into the secret court—a recommendation that was echoed by former FISC judge James Robertson at the first public meeting of the national Privacy and Civil Liberties Oversight Board (PCLOB), happening the same day.
As Senator Blumenthal pointed out, the FISC is the only federal court where the Chief Justice of the Supreme Court appoints all judges, and hearings occur in secret—circumstances antithetical to true public oversight. Senators Durbin and Schumer picked up on the issue of oversight via transparency: both asked the nominee about the possibility of declassifying certain key FISA court opinions. As someone who went on record that “Transparency is a key value, especially when it helps the American people understand what the government is doing to try to keep them safe,” Comey ought to be first in line to support the declassification of certain FISA court opinions.
When asked about the possibility of specific FISA court reforms, Comey only offered generic promises to investigate the issues at hand. His defense of oversight of the FISC essentially boiled down to “trust us,” as he suggested that ‘anyone who knows federal judges knows they would not be a rubber stamp’ on the issue, and then argued it was difficult to prove effective oversight of a functioning system. However, when faced with the evidence—last year 1,856 requests were made to the FISA court and 1,856 were accepted—it raises the question of exactly whom the system is actually functioning for.
Comey also received pushback on the issue of metadata collection, a contentious issue with government representatives who continue to claim metadata is less sensitive than communications content. Senator Lee expressed the belief that there is a serious constitutional question raised by the collection of metadata of millions of Americans. Senator Lee argued that, as we’ve written before, the constitutional consideration changes drastically when collection is widespread. When Comey was asked whether he agrees with this sentiment, he simply said that it was an interesting question that he had not yet considered, though he understands the viewpoint of those who argue against the program’s constitutionality.
We’re with Senator Lee: the government has gone too far in collecting metadata of innocent people, should minimize its scope, and should recognize that past interpretations of the constitutionality of metadata collection should acknowledge a significant change in the scale and scope of digital tracking. Though Comey did consider the possibility that widespread metadata intrudes into our reasonable expectation of privacy, he clearly believes the collection of metadata is a powerful part of the FBI’s investigatory powers and indicated his intention to continue to expand the FBI’s role as an intelligence organization.
However, Comey’s responses weren’t totally bad: at times, he showed the willingness to defend personal liberties that had previously endeared him to so many civil liberties advocates. When asked whether the Electronic Communications Privacy Act (ECPA) is constitutional in allowing authorities to access the content of emails older than 180 days without a warrant, Comey replied that in the negative, asserting that, “unlike your yogurt,” the Fourth Amendment does not have an expiration date.
Comey is correct. The Fourth Amendment does not expire, nor does it allow the intrusion into the private content of millions of Americans. We urge Comey, who will soon be confirmed by the Senate, to use his tenure to lead the FBI away from privacy intrusion and towards new policies which respect due process and privacy of millions of Americans.