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What Electronic Surveillance Would Mean in James Comey's FBI

BY Miranda Neubauer | Tuesday, July 9 2013

At his Senate Judiciary Committee confirmation hearing today, nominee for director of the Federal Bureau of Investigation James Comey said that the collection of metadata is an important tool for counterterrorism efforts, but suggested that a different standard applied to the content of communications.

In nominating Comey to succeed Robert Mueller as FBI director, President Barack Obama praised his "fierce independence" — shortly after disclosures by a former federal contractor revealed that the National Security Agency and FBI have engaged in widespread collection and storage of information about Americans' communications. The NSA stored and analyzed so-called "metadata" — which can include clues to an email sender's location and an email's intended recipient, among other things — of Americans. Comey refused to reauthorize portions of NSA surveillance programs in 2004, although the Guardian reports that the then-acting attorney general remained at the Justice Department for another year as surveillance continued under another legal framework.

Sen. Mike Lee (R-Utah) asked Comey about the Fourth Amendment implications of capturing information about Americans at such a broad scale, "where potentially every American is the target of the kind of data collection we're talking about today."

"It's a really interesting question as to whether the Fourth Amendment framework ... applies as technology changes, or whether, as Justice Sotomayor wrote in the Jones case last year, we ought do think about it differently," Comey replied, "where each of those pieces of metadata is allowing the government to put together a mosaic about you that goes beyond what you would normally expect and intrudes into a reasonable expectation of privacy," Comey said.

He said he did not think the question was settled, and said he hoped the Department of Justice is thinking about it and that "it's a reasonable question to ask."

But he said it would be a different, easier question with regard to the content of e-mails.

"That's the difference, to use the 1970's analogue, between reading the outside of an envelope and opening it and reading your letter." He said he would not see any difference between the government opening somebody's mail and opening somebody's e-mail. "I've always thought of it as a Fourth Amendment event."

Smith said a current provision in the Electronic Communications Privacy Act, which he seeks to change, allows government agents to access the content of e-mails through a request to a provider once they are older than 180 days.

Comey said he agreed with Smith that there was no constitutional difference between e-mails that are 179 or 180 days old.

"I don't think the Fourth Amendment, like your yogurt, has an 'expires on' date on it," he said, adding that he had been unaware of that provision as a prosecutor. "I always thought of it all as content that I would need probable cause to get ... If [there are some within the government who think that this is an appropriate action for government agents to pursue] they are going to be unhappy with me. I see it as you do."

Asked by Sen. Mazie Hirono (D-Hawaii) if he thought there were circumstances where government surveillance of Americans could go too far, he said he could imagine such circumstances. In response to a follow-up question, he said that while he did not know the details of the current programs involving metadata, current safeguards cited in previous testimony by Mueller, the current FBI director, sounded reasonable.

In responses to other Senators' questions, Comey emphasized the need for transparency and responded to concerns about the FISA court.

Senator Patrick Leahy (D-VT), the committee chair, asked whether Comey would work with him as the committee seeks to draft improvements to surveillance laws. "I worry that just because we can do it, it doesn't mean we should," Leahy said.

In response to another question, Comey said he had the impression that many Americans don't understand what the FISA court is or how it works. He said that it is made up of independent federal judges who sit and operate under a statutory regime.

"It is anything but a rubber stamp," he said. Some statements to the contrary, he said, "show you don't have experience before them." He also noted that the process is overseen by Congress and the inspectors general within the executive branch that report to congressional oversight committees.

"It's hard to get the time and space in American life to explain that," he said.

Sen. Charles Schumer (D-NY) asked how the court could not be considered a rubber stamp given that reportedly none of 18 requests to the court were denied. "I know from criminal cases ... where we don't ever want [rejection of wiretaps] to happen and so we work like crazy to make sure we have our ducks in row, we have probable cause easily cleared, because if we lose that credibility with the court, we worry that we will have lost something we can't ever get back," Comey said. "I know that in both FISA and criminal applications for court-ordered wiretaps, the government is extremely conservative in putting together what it presents the to the court."

But he said he would support working towards greater transparency so long it as did not jeopardize security.

"I think if the [American people] understood more, they would feel better about it," he told Senator Dick Durbin (D-Ill.)

Asked by Senator Richard Blumenthal (D-Conn.) his thoughts about adding an advocate for constitutional principles to the courts who could make the process more adversarial and focus on the meaning of terms such as "relevance," Comey said it was a "very good question" that he had not thought about enough to give a complete answer to, but that he hoped the Department of Justice would consider such a suggestion seriously.

Earlier, talking about his opposition to policies of the Bush administration, Comey said he had been guided by the principle questions, "Is it effective, is it legal, and is this what we should be doing."

At the time, he said he had the impression that "only the first two mattered" to the White House.

Comey also emphasized the importance of responding to online threats from cyberterrorism to hacking and addressing the online piracy of intellectual property. He also said that there needs to be a mechanism in place for whistleblowers to report concerns, and that when it is necessary to investigate the disclosure of "secrets that we must keep," it is important to respect the freedom of the press.

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