As FBI surveillance takes center stage, Senator Wyden warns against eroding civil liberties

Sen. Ron Wyden, the Oregon Democrat who has made preserving citizens' privacy in the Digital Age a personal crusade, is in the spotlight this week. He’s fighting to defeat two proposals now percolating on Capitol Hill that privacy advocates say could dramatically expand law enforcement’s surveillance and hacking authorities.

The first: A Republican-led effort to allow the FBI to scoop up email metadata and web browsing history without a warrant in the wake of the Orlando, Fla., terrorist attack. The amendment to the criminal justice spending bill was narrowly defeated Wednesday but is expected to resurface in the coming days.

Meanwhile, tech companies such as Google and PayPal and privacy advocacy groups are publicly urging lawmakers to reject a proposed change to federal criminal procedure rules that could allow judges to issue search warrants for computers outside their districts. Senator Wyden has introduced legislation to block the changes to what’s known as Rule 41.

Passcode talked with Wyden about his privacy push. Edited excerpts follow.

Passcode: The amendment offered by Sen. John McCain (R) to the criminal justice spending bill was just narrowly defeated. Is that the end of the story?

Wyden: There is going to be an effort by the Republican leaders to come back and have it reconsidered. You may have that today, or tomorrow, or some other time. After you have a horrible tragedy like in Orlando, when the public wants safety and liberty, you have policymakers almost in a knee-jerk fashion producing policies that don’t do much of either. This was obviously a close vote and there are going to be others and we’ll be back at our posts. Our side knows that we’re up against tough odds. But to me, the public is picking up that you don’t fight terror by eroding our freedoms for policies that don’t leave them safer.

Passcode: There’s a lot of sensitivity about the pursuit of so-called “lone wolf” terrorists in the wake of the Orlando attack. Would this expanded authority to get these records without a warrant have helped prevent that?

Wyden: Richard Burr (R) said flat out on the floor that this amendment could not have prevented Orlando. The chairman of the Intelligence Committee, who obviously was for the amendment, said point blank this could not have prevented Orlando. (Editor’s note: Burr said Wyden’s assertion that the surveillance expansion would not have stopped San Bernardino or Orlando was “100 percent correct. But I hope there’s no legislation that we’re considering in the United States Senate that’s about a single incident.”)

For times when the safety and security of America is on the line – when there’s an emergency – I got a provision, Section 102, into the USA Freedom Act [the surveillance reform bill that passed last year] that says the government can move immediately to get the information it needs and then come back and settle up after the fact. And the court has never denied the government in a situation like this.

Passcode: Let’s talk about Rule 41. Privacy advocates and tech companies say changing this relatively obscure criminal procedure – a change the Justice Department has been pushing for – would drastically expand the federal government’s hacking powers. There’s been a lot of buzz this week about it this week. Why now?

Wyden: We’ve been working to get some attention to this. There’s a lot going on in the Congress and it’s an incredibly busy year. Conventions are coming up. But if nothing is done, the changes to Rule 41 go into effect in December.

Passcode: You’ve introduced legislation – the Stopping Mass Hacking Act – to block the change the Supreme Court announced in April. What’s the plan?

Wyden: My hope is there will be hearings soon in the Judiciary committee. The plan is to increase the awareness. We’re trying to make sure that people understand how important this is. There’s been a big effort by the government to say, “Well, this is just a modest administrative change.” No way.

When you’re talking about one judge, in effect, being able to issue one warrant for millions of computers – this has implications that are very, very dramatic.

Passcode: On a more technical level, what about the expansion of government hacking powers makes you so upset?

Wyden: By compromising the computer system, it might leave it open to other attackers. What if the government has to turn off the computer’s protection to search it? If the government is out there turning off millions of security features to search it, then from the seat of my pants I would say there could be some serious security threats.

Passcode: The Justice Department wanted this change to the rules because Internet crimes today don’t necessarily adhere to geographic borders. Agents might not know exactly where computers are physically located when they investigate. After a bust of child pornography site Playpen, for instance, district judges in both Oklahoma and Massachusetts invalidated a warrant the FBI obtained from a magistrate judge in Virginia, saying it could not be used to search computers outside that district. Is there another way to get law enforcement the tools it needs without violating privacy?

Wyden: I am not necessarily opposed, in theory, to the granting of a warrant with probable cause to search a single device in an unknown location. But even here there are some tricky issues. What about the person’s Dropbox account? Or banking apps? Does one warrant give the government access to look at the person’s entire electronic storage, all the electronic storage they might have used? Is there going to be a new warrant for each service? These are extraordinarily complicated issues and there ought to be a real debate about it.

Passcode: Part of privacy advocates’ complaint is that these warrants might be able to authorize searches on computers anywhere in the world, and that could set a precedent for other countries try to search computers outside their own jurisdictions, too. Is Congress is considering the global implications of this rule change?

Wyden: The ramifications for being able to use this around the world just compound the problems. I don’t think the Congress is thinking about the global implications – and it should.

Passcode: In Washington, we know everything is an acronym. How did you decide on SMH – Stopping Mass Hacking, or more commonly, Shaking My Head?

Wyden: That was chosen because this was definitely a shaking my head proposition – to act like you’re talking about a small administrative thing that could affect millions of computers, and pretend this is something Congress shouldn’t be debating.