Your data may be at the disposal of the United States president – regardless of whether you did anything wrong. President Barack Obama’s administration, and soon President-elect Donald Trump’s, has sweeping powers to spy on both US citizens and others without a warrant and, in some cases, with little or no oversight from Congress. If you get caught in the government’s dragnet, the authorities can keep your data and search it for years to come.
If this sounds like a recipe for abuse, it is.
John Tye, a former State Department employee and whistleblower, alerted the public in 2014 – and again this month – about Executive Order 12333, which grants vast global spying powers to the US intelligence agencies. The order effectively gives the government carte blanche to monitor the rest of the world, along with broad powers for the surveillance of people in the US as long as no other law stands directly in the way. One of the most alarming aspects of 12333 is that the government believes the order allows it to vacuum up and store any data it likes, and that there is no need to worry about anyone’s privacy or other rights until a government agent actually looks at a particular communication. Such a view of privacy is plainly incompatible with human rights and – given the potential impact of such broad surveillance on things like free expression – poses risks to democracy.
EO 12333 is not the only legal basis for surveillance to keep an eye on during the next administration. For example, the government uses Section 702 of the Foreign Intelligence Surveillance Act to justify some very large-scale snooping on private data, including the automatic scanning of virtually all internet communications that pass through the undersea cables that connect the US to the rest of the world. Under Section 702, the government also secretly demands what are likely vast amounts of e-mail correspondence and other user data from US-based internet service providers.
President-elect Trump has said little concerning his views about surveillance, aside from calling for what would be discriminatory surveillance of mosques. President Obama, however, can and should start addressing these unchecked powers before he leaves office, including by releasing all of the surveillance policies and judicial decisions the public needs to have a meaningful debate about the proper limits to what the government can do with their data. Furthermore, Congress urgently needs to step up its oversight role, especially where 12333 is concerned.
The time for this is not when serious surveillance-related abuses have been revealed by hypothetical future whistleblowers. The time for this is now.