The Impact of the 2016 Presidential Election on Lawful Surveillance and Customer Records Disclosures

Author: Trevor Gray, Legal Services Manager

With every presidential election comes some uncertainty. How will policy be impacted by a newly elected chief executive? It is vital that industry players be forward thinking to try and anticipate some of the change and be better prepared to take advantage of it. One critical area of discussion during this election cycle has been that of national security and more specifically cybersecurity and privacy. Electronic communication providers will need to be ready to act, so here is a look at how the candidates stand on issues related to lawful surveillance and records collection.

Trump

The Republican Party platform recognizes the difficulties in straddling the line between privacy and security, but offer few insights into how a consensus will be reached on the issue. Donald Trump has been forthcoming about his views on national security during his campaign. The thing to consider here is that Trump’s policies do not necessarily equal the Republican party’s views. In a radio interview in 2015, Trump stated that he “errs on the side of security” in response to a question about restoring the Patriot Act. Therefore, one can reasonably conclude that he supports the NSA and its domestic surveillance programs and may very well expand upon those existing policies once in office.

One example of this possibility stems from Trump indicating that he is in favor of increasing the scope of both foreign and domestic surveillance programs. He made the remark when campaigning against Democratic nominee Hillary Clinton, saying she and the other career politicians have not done enough to promote the nation’s lawful surveillance efforts. He has fully supported the reauthorization of the Patriot Act, including Section 215, which gives the government broad surveillance powers. Evidence of his support for the government’s ability to obtain electronic data could be seen during the Apple vs FBI investigation when Trump tweeted out that he would be quitting use of Apple products if Apple did not cooperate.

While Trump does not have a public voting record to analyze, his statements and actions in his business life are worth considering. He has stated that he would use every tool at his disposal (possibly including the NSA) to combat his political rivals if elected. He has also been accused by former employees of Trump Resorts of listening in on conversations between staff and hotel guests at one of his resorts.[i] He indicated in a recent interview that he believes all of his phone calls are being monitored and while that is a sad commentary, he is fine with it because he errs on the side of national security concerns.

While some of Trump’s statements and accusations have to be taken with a grain of salt, one can infer that a Trump presidency would certainly not see a scaling back of domestic surveillance authority or related law enforcement investigative tools.

Clinton

The Democratic Party platform supports the position that national security and privacy interests do not have to be mutually exclusive. Hillary is in line with her party’s stance supporting a national commission on digital security and encryption. This bipartisan commission will bring together leaders from the private sector, law enforcement, and other interested groups. However, Hillary Clinton herself has not been as forthcoming in terms of specifics about domestic surveillance and data collection. She has repeatedly hedged her responses when asked about the NSA and its role in the collection of American’s electronic data.

Fortunately, Secretary Clinton has a voting record from her time in public office. She voted against the FISA amendments in 2008. However, she has also supported NSA surveillance programs by voting to reauthorize the Patriot Act and voting for the USA Freedom Act, which preserved the NSA’s domestic surveillance powers in non-bulk form.

Hillary stated in 2015 that she would like to see the private sector do more to help monitor potential threats to national security. She has not specified what help should be provided, but she may want smart phone vendors such as Apple and Google to unlock their phones when ordered by criminal warrants so law enforcement can decrypt their contents.

Interestingly, Clinton demonstrated a concern for Internet freedom by appointing renowned technologist Alec Ross as her Senior Advisor on Innovation at the State Department. Ross currently serves as her chief advisor on technology policy and is seen as a vocal critic of efforts to control and surveil the internet. If Clinton wins the presidency and retains Ross on her staff, he could certainly be an influential voice on domestic surveillance and data collection policy.

Presidential Impact

While it is unclear how either of these candidates will shape the government’s surveillance and data collection efforts, this will be an important policy matter. Donald Trump has indicated that he would err on the side of national security in most matters, but he will have to convince a Senate that could be Democrat controlled to expand existing powers. However, it would not be a stretch to think that an increase in law enforcement requests for customer’s data, could be forthcoming in a Trump administration.

Hillary Clinton may not immediately seek an increase in powers for the government, but it is not clear that she would seek to curtail them either. She will likely take a more reasoned approach and rely on guidance from the national commission set up to discuss digital privacy. She will emphasize accountability for unlawful activity and increased transparency which is something that many service providers have asked for in recent years. She also seems to favor a solution that would seek cooperation by the private sector to become more involved in assisting the government. Proactive service providers may want to consider ways of assisting law enforcement without provoking complaints from privacy minded subscribers.

Post-election, Subsentio will monitor for changes in administration policy on law enforcement assistance and privacy matters that could impact communication service providers.

[i] According to a June 30, 2016 article published in the Atlantic.