[pullquote]“Surveillance is dangerous because it has the effect of limiting what we feel comfortable sharing with one another, and that makes us all worse off.”
– Olivier Sylvain[/pullquote]
One month after President Donald Trump tweeted to his millions of Twitter followers that former FBI Director James Comey “better hope that there are no ‘tapes’ of our conversations…” neither Trump nor the White House has definitively answered whether such recordings exist. Still, the potential of increased surveillance in the Trump era—whether through recorded conversations, collected online data, or other technological means—has spurred activists, journalists, and even White House officials to take extra precautions to protect their communications.
The fact that Trump, as president, would raise the specter of recorded conversations in relation to Comey, whom he fired on May 9, suggests “surveillance is being used as a tool to chill behavior,” said Fordham Law Professor Olivier Sylvain, an expert on information and communications law and policy. In Comey’s case, Trump’s tweet sought to caution anyone who would consider testifying before Congress, as Comey later did on June 8, about ties between the Trump administration and Russia, Sylvain explained.
“This concept of chilling speech is a very old concept,” the professor said. “Surveillance is dangerous because it has the effect of limiting what we feel comfortable sharing with one another, and that makes us all worse off.”
While government and law enforcement agencies have a history of utilizing domestic surveillance to undermine black liberation efforts, social justice initiatives, and political opposition, the tools at their disposal today, ranging from data collection and satellite surveillance to bulk collection of cell phone use, make the surveillance state of 50 or 60 years look “pretty quaint,” Sylvain observed.
The Department of Justice enacted a policy in 2015 that required federal law enforcement agencies to obtain a warrant to use secretive and intrusive cell phone-tracking technology. But now with Trump in the Oval Office, the Justice Department seems to be heading in the opposite direction on user privacy issues in the interest of promoting “a robust and aggressive law enforcement,” Sylvain said.
“We have yet to see how far this will go, but those of us who care about the privacy of historically disadvantaged groups—people of color, poor people—know enough now to be worried,” the professor said. This means, for instance, that protecting the privacy of cell phone users in Ferguson and Baltimore, locales where systemic police department misconduct toward people of color has been documented, will not be a DOJ concern.
In October 2016, Color of Change and the Center for Constitutional Rights filed suit against the FBI and Department of Homeland Security seeking to obtain records on the surveillance of Black Lives Matters protestors and its leaders in recent years. In addition, civil liberties activists criticized police use of Geofeedia, a company that allowed law enforcement to search social media content in specific areas, in order to track protestors. Facebook, Instagram, and Twitter all terminated Geofeedia’s access to their data in 2016.
Since Trump’s election last fall, Black Lives Matter activists have started participating in digital security classes teaching encryption and safe browsing techniques, the Washington Post reported. Many journalists have also adopted encryption as a means to protect sources—although a recent charge brought against National Security Agency contractor Reality Winner for allegedly transmitting national defense information to The Intercept shows how sharing problematic government intelligence is still subject to surveillance even if precautions are taken, Sylvain said.
Surveillance concerns also extend to Trump’s own officials.
“Staffers, meanwhile, are so fearful of being accused of talking to the media that some have resorted to a secret chat app—Confide—that erases messages as soon as they’re read,” the Washington Post reported on February 13.
The current surveillance climate also raises questions about what obligations telecommunications giants, cell phone manufacturers, and social media companies have to share information with government and law enforcement agencies.
The Stored Communications Act and Electronics Communication Privacy Act, as currently written, require companies subjected to government orders to produce third party data (e.g., duration of a phone call, originating phone number, destination, etc.). Short of legislative intervention, it is possible that major companies and emergent entrepreneurs will come up with conventions that help resist surveillance, in line with both their financial interests and consumer wishes, Sylvain noted.
Shared political support for limiting the scope of government surveillance, including push back on the Patriot Act, also provides reason for hope.
“This is not a partisan issue,” Sylvain said of surveillance. “This takes up a core principle in the American constitutional scheme—the belief that we should be able to speak to each other freely and act as a self-governing people.”