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The FBI, The FISA Court And Your iPhone

Former FBI Director James Comey.
James Comey photo courtesy the Federal Bureau of Investigation

When the top judge on the nation’s most secret court announces that it no longer trusts the FBI, it means the American public shouldn’t trust the bureau, either.

So let’s return to that long-running debate about encryption on your iPhone or other computing device, and law enforcement’s insistent demands that vendors create a mechanism that authorities can use to defeat it. I have written about this topic several times before in this space. Yet recent developments emphasize its ongoing importance.

To recap: A long-awaited report from the Justice Department’s inspector general, Michael Horowitz, detailed at least 17 instances in which the FBI withheld or mischaracterized information it provided to the Foreign Intelligence Surveillance Court when it sought permission to spy on Carter Page, a U.S. citizen who assisted Donald Trump’s presidential campaign. The FBI’s apologists, including fired director James Comey, claimed vindication in Horowitz’s conclusion that the initial request for surveillance warrants met the low legal standard for initiating such spying. Yet the rest of the inspector general’s report was a detailed portrait of self-delusion and deception that continued long after the election ended. Far from being a go-between who facilitated supposed collusion between the campaign and Russian intelligence operatives, Page was himself a source for another government agency (likely the CIA). The FBI knew this, but withheld it from the court. Page was not charged with any offense, and a two-year investigation by special counsel Robert Mueller in the wake of Comey’s firing failed to find evidence of any such collusion.

The headline and principal argument in Comey’s follow-up op-ed in The Washington Post asserted, “The FBI fulfilled its mission.”

Rosemary Collyer, the presiding judge of the surveillance court, had a very different take on the matter. Established in the aftermath of domestic spying scandals by the Foreign Intelligence Surveillance Act of 1978, the Foreign Intelligence Surveillance Court almost never operates in the public eye. But Collyer publicly released a sharply worded order that told the FBI, in no uncertain terms, to clean up its act. She noted that because the court operates secretly, with its targets unable to respond to allegations against them, the FBI has a “heightened duty of candor” to share exculpatory as well as incriminating information with the judges who decide whether to authorize surveillance against U.S. citizens and residents.

“The FBI’s handling of the Carter Page applications ... was antithetical to the heightened duty of candor described above,” Collyer wrote. “The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable. The FISC expects the government to provide complete and accurate information in every filing with the Court. Without it, the FISC cannot properly ensure that the government conducts electronic surveillance for foreign intelligence purposes only when there is a sufficient factual basis.”

The court gave the government until Jan. 10 to submit a sworn statement describing changes it has made or that it plans to make to correct the problems Horowitz identified in the Page case. But the simple fact is that these problems cannot be permanently corrected. The system depends on the good faith, good judgment and integrity of the judges serving on the surveillance court and on the agency personnel who come before them. Housecleaning and procedural changes may make things better, but sooner or later people will fail to live up to such high expectations. That’s what happens when systems rely solely on fallible human beings.

Machines, on the other hand, do whatever they are designed and programmed to do. Law enforcers hate the idea of having information they want, and sometimes need, stored or transmitted by mechanisms that they can’t penetrate. Such defenses exact a price in security, they point out. This is undeniable. Law enforcement personnel often exaggerate such costs, however, as Comey did when he demanded that Apple help hack into the encrypted personal cell phone left behind by a California terrorist. (The FBI later backed down after Apple challenged the demand in court, and the bureau ultimately hired an outside firm to hack the phone. They found nothing useful.) Law enforcement also often omits the costs in personal security and privacy when they abuse their surveillance powers.

Carter Page recently wrote about those costs in an op-ed in The Wall Street Journal. What happened to him was unnecessary and unfortunate. It was also unsurprising to anyone who recognized Comey as the self-aggrandizing, manipulative and deceptive bureaucratic operative that he is. That the FBI under his leadership behaved in exactly this manner is not shocking; it was predictable. It may take a while, but such abuses are bound to recur sooner or later.

In this country, citizens are sovereign and the government exists to accommodate them, not the other way around. We have obligations to obey lawful process, but we have no obligation to render ourselves vulnerable to potential abuse. The next time law enforcement demands that we entrust it with access to private data, we should recall what the foreign intelligence court said about the FBI. The judges no longer put blind faith in the law enforcers. Neither should we.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s most recent book, The High Achiever’s Guide To Wealth. His contributions include Chapter 1, “Anyone Can Achieve Wealth,” and Chapter 19, “Assisting Aging Parents.” Larry was also among the authors of the firm’s previous book, Looking Ahead: Life, Family, Wealth and Business After 55.

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