The futile attempts to rebuild America’s pre-9/11 wall of privacy

Lawmakers are trying to hold back snooping by intellengence agencies outed by Edward Snowden

WASHINGTON— Ever since Edward Snowden revealed the extent to which the U.S. government searches and reads the email of millions of people — and the complicity of telecom and tech companies in the effort — demands that the massive surveillance program be reined in have been intense across party lines.

Yet with the imminent expiration of the legal authority that allows law enforcement to monitor the email of foreigners and many Americans, lawmakers are no closer to overhauling the surveillance process than they were when Snowden, the now-fugitive former National Security Agency (NSA) contractor, sought asylum in Russia four years ago.

Congress is paralyzed on the contentious national security challenge. Lawmakers adjourned for their Christmas break having failed to reach agreement on anything more dramatic than extending the legal authority for online surveillance to mid-January, when both sides will renew their debate.

Lawmakers have burned endless hours trying to find a fix aimed at easing public concerns that the program has grown ever more Orwellian. The tech industry worries that U.S. government snooping will motivate clients to move their business abroad. Yet they can’t agree on a solution. Civil libertarians on the right and left who demand searches be limited and accompanied by warrants clash with national security hawks who say any such modifications would endanger Americans.

The pressure from law enforcement to keep the program unchanged has been strong.

“We need every tool and every authority we’ve got to keep people safe,” FBI Director Christopher Wray said at a House Judiciary Committee hearing in December. “I would implore the committee and the Congress not to begin rebuilding the wall that existed prior to 9/11.”

The Trump administration has signalled that even if Congress fails to act, an obscure legal ruling could allow it to keep the program in place for at least several months. Those negotiating the issue on Capitol Hill say the most likely action by Congress will be to grant a two-year ex- tension of the status quo. That extension could be tacked onto the budget bill Congress must pass once again in January to keep government agencies open. Lawmakers would have little choice but to approve it, backers of the extension hope.

A broad coalition of civil rights, internet freedom and free-market advocacy groups is warning lawmakers that punting will have consequences.

“This is an issue that concerns people across party lines, and they want Congress to have this debate,” said Neema Singh Guliani, legislative counsel for the ACLU. “They don’t want something snuck through at the last minute without vetting.”

Even as action to change the program is stalling in Congress, hand-wringing over it isn’t.

Sen. Dianne Feinstein, whose steadfast advocacy for the surveillance program had long put her at odds with Democratic activists back home, is among those shifting course. As a high-ranking member of the Intelligence Committee, the issue is prominent on Feinstein’s plate as she fac- es a primary battle.

She is now calling for warrants to be required before law enforcement can access emails found through one of the most controversial and legally precarious types of searches, in which the NSA scrapes databases for messages of Americans who may have had incidental contact with — or merely mentioned — foreigners on watch lists.

Some experts read the legal authority to search and read emails of Americans, known as Section 702, to go even further. For example, if an American participates in or promotes an event abroad as benign as a climate change protest or an academic conference on international affairs, they could get swept into the surveillance, according to the interpretations.

The government doesn’t always limit its probes to issues of national security. The FBI might use “backdoor searches” in pursuit of a tax-evasion case, for example. The information may not be usable as evidence in a criminal complaint, but it can be used to help the FBI find other information that is.