President Donald Trump’s pick to lead the FBI, Christopher Wray, will begin his confirmation process next week, giving lawmakers an opportunity to press him on his previous statements about expansive surveillance authorities and aggressive copyright prosecution.
Defense of the USA PATRIOT Act
During his tenure as Assistant Attorney General in the Bush Administration, Wray vocally defended a range of controversial provisions in the USA PATRIOT Act—including Section 215, which would later provide the basis for the bulk collection of Americans’ telephone metadata.
When Wray went before the Senate Judiciary Committee in 2003 to defend the PATRIOT Act, a Department of Justice document indicated that Section 215’s business records provision had never been used. Wray insisted that was a sign of restraint: “We try to use these provisions sparingly, only in those instances where we feel that this is the only tool that we can use.” In fact, as the Privacy and Civil Liberties Oversight Board (PCLOB) made clear in its report on the bulk metadata program, Section 215 was sitting fallow because the Bush Administration was already collecting much of that data—without statutory authorization.
Granted, Wray didn’t have all of the information about that secretive wiretapping program until 2004, which we’ll get into below. Still, his insistence that Section 215 was just an effort to bring counterterrorism powers in line with ordinary criminal authorities reflected a concerning lack of skepticism about the risk of abuse. The same holds for his defense of a range of other PATRIOT Act provisions: “sneak and peek” warrants that allow law enforcement to search first and serve notice later; a reduced bar for obtaining a FISA warrant that one district court later found inconsistent with the Fourth Amendment; and a vaguely worded expansion of the kind of Internet data, some of it potentially very sensitive, that can be collected with a pen/trap order.
Experience teaches that broad grants of surveillance authority are invariably abused, as the PATRIOT Act has been. During Wray’s confirmation process, lawmakers should press him on his insistence that the Act “helped preserve and protect liberty and freedom, not erode them.”
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