The intelligence community and law enforcement have become dysfunctional in the Age of the Internet. They have grown too large and are collecting too much information.
Attorney General-designate Jeff Sessions should end their mindless government invasions of privacy that weaken rather than strengthen national security and effective law enforcement. He should begin by disowning the protracted effort of the Obama administration to compel Microsoft in a drug investigation to disclose the electronic data of a foreigner stored in Ireland pursuant to a strained interpretation of the antiquated Stored Communications Act (SCA); and, by supporting enactment of the Email Privacy Act to protect all emails of whatever age from government snooping without search warrants based on probable cause.
Both the intelligence community and law enforcement have multiplied their numbers since 9/11. That means drones predominate in their workforces. They lack the creativity or imagination necessary to detect terrorists or other serious criminals. They are all inside the bell shaped curve. And the ethos of drones that sets workplace norms is an ethos that penalizes risk or genius.
All large organizations are necessarily earmarked by mediocrities. They become intellectually stagnant or fossilized because fixated on preserving the status quo and avoiding risk. That is why all large monopolies self-destruct, like Eastman Kodak or IBM. Even Google will eventually succumb.
Government organizations are the same. The National Security Agency (NSA) features tens of thousands of employees. They indiscriminately collect unfathomable volumes of electronic data that they are unable to process into a useful intelligence product. If all data is suspicious, then no data is suspicious. Thus, the NSA has assisted only a miniscule fraction of all successful initiatives to thwart international terrorism. It failed to identify one of 9/11 hijackers in San Diego, Khalid al-Mihdar, because it was buried under an avalanche of useless electronic interceptions.
Law enforcement shares the information overload dysfunction of the NSA. The collection and search of the email metadata of the entire United States population yields 10,000 false positives for one viable investigative lead. Running down these endless leads leaves little or no time for pursuing genuine suspects. Disaster ensues.
Russia informed the CIA and FBI that Tamerian Tsarnaev, one of the infamous Boston Marathon Bombers, and his family were “adherents to radical Islam” years before the terrorist incident. Federal officials conducted a cursory interview with Tsarnaev, but were too distracted by other useless data to prepare a warrant or to detain the youngster. The FBI has admitted that its intelligence strategy was a “huge” mistake on that score.
The 2016 attempted terrorist attack in Garland, Texas, by a self-identified ISIS adherent, Elton Simpson, tells a similar tale. Sen. Rand Paul, Kentucky Republican, elaborated: “We knew him. We had investigated him, we had put him in jail,” yet we neglected thereafter to closely monitor him because we were too busy searching the entire population’s electronic communications.
Omar Mateen , who killed 53 in a gay bar in Orlando, had previously been questioned twice after members of his mosque informed the FBI that he had become dangerously radicalized.
These cases are just the tip of the iceberg.
In the intelligence and law enforcement worlds, more is less. We need to contract and refine our intelligence collection and analysis. We should not indiscriminately intercept electronic communications for the sake of interception.
Upon confirmation, Mr. Sessions should support enactment of the Email Privacy Act introduced last January by Reps. Kevin Yoder, Kansas Republican, and Jared Polis, Colorado Democrat. it would require search warrants before government accesses any stored communications.
Mr. Sessions should also decline to seek review in the U.S. Supreme Court of the decision of the U.S. Court of Appeals in Microsoft v. United States holding that the SCA does not authorize search warrants to compel companies in the United States to retrieve and disclose electronic communications stored abroad, and put them to the Hobson’s choice of violating either United States or foreign law.
Congress should leave the Second Circuit’s interpretation of the SCA undisturbed until and unless the Department of Justice demonstrates by clear and convincing evidence that the absence of extraterritorial search warrants is causing non-trivial crimes to escape detection and prosecution. To date, that evidence has not been forthcoming.
In our liberty-centered constitutional universe, the right to be let alone is the rule and government encroachments the exception—and only when an exacting threshold of need has been proven.
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