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Comey firing may open the door for expansion of government surveillance powers

FBI Director James Comey
Zach Gibson | AFP | Getty Images
FBI Director James Comey

U.S. President Donald Trump's sudden dismissal of FBI Director James Comey on Tuesday has left even the longtime law enforcement official's critics — from tech companies to civil-liberties advocates — wondering if the new administration may seek to expand the government's surveillance powers.

From the campaign trail to the Oval Office, Trump has criticized tech giants like Apple that have tried to rebuff federal requests for greater access to their customers' data and devices. Meanwhile, the president has appointed a number of key individuals to national security posts who want to expand government's snooping programs.

Ultimately, Trump fired Comey on Tuesday because of the way he handled an investigation into Democratic presidential contender Hillary Clinton's emails. And his departure is unlikely to draw many tears in the tech industry or beyond.

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His absence, however, still raises new questions about how Trump's FBI might soon approach a host of critical digital privacy debates, including encryption.

"Comey has definitely been bad on human-rights issues," said Amie Stepanovich, the U.S. policy manager for Access Now, a public-interest group that advocates for surveillance reform in the nation's capital. "He's been in favor of expanding surveillance powers. He's been in opposition to critical digital-security tools, like encryption. We've definitely had several run-ins with him."

Stepanovich told Recode on Tuesday that Trump has an "opportunity to appoint an FBI director that would be considerably more in favor" of strong privacy rights, for example. But, she stressed, Trump has "consistently appointed officials that support gross expansions of government authority at the expense of individual rights. So I think we can look on the potential new FBI director and be worried about who Trump is going to recommend for that position."

After taking the top FBI post in 2013, Comey found himself in a number of high-profile clashes with the tech sector and some of its allies. He initially defended some government programs to collect and analyze telephone and email records, for example, even after the disclosures of mass surveillance by Edward Snowden in 2013. And he repeatedly sought to expand the bureau's power to root out suspects and criminals who communicated digitally under cover of encryption. Notably, Comey brought a case against Apple in 2016 after it refused to unlock a password-protected device tied to the San Bernardino terrorist attack.

To that end, the likes of Apple, Facebook and Google often challenged Comey and his allies in the Obama administration directly. They lobbied intensely on Capitol Hill — and filed no shortage of court challenges — to battle back the FBI's attempts to expand its ability to access some data and devices. And in the aftermath of Snowden's leaks, they launched a coalition, called Reform Government Surveillance, to press for reform of the NSA. For these companies, their push to rein in federal law enforcement wasn't just meant to assuage privacy-conscious customers: It was about satisfying foreign governments and business partners, which had grown skeptical of Silicon Valley's ties to the U.S. government.

Now, however, the tech industry must confront a new challenge: a White House that has still-evolving views on surveillance issues, as well as new faces running key federal agencies -- including, soon, the FBI.

Dating back to the bruising 2016 presidential campaign, at least, Trump has struck a hard line on issues like encryption. During Apple's fight that summer with the FBI, then-candidate Trump blasted the iPhone giant's chief executive, Tim Cook, and even called for a boycott of the company.

Since winning on Election Day, though, Trump has appointed officials to key national security posts that share a belief that government should expand its ability to pursue potential threats.

Trump's attorney general, for example, similarly has criticized Apple for its strong defense of encryption. While Jeff Sessions represented Alabama in the U.S. Senate in 2015, he also voted against a law that reined in some of the National Security Agency's surveillance powers.

A year later, Sessions sought in Congress to expand FBI's ability to collect information like web browsing histories during emergency cases without first requiring a warrant. That ultimately failed. But the larger privacy debate — whether law enforcement should have to obtain warrant to access Americans' oldest emails for their investigations — remains an unsolved issue on Capitol Hill.

There's also Mike Pompeo, the director of the Central Intelligence Agency under Trump, who similarly sits oppose of tech and civil-liberties crowds. An Army officer who later served in the House of Representatives, Pompeo regularly — and vocally — opposed efforts to curtail U.S. surveillance authorities. And Trump's director of national intelligence, former Sen. Dan Coats, similarly has voted against surveillance reform.

For tech giants and civil-liberties advocates, Trump's still-forming team is all the more important in 2017, as one of the NSA's most critical programs is set to expire at the end of the year.

The provision of surveillance law known as Section 702 allows intelligence officials to collect phone and internet data in bulk from overseas, and some companies and groups want to narrow those powers to ensure Americans' communications aren't swept up. Congress is still debating the future of that law, but the Trump administration surely will have a say — including, potentially, its new FBI director.

"Whether the next person adopts those views or not, or whether they take a position that is much more responsive to those [privacy] concerns, I just don't know," said Neema Singh Guliani, a legislative counsel at the American Civil Liberties Union.

In an interview, she also stressed Comey's record has been concerning — but that the Trump administration's approach to privacy and security remains unclear.

"I think that if we look at the appointees to date, many of them have had very concerning positions on surveillance," she said.

By Tony Romm, Re/code.net.

CNBC's parent NBCUniversal is an investor in Recode's parent Vox, and the companies have a content-sharing arrangement.