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Drone Concerns Overshadow Confirmation of New FBI Director

Comey gets a "no" vote from Paul and two Dems vote "present," unsatisfied with shifty definitions of a "reasonable expectation of privacy."

Bridget Johnson


July 29, 2013 - 6:30 pm
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WASHINGTON — The Senate ushered in a new chief for the Federal Bureau of Investigation today, with Sen. Rand Paul (R-Ky.) casting the lone dissenting vote against James B. Comey and two privacy-rights Democrats refusing to vote yea or nay.

Comey, who was deputy attorney general for two years in the George W. Bush administration, replaces FBI Director Robert Mueller after his 12 years at the helm of the Bureau.

The 93-1 confirmation vote marks the first “no” vote for an FBI director nominee since the Senate was first charged with approving the chief in 1968.

It all came down to drones as Paul placed a hold on Comey’s nomination, which cleared the Senate Judiciary Committee on July 18. Privacy advocate Sens. Ron Wyden (D-Ore.) and Jeff Merkley (D-Ore.) cast “present” votes on the floor today.

President Obama issued a statement applauding “the overwhelming, bipartisan majority of senators who today confirmed Jim Comey to be the next director of the FBI.”

“Jim is a natural leader of unquestioned integrity. In the face of ever-changing threats, he has repeatedly demonstrated his commitment to defending America’s security and ideals alike. With Jim at the Bureau’s helm, I know that the FBI will be in good hands long after I’ve left office,” Obama said.

Paul, though, protested that the American people won’t be in good hands as long as there are outstanding questions on privacy protections from domestic drone use — the issue that sparked his famous 13-hour filibuster.

Paul sent letters to Mueller on June 20 and July 9 over concerns about confirmation from the bureau in testimony before Congress that the FBI operates drones within the U.S.

“Given that drone surveillance over American skies represents a potentially vast expansion of government surveillance powers without the constitutionally-guaranteed protection of a warrant, it is vital that the use of these drones by the FBI be fully examined in an open and transparent manner,” Paul wrote in the July 9 letter. “The American people have a right to know the limits that the federal government operates under when using these drones, and whether further action by Congress is needed to protect the rights of innocent Americans.”

The senator promised that without “adequate answers” to his “easily answerable,” “legitimate questions on important government functions,” he’d object to the consideration of Comey’s nomination.

Paul received some answers on July 19, both classified and not, and wasn’t satisfied.

“The FBI uses UAVs in very limited circumstances to conduct surveillance when there is a specific, operational need,” read the unclassified letter from Assistant Director Stephen D. Kelly, offering examples of finding missing children and drug interdictions.

“In addition, every request to use UAVs for surveillance is reviewed by FBI legal counsel to ensure there are not potential Fourth Amendment or privacy concerns implicated by the proposed use of UAVs,” Kelly continued. “Every request to use UAVs for surveillance must be approved by senior FBI management at FBI Headquarters and in the relevant FBI Field Office. Without a warrant, the FBI will not use UAVs to acquire information in which individuals have a reasonable expectation of privacy under the Fourth Amendment.”

Paul seized on that “reasonable expectation” clause in his response to Mueller.

“Of note, the Bureau’s response also mentions that ‘there has been no need’ to seek a warrant or court order to use a drone in past examples,” he wrote the director on July 25. “Instead of seeking court orders, the Bureau defers to an internal approval process it uses to protect privacy. Given that, first, the FBI will only seek a warrant if a reasonable expectation of privacy is assumed and, second, that the FBI has not felt it necessary to seek a warrant during past drone operations, it is important that you clarify your interpretation of when an individual is assumed to have a reasonable expectation of privacy.”

“I am concerned that an overbroad interpretation of this protection would enable more substantial information collection on an individual in a circumstance they might not have believed was subject to surveillance.”

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So, as I predicted, Paul had it pegged when he picked up that the "reasonable expectation of privacy" clause was suspicious. Sure enough, they came back with observation of public activities. Because of course they would.

But every place you walk when you're outside the house, and every place you drive your car, you are in public. That doesn't mean your activities are not, in aggregate, private. If your next door neighbor decided to watch these activities and follow you everywhere you go, then you'd have very reasonable grounds to charge them with stalking. The government, apparently, does not impose those restrictions on itself. Oh, and thanks to drones, they don't need to deploy people or cars to follow you. They can hang out at the maximum extent of camera range so there is no chance of you noticing you're being followed.

So, basically, they're openly willing to gather information on a large subset of the daily activities of anyone they like in a way that can't be tracked. That way, even if you completely remove your cell phone battery and make it impossible for PRISM to gather data on your location via cell-phone tower access in the metadata, they can still figure out what you were doing. Oh, yay! I'm sure this will never, ever be abused for political reasons... you know, unlike the way that this administration has been abusing all of its powers in every single other area.

At this rate, anyone running a conservative group in the elections next year will be lucky not to have where their kids go to school disseminated to opposing political groups. Assuming said individuals aren't run up on a "mysterious" audit.
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