Today, Restore The Fourth launches its voter guide for the 2020 Democratic primaries.
Mass state surveillance is less about who’s in the Oval Office and more about senior intelligence community officials and tech company executives. Their institutional imperatives plow ahead with only limited influence from the White House either way. It’s not clear that even a President who assumed office pledging to undermine the surveillance state would still be able to do so.
However, there are still meaningful differences between the different candidates for President. We don’t make endorsements or dis-endorsements, but it’s part of our mission to educate the public about those differences, and existing sources don’t draw together adequately the necessary information for privacy-oriented voters.
This cycle, we’re analyzing candidates’ track records and statements with respect to seven factors: (a) NSA surveillance; (b) FBI surveillance of domestic dissent; (c) DHS border surveillance; (d) police accountability; (e) commercial privacy and online publisher liability; (f) encryption; and (g) attitude to national security whistleblowers.
This necessarily casts a broader net than our congressional surveillance scorecard. Votes are the clearest indication of where a candidate stands, but some candidates have never held elected office. Where appropriate, we are also including and contextualizing candidate statements and non-legislative actions. This guide focuses on the Democratic candidates; ahead of the other parties’ debates, we will aim to do the same.
Unclassified: Tom Steyer
Over her years in Congress, Gabbard has paid close attention to surveillance issues. She has voted consistently and frequently in favor of surveillance reform, including co-sponsoring the Surveillance State Repeal Act, which would get rid of the PATRIOT Act and FISA Amendments Act entirely, and require warrants for collection of foreign surveillance data under Executive Order 12333. She has cosponsored legislation to give whistleblower protections to intelligence community employees and contractors, supported the USA RIGHTS Act, tried to get Section 702 surveillance defunded through the appropriations process, and opposed the USA FREEDOM Act in its highly compromised final form because it did not go far enough. She has highlighted several of these positions on her campaign website. She has spoken up in favor of pardoning Edward Snowden and dropping the charges against Julian Assange, and has spoken in support of Chelsea Manning. She strongly supported the protesters at Standing Rock, and has argued for substantial demilitarization of the police, but has opposed protests that have spilled into violence. She has not expressed a position on encryption. She has supported government regulation of social media companies to reduce political bias. She supports drone warfare in some circumstances, including the drone assassination of US citizen Anwar al-Awlaki as an ‘enemy combatant.’
Bernie Sanders has co-sponsored legislation on Capitol Hill to outlaw mass surveillance (the Intelligence Oversight and Surveillance Reform Act). He has been a consistent voice in favor of reining in surveillance powers, voting against reauthorization of the PATRIOT Act, against CISA, against efforts to weaken the USA FREEDOM Act, and against cloture on a bill extending Section 702 mass surveillance powers. He was personally investigated by the FBI for ties to the Socialist Workers’ Party in the 1980s, has supported and joined environmental protesters and people protesting against police brutality. He has called for a moratorium on police use of facial recognition, clemency for Edward Snowden, and abandoning the indictment against Julian Assange. On encryption, he has not plainly set out a policy; at the time of the Apple v. FBI fight, he expressed sympathy for both sides and called on the government to find a solution. He has suggested taxing targeted ads (to fund nonprofit journalism).
Though surveillance issues have not been core to Warren’s candidacies for either Senate or President, she has developed an unexpectedly strong voting record on NSA reform. She has voted against reauthorization of the PATRIOT Act, against CISA, against efforts to weaken the USA FREEDOM Act, and against cloture on a bill extending Section 702 mass surveillance powers. Her platform supports unspecified regulations on the use of facial recognition by law enforcement. On surveillance of domestic dissent, she held back from criticizing the FBI over Standing Rock until Donald Trump was elected. She did speak up against DHS fusion center surveillance of people protesting family separation at the border, and has been both highly critical of racism in policing and supportive of protesters against it. She has condemned the indictment of Julian Assange. On commercial privacy, she has supported barring tech companies from transferring or sharing users’ data with third parties, and supports a breakup of tech giants. She has also expressed concerns that end-to-end encrypted messaging systems could thwart prosecutions in the context of bank cases, which suggests that she may continue government efforts to undermine strong encryption standards.
O’Rourke was a member of the legendary Cult of the Dead Cow hacker collective during the late 1980s. As a member of the House of Representatives and member of the Fourth Amendment Caucus, he helped to introduce the USA RIGHTS Act, tried to get warrantless surveillance defunded via amendment, voted against the reauthorization of Section 702 mass surveillance powers, advocated against FBI backdoor searches and opposed the use of drone surveillance at the border. During his campaign for Senate, he spoke up in favor of protesters against police brutality, and against the murder of Botham Jean by Dallas police officer Amber Guyger. Less favorably, he has repeatedly supported making online platforms liable for knowingly allowing users to promote violence. He has no stated policy on encryption or facial recognition, and has not spoken up explicitly in favor of individual national security whistleblowers.
As a young man during the Rodney King riots, Booker says that he was stopped by police because he “fit the description” of a car thief. As Mayor of Newark, he introduced then-fashionable zero-tolerance and stop and frisk policing and was slow to act to fix police abuses. However, by the time he was running for Senator in 2012, he was also criticizing the NYPD for conducting unconstitutional surveillance on Newark’s Muslim community. As a Senator, Booker criticized Snowden for not “facing the consequences of breaking the law”, but has been a consistent vote for surveillance reform. He voted in favor of various amendments to improve the USA FREEDOM Act, against CISA, and against cloture on a bill extending Section 702 mass surveillance powers. He has highlighted and opposed the FBI’s use of the term “Black Identity Extremists” to surveil the black community.
Harris, during her short time as Senator, has built up a strong record on NSA and FBI surveillance reform, from a valuable position as the only non-white member of the Senate Intelligence Committee. She voted for a warrant requirement before querying Section 702 data, voted against reporting the FISA Amendments Reauthorization Act to the floor, and on the floor, voted against cloture. She joined Senator Warren in expressing concern to DHS about fusion center surveillance of journalists involved in reporting on family separation at the border. Less favorably, she led efforts to weaken tech firms’ protections against lawsuits relating to user-generated content. In her campaign platform, she has called for unspecified regulations, but not moratoria or bans, on facial recognition use by law enforcement. She has expressed support for protest movements and for religious minorities, but has not connected that to restraining surveillance powers nor, to our knowledge, filed legislation to protect them. Her earlier record as a prosecutor and attorney-general in California presents a contrast. As district attorney, she was generally enthusiastic about prosecuting low-level drug crimes, misdemeanors and truancy. In her campaign for state attorney-general, she refused to take sides between Apple and the FBI (her opponent supported Apple). As Attorney-General, she resisted acting to restrict surveillance by state police, and refused to investigate police abuse of minors in Oakland. She has spoken against Wikileaks being designated as a ‘non-state hostile intelligence service’, but has not spoken up for Assange or for national security whistleblowers like Snowden or Manning.
KPCC public radio: Senatorial candidate Harris on Apple’s court fight against breaking into an iPhone for police: “I don’t think it’s as simple as taking one side or the other.”
Castro has not made any public statement that we can find on the topics of NSA or FBI surveillance, whether as mayor, HUD Secretary or presidential candidate. However, he has gone into greater detail than any other candidate on his plans for policing reform. He has called for establishing national guidelines on use of facial recognition technology by police. His plan encourages the use of body-worn cameras, but also calls for an end to police militarization, abusive civil asset forfeitures and “stop and frisk,” and would require written consent for vehicular searches. As mayor of San Antonio, he struck a different note: He consistently prioritized police funding, and worked hard to solicit a DHS Cyber Command center to be headquartered in the city. Castro believes that social media companies have a responsibility to monitor their platforms for extremist speech. He has not spoken up on Assange or for national security whistleblowers like Snowden or Manning.
Buttigieg worked in his early career as a naval intelligence analyst, and when deployed to Afghanistan, worked for a counter-narcotics threat intelligence unit. Thanks in part to that background, he has opposed clemency for Chelsea Manning and Edward Snowden. He has stated that he opposes the Bush-era “unauthorized wiretapping of Americans, on US soil,” (emphasis ours) but that careful phrasing only excludes programs approved only by the President and not known to Congressional leaders. His position remains unclear on restrictions to the vast array of programs that are known to Congress. Buttigieg often contrasts China’s “techno-authoritarianism” and “digital surveillance state” to American traditions. He has proposed a new $1 billion for “Countering Violent Extremism” programming at home, which has come under fire from civil liberties advocates for acting on a discredited model of “radicalization” of Muslim youth. He advocates strengthening ties between the FBI’s Joint Terrorism Task Forces and state and local police departments, without publicly taking into account that they are often used to suppress peaceful dissent. As mayor of South Bend, he has been bullish about the potential of big data and machine learning to improve delivery of municipal services. He supports increased funding for tech companies to suppress “extremist” content online; he is well-informed on tech issues but has so far been reluctant to articulate a clear policy on commercial privacy.
A tech entrepreneur, Yang has never held elected office, so has no voting record for us to examine, and has not weighed in publicly on NSA or FBI surveillance issues. However, several of his policy platforms, when taken together, enable us to infer more about how he might handle such issues as President. Our first and most important observation is that Yang is an optimist about the power of technological solutions to improve society. For example, he has proposed a kind of limited, punishment-free, government-administered social credit system that rewards people for civic-minded actions. He supports giving every police officer a body-worn camera, “both because of police conduct and because suspects behave better when they know they’re being recorded,” emphasizing that it would enable police officers to “prove the truth.” Unusually among the candidates, he has a policy on “quantum encryption”, but it’s noteworthy that this policy doesn’t address the problematic demands of law enforcement for access to encrypted systems. He argues for citizens to have ownership rights over their personal data, but only considers that in the context of commercial exploitation of that data, not of government exploitation of the data. He has made general comments that whistleblowers are good, but has also said that Assange should stand trial for revealing US secrets. He was one of the few presidential candidates to not reply to the New York Times’ survey of candidates’ views on the constitutional limits of presidential power. In general, then, Yang seems to shy away from confronting the abusive power relations between government and citizen that underlie scandals relating to policing, the FBI and the NSA, and to prefer technical solutions to problems that interest him more.
At the time of the Snowden revelations, Klobuchar spoke out to defend the NSA and minimize the scope of their surveillance, and to say that Snowden should be prosecuted. She voted for the Cybersecurity Information Sharing Act, though she also voted for amendments that would have reduced the hazards to privacy of companies sharing threat information with the government. She voted for cloture on Senate discussion of the FISA Amendments Reauthorization Act, which extended Section 702 mass surveillance powers. She has supported some transparency reforms in the form of the USA FREEDOM Act. Unlike her Minnesota Senate colleague Al Franken, she avoided taking a position on police surveillance of Standing Rock, and as a county prosecutor, avoided prosecuting controversial police killings. She supports weakening encryption to provide law enforcement access. She has, however, made clear that she supports due process rights for `enemy combatants.’
Biden made his reputation as a legislator in the 1970s and 1980s as a tough-on-crime Democrat. As Chair of the Judiciary Committee in the early 1990s, he was instrumental in introducing bills that would outlaw encryption. His final effort in that line, CALEA, did pass into law, and mandated penetrability to law enforcement of telephone calls. In the late 1990s, he worked hard on anti-terrorism legislation, and after 9/11 he was at pains to emphasize that the bills he had introduced had largely inspired the PATRIOT Act. One benefit he articulated at the time was that the PATRIOT Act would provide access to people’s Internet and call metadata. However, after the Bush-era warrantless surveillance scandal of 2005-6, Biden took the opportunity to argue that in fact it was not appropriate to collect metadata on people’s calls, or to trust President Bush and Vice-President Cheney with expansive and unreviewed powers. Those comments came back to haunt him during the Obama-era warrantless surveillance scandals of 2013, where he was instrumental in ensuring that foreign countries under US influence did not offer asylum to Edward Snowden. During the 2020 presidential campaign, Biden criticized New Jersey Senator Cory Booker for allowing Newark PD to run a stop and frisk program when he was mayor. He has proposed a new domestic terrorism statute that would expand the definition of terrorism to include property crimes and threats.
The general tenor of Biden’s approach to government surveillance powers seems clear: Notwithstanding a short period of opposition in 2006, he has generally worked to expand them, and to silence people who blew the whistle on them.
Billionaire Tom Steyer’s platform on criminal justice reform vaguely advocates “better policing methods and training to reduce police brutality”; his civil rights platform statement does not mention surveillance. We can find no record of his having ever taken a public position on the other questions we consider, and are not able to assign him a meaningful grade.