Sessions on Surveillance: Confirmation Hearing Confirms Concerns

The Senate will soon vote on President-elect Trump’s nominee for U.S. Attorney General, Senator Jeff Sessions. Last week, CDT and 14 other organizations sent a letter to the Senate Judiciary Committee raising serious concerns about Sessions’ record on surveillance and privacy. Last week’s hearings confirmed some of our concerns and left us with more questions than answers about how Sessions would protect Americans’ privacy and civil liberties as Attorney General.

Bulk collection of Americans’ communications records

As a Senator, Sessions opposed the USA Freedom Act and was an ardent supporter of the NSA’s bulk collection program under Section 215 of the Foreign Intelligence Surveillance Act, despite consistent evidence that the program never discovered or disrupted a terrorist plot. The USA Freedom Act ended the NSA’s bulk collection of Americans’ phone records and drew broad support from the Intelligence Community. However, at his confirmation hearing, Sessions would not admit that the USA Freedom Act bars the NSA from engaging in bulk collection of Americans’ phone records. When Senator Leahy asked Sessions to “agree . . . that [the executive branch] cannot reinstate the bulk collection of Americans’ phone records without amending federal statutes[,]” Sessions responded, “I can’t swear that that’s absolutely, totally, always true, but it appears to be so.”  The most Leahy was able to extract was a commitment by Sessions to uphold the USA Freedom Act, but not a belief that the Act ends bulk collection, which was the overall purpose of the legislation.

Sessions’ answers during the hearing suggest a desire to leave the door open for bulk collection of Americans’ communications. As CDT has argued, this type of dragnet collection can reveal our most sensitive communications and activities and chills associational freedom.

Freedom of the press

Sessions would not commit to following the Department of Justice standards for subpoenaing journalists, confirming our concern that a Sessions DOJ may conduct unnecessary or overly broad investigations of the news media.

Senator Klobuchar asked Sessions to commit to following the DOJ’s revised guidelines limiting the circumstances in which the news media can be subpoenaed, requiring high-level approval for news media subpoenas, and strengthening the presumption of notice to journalists who are the subject of a subpoena. Sessions said he had “not studied” the revised guidelines and was “not sure” if he could commit to following them, adding that “the Department of Justice does have sensitivity to this issue.” Sessions was a strong opponent of the Free Flow of Information Act, a bill that would have protected journalists from being forced to testify about their confidential sources.

Sessions admitted that there is a “broadly recognized and proper deference to the news media,” but said that “you could have a situation in which [the] media is not really the unbiased media we see today, and they could be a mechanism through which unlawful intelligence is obtained.” Strong limits and checks on news media investigations are necessary to protect the free and independent press. As Senator Klobuchar noted, the press performs an important watchdog function on which our democracy depends.

The Senate Judiciary Committee is set to vote on Sessions’ nomination on January 24. Senator Leahy has submitted and publicly released follow-up questions, which cover the DOJ guidelines for news-media subpoenas, the use of cell-site simulators for warrantless location tracking, and encryption, among other issues. CDT urges the committee to carefully scrutinize Senator Sessions’ answers to follow-up questions as well as his existing record on privacy, as outlined in our coalition letter.