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The Sessions Nomination and the “Emergency Exception”

Donald Trump will nominate Jefferson Beauregard Sessions III to be Attorney General.

Most of the uproar over the appointment has, justifiably, focused on the fact that Sessions is such a racist he was denied confirmation to be a District Court Judge in the 1980s. We will also learn, going forward, about how deeply embedded in Alabama’s unique kind of corruption Sessions is.

But something more recent is as alarming, albeit for different reasons.

In June, Sessions proposed an amendment to ECPA reform that would mandate providers turn over communications content if a government official declared that it was an emergency.

(1) IN GENERAL.—A provider of electronic communication service or remote computing service shall disclose to a governmental entity a wire or electronic communication (including the contents of the communication) and a record or other information pertaining to a subscriber or customer if a representative of the governmental entity reasonably certifies under penalty of perjury that an emergency involving the danger of death or serious physical injury requires disclosure without delay.

As Al Gidari explained in a post on this provision, providers already can, at their discretion, turn over such communications in case of an emergency.

For the last 15 years, providers have routinely assisted law enforcement in emergency cases by voluntarily disclosing stored content and transactional information as permitted by section 2702 (b)(8) and (c)(4) of Title 18. Providers recently began including data about emergency disclosures in their transparency reports and the data is illuminating. For example, for the period January to June 2015, Google reports that it received 236 requests affecting 351 user accounts and that it produced data in 69% of the cases. For July to December 2015, Microsoft reports that it received 146 requests affecting 226 users and that it produced content in 8% of the cases, transactional information in 54% of the cases and that it rejected about 20% of the requests. For the same period, Facebook reports that it received 855 requests affecting 1223 users and that it produced some data in response in 74% of the cases. Traditional residential and wireless phone companies receive orders of magnitude more emergency requests. AT&T, for example, reports receiving 56,359 requests affecting 62,829 users. Verizon reports getting approximately 50,000 requests from law enforcement each year.

This amendment would have eliminated that discretionary review, which — as Gidari went on to explain — often serves to weed out requests for which there isn’t really an emergency or in which authorities are just fishing to further an investigation.

Remember, in an emergency, there is no court oversight or legal process in advance of the disclosure. For over 15 years, Congress correctly has relied on providers to make a good faith determination that there is an emergency that requires disclosure before legal process can be obtained. Providers have procedures and trained personnel to winnow out the non-emergency cases and to deal with some law enforcement agencies for whom the term “emergency” is an elastic concept and its definition expansive.

Part of the problem, and the temptation, is that there is no nunc pro tunc court order or oversight for emergency requests or disclosures. Law enforcement does not have to show a court after the fact that the disclosure was warranted at the time; indeed, no one may ever know about the request or disclosure at all if it doesn’t result in a criminal proceeding where the evidence is introduced at trial. In wiretaps and pen register emergencies, the law requires providers to cut off continued disclosure if law enforcement hasn’t applied for an order within 48 hours.  But if disclosure were mandatory for stored content, all of a user’s content would be out the door and no court would ever be the wiser. At least today, under the voluntary disclosure rules, providers stand in the way of excessive or non-emergency disclosures.

A very common experience among providers when the factual basis of an emergency request is questioned is that the requesting agency simply withdraws the request, never to be heard from again. This suggests that to some, emergency requests are viewed as shortcuts or pretexts for expediting an investigation. In other cases when questioned, agents withdraw the emergency request and return with proper legal process in hand shortly thereafter, which suggests it was no emergency at all but rather an inconvenience to procure process. In still other cases, some agents refuse to reveal the circumstances giving rise to the putative emergency.

In other words, if this amendment had passed, it would have created a black hole of surveillance, in which authorities could obtain content simply by declaring an emergency (remember, from 2002 until 2006, there was a highly abusive FBI phone metadata program that worked by invoking an emergency).

I raise this not to minimize the biggest reason Sessions is unsuitable to be AG: his racism and his regressive ideas on immigration.

Rather, I raise it to point out that in addition to selectively pursuing people of color (and delegitmizing those who defend their due process), Sessions would undoubtedly seek tools that would make it easier to do so without any oversight.

All Trump’s named nominees thus far save Reince Preibus couch their racism in terms of claims of “emergency.” Those claims, tied to Sessions’ views on legal process, would make for an unchecked executive.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

12 replies
  1. Dissent Now says:

    Man, gotta love how it was worded to be “a.” A government entity. A is in any government entity. So even the local water department of a city of 456 persons could make such demand.

  2. John Casper says:

    From David Dayen’s weekly newsletter.

    “Donald Trump is not making any effort to sway people away from the notion that his election represents a new era for white supremacy. Jeff Sessions, our new Attorney General nominee, is a terrifying prospect for black and brown people, not just because of things he said 30 years ago but because of the policies he supports, from stopping criminal justice reform in its tracks to punitive steps against voting rights, civil rights, and immigration. We’ll be lucky to get out of Sessions tenure with a civil rights division at DoJ at all.

    Lest you think there’s something compensatory here, that Sessions is the type of right-wing populist who would also be tough on corporate offenders, allow me to provide a couple data points. In 2008, as the banks were melting down, Sessions tucked a provision into a patent reform bill that would have exempted the entire banking industry from an active lawsuit. A company that invented the digital scanning of checks into electronic images wanted to be paid by the industry for their work, and Sessions’ amendment blocked that, instead having the government pay for the taking of intellectual property, literally having taxpayers pay for something banks use. At the time, he and his wife held shares worth $350,000 in banks that would have benefited from the change.In the 1990s, Sessions chaired the Antitrust subcommittee in the Senate, and he pressured the late Attorney General Janet Reno to back off Microsoft, in the middle of the government’s case against them. Lately he’s been more interested in demonizing Microsoftfor using H1-B visas (aka immigrant labor), but the initial instinct was to defend corporate monopolies.Oh, and get ready for federal intervention into states that have legalized marijuana, because Lady Gaga is addicted to pot so something must be wrong.So there’s no mitigating factor here, and it wouldn’t be much solace if there were.”

    If you don’ already subscribe–no charge–to his newsletter, I strongly recommend it. Here’s a link. http://tinyletter.com/DavidDayen

  3. John Casper says:

    Wonder if Sen. Sessions has made any statements about regulating pornography and friends of the President-elect such as Howard Stern.

    From 2012, “Strippers look to GOP to ‘make it rain.'”

    http://www.cnn.com/2012/08/23/politics/tampa-gop-strip-clubs/

    From 2016 “Cleveland Strip Clubs Are Stoked for the RNC Because ‘Republicans Love Strippers.'”

    http://www.complex.com/life/2016/07/cleveland-strip-clubs-stoked-rnc-because-republicans-love-strippers

    Questions about how Sen. Sessions would prosecute pornographers would drive the ratings of confirmation hearings.

  4. GKJames says:

    Is it possible that Sessions, assuming he’s confirmed, will meet opposition from career attorneys within DOJ? They can’t all have caved on their principles since 9/11.

  5. martin says:

    @ John Casper. First off, the “reply” button doesn’t work. Hence this reply.
    Thanks for the link. I lived through that insidious time. It taught me more than any book could about racism, notwithstanding the scum sucking racist South. Too bad Lincoln didn’t wipe it off the map. As for Sessions, people in this country have come too far and fought too hard to let this maggot take us back to that time when racism was legal. He’s in for a rude awakening should he think he alone will turn the clock back. There’ll be Civil War v2 if he tries. Moreover, there’s already hundreds of thousands of people signing up, ready to protest at Trumps inauguration, if not millions once that day arrives.. Not that it will change the election, but it will manifestly put Trump and his admin on notice what they face going forward. Unfortunately, the stakes are so great, I’m sure that Law enforcement will use Extreme Prejudice, whereby blood will flow like water. This is when it will begin.

  6. earlofhuntingdon says:

    Jeff Sessions? I guess Strom Thurmond and Jesse Helms were no longer available.  So much for bipartisan, post-racial America.  Time to buy stock in water cannons.  If we can survive the next four years, the real drama will be how we pick up the pieces.

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