Worries and uncertainty cloud outlook for digital privacy under President Trump

Some legal experts are worried Trump could abuse the NSA's surveillance powers, but we just don't know

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Donald Trump speaking to supporters at an immigration policy speech at the Phoenix Convention Center in Phoenix, Arizona, on August 31, 2016. Credit: Gage Skidmore

When President-elect Donald Trump officially takes office, he’ll inherit a powerful U.S. surveillance apparatus, including the National Security Agency, that’s already been accused of trampling over privacy rights.

This has some legal experts worried, but like almost every other aspect of a Trump presidency, there are more questions than clarity over what exactly he plans to do.

Over the course of his presidential campaign, Trump has only offered snapshots on his views about various U.S. privacy matters, but they suggest a pro-government surveillance stance.

For instance, Trump showed support for the NSA’s bulk telephone data collection, which ended last year. “I err on the side of security,” he said at the time. And on Apple's refusal to provide the FBI access to an iPhone used by the San Bernardino shooter: the public should boycott the company until it complies, he said.

This doesn't bode well for privacy advocates looking for government reform on surveillance. Republicans typically show little sympathy on the matter, said Timothy Edgar, a director of law at Brown University who previously served in the Obama administration.

“I would say pretty much any attempts to reform will come to a screeching halt, and maybe it will go backwards,” he said.

Abuse of surveillance programs also worry some, who think a crafty White House legal team can find ways to bend the checks and balances already in place.

“To think that we have made the NSA Trump-proof or tyrant-proof, we are deluding ourselves,” said Edgar. "Some people have argued that we need to have stronger controls over the NSA because you are never going to be sure who is going to be elected."

And privacy fears also stem from controversial stances he took during his campaign, such as speaking favorably on “profiling” Muslims and advocating for a change to libel laws so he can sue news organizations.

Susan Freiwald, a law professor at the University of San Francisco, said it wouldn’t be far-fetched to imagine a Trump presidency using the FBI to collect information on opponents. She’s particularly worried about the private communications of both media critics and political figures.

“While the rules of law should not permit that, it is not clear that oversight mechanisms will be sufficient to stop it,” she said in an email.

But how much those comments will translate into actual policy is unclear.

“Nobody knows what he’ll do,” said Jay Edelson, an attorney and CEO of law firm Edelson PC. “I don’t know if his past statements should be taken as gospel or if it’s more about emotions.”

When it comes to privacy, President Obama's administration hardly has stellar record, having come under criticism for the NSA’s mass surveillance activities that were disclosed by Edward Snowden.

“The Democratic administration has been pretty bad. So has the previous Republican administration,” Edelson said. “I don’t think it will be any worse under a Trump administration.”

However, Edelson is concerned that Trump's pro-business stances will strip away cybersecurity and data privacy regulations meant to protect consumers. “Nobody in my industry views Trump as pro-regulator. We think he has more of a pro-business agenda,” he said.

It’s also possible that political issues involving privacy and cybersecurity will take a backseat during a Trump presidency. His campaign never made those matters a priority, said John Dickson, a principal at security provider Denim Group and a former U.S. Air Force officer.

“I think he’ll have a real learning curve,” Dickson said, adding that Trump may also have to repair relationships in the U.S. intelligence community. During his campaign, he questioned whether Russia was truly behind several high-profile hacks on Democratic targets, which U.S. intelligence agencies had publicly blamed on the Kremlin.

“He’s not the biggest expert in this policy area,” Dickson said. However, once Trump begins appointing members of his cabinet, the public will gain a better idea of the incoming president’s approach, he said.

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