Encryption and surveillance took center-stage at the fourth Republican presidential debate on Tuesday night.
The high-water mark for surveillance-policy discussion in a presidential election came when Sens. Marco Rubio (R-Fla.) and Ted Cruz (R-Texas) clashed over the USA Freedom Act, a law that ended a National Security Agency program that collected Americans’ phone records in bulk. The law instructs the NSA to request those records—including details of who called whom, when, and for how long they spoke—from phone companies. The agency ran its old program (illegally, according to a federal appeals court) under a provision of the USA Patriot Act, the post-9/11 counterterrorism law.
Cruz voted for the bill, which passed in June and took effect in November. He defended his decision by pointing out that the law actually expanded the pool of records that the NSA could access. The agency had been having trouble collecting cell-phone records, but by going to the phone companies, it could solve that problem.
The USA Freedom Act, Cruz said, “strengthened the tools of national security and law enforcement to go after terrorists.”
Rubio, who voted against the bill, struggled to defend his position. He argued that Cruz was lying when he said that the NSA had access to more records under the new law, prompting Cruz to reply with numbers.
“What [Rubio] knows is that the old program covered 20 percent to 30 percent of phone numbers to search for terrorists,” Cruz said. “The new program covers nearly 100 percent. That gives us greater ability to stop acts of terrorism, and he knows that that’s the case.”
In fact, Cruz is right, and Rubio, the only presidential candidate on the Senate Intelligence Committee, is wrong. Although the exact percentages have not been published—leading to some questions about whether Cruz revealed classified information during the debate—the Obama administration has said that “the overall volume of call detail records subject to query pursuant to court order is greater” under the new law.
Rubio erred further when he said that, because the NSA must get a warrant and then request records from a phone company, it faces more hurdles than traditional law enforcement agencies, which can issue subpoenas. In fact, intelligence agencies can issue secret, mandatory, and extrajudicial National Security Letters to compel the production of records.
Other candidates jumped into the surveillance fray, too. New Jersey Gov. Chris Christie, who served as U.S. Attorney in New Jersey during the Bush administration, talked up his seven years in that office “working with the Patriot Act, working with our law enforcement, working with the surveillance community,” and he urged Congress to “restore those tools that have been taken away by the president and others.”
Rand Paul, the libertarian Kentucky senator and staunch civil-liberties advocate, attacked the old metadata program and said “we are not any safer” as a result of the mass collection of Americans’ phone records.
“We get so distracted by all of the information,” he said, “we’re not spending enough time getting … specific information on terrorists.”
Encryption policy also had its moment in the sun during the debate, as several of the candidates joined a decades-old fight over whether tech companies should modify their encryption so that the government can always bypass it—and read suspects’ encrypted communications—with a warrant.
Ohio Gov. John Kasich said that the government had to “solve the encryption problem,” and he warned about situations “where we cannot hear what [suspects are] even planning.”
Former Hewlett-Packard CEO Carly Fiorina stumbled in her answer on encryption. She first told a story about helping the NSA expand its surveillance infrastructure after 9/11 by sending it a truck full of HP equipment, arguing that the private sector should always help the government improve its technological capabilities. But when pressed on whether she supported requiring tech companies to add so-called “backdoors” to their encryption, she incorrectly summarized the current situation.
“They do not need to be forced,” Fiorina said. “They need to be asked to bring the best and brightest, the most recent technology to the table.”
In fact, the Obama administration has attempted for several years to pressure tech companies into adding backdoors, despite fierce criticism of the idea from security experts and some former intelligence officials. Tech companies have refused to do so.
Screengrab via CNN | Remix by Jason Reed