Sensenbrenner Complains on DOJ Surveillance Lobbying; Sessions Also Faces AT&T/TW Questions

A day before the committee marked up and approved the USA Liberty Act (see 1711080045), DOJ staff pressed the committee to remove a warrant requirement from the bill, said Sensenbrenner, chairman of the Judiciary Crime and Terrorism Subcommittee. The committee took deliberate steps to “balance privacy and security” concerns with the legislation, he told Sessions, asking why the AG opposed the “compromise” bill.

“Lives should be protected,” Sessions responded, but the committee's bill adds a requirement “we do not think is lawfully required.” HR-3989 would require a warrant to access to information collected under Section 702 solely for evidence in routine criminal investigations, and includes an exception in cases involving a suspected terrorist plot. “I worry about additional burdens” the warrant requirement would impose, which could be “exceedingly damaging” for law enforcement, Sessions said. “Hopefully, we can work our way through it,” he said, promising DOJ would “continue to share our thoughts about how the legislation should be crafted.”

The Trump administration’s stance to “oppose any reform of the law” is a “miscalculation that risks further eroding trust in our intelligence apparatus,” said Judiciary Chairman Bob Goodlatte, R-Va. “We hope we can work with you,” he told Sessions, saying the bill is needed given the threat of terrorist attacks. Rep. Ted Poe, R-Texas, asked Sessions why he opposes a warrant requirement: “You don’t think probable cause and a warrant is required before the seizure [of information]?” Sessions said courts have upheld his view that the program is legal as it stands, and additional warrant requirements aren't needed. Poe doesn’t trust NSA to protect Americans’ privacy in surveillance investigations, saying “it is the responsibility of Congress to set the privacy standards.”

Privacy and civil liberties groups were taken aback at DOJ efforts to kill a bill they don’t think goes far enough to protect privacy. “The administration is refusing to engage in any meaningful conversations” about changes to the surveillance authority, which expires at year’s end, said Neema Singh Guliani, American Civil Liberties Union legislative counsel, in an interview. “They’ve made clear their intent to expand powers with no explanation why that’s good."

The surveillance program “gets vigorous oversight from Congressional committees, FISA judges, the Justice Department, and privacy and civil liberties officers inside the executive branch; none has found intentional abuses,” wrote Steptoe & Johnson attorney Stewart Baker, for Fox News. Baker, a former assistant secretary with the Department of Homeland Security, criticized members of Congress for their “willingness to play chicken with one of our most valuable anti-terrorism programs.” Changes to Section 702 pushed by lawmakers “from the extreme left and extreme right” would put “new barriers to the information-sharing and dot-connecting that we’ve rightly insisted upon after learning the lessons of 9/11,” Baker said.

Privacy Concerns

Privacy groups don’t think Goodlatte’s bill goes far enough, but they give credit to the Judiciary Committee for crafting a measure that puts some new checks on the program. “The Judiciary Committee made huge concessions and as a result its bill will have a very modest impact,” said Michelle Richardson, deputy director of the Center for Democracy & Technology's Freedom, Security and Technology Project. “The administration's continued opposition proves it is opposing reform efforts out of principle, not out of legitimate concerns about workability or investigative needs.”

“The Administration has made clear they want the 702 program made permanent in its current form,” Cato Institute analyst Patrick Eddington emailed. “Sensenbrenner’s bill is a sham ‘reform’ bill that would effectively give the Administration what it wants except a permanent extension. Sessions’ reluctance to take the deal should anger surveillance hawks.” Sessions "made clear his opposition is based in politics, not policy," said Jake Laperruque, senior counsel with the Constitution Project.

"It’s disheartening to see DOJ calling the warrant requirement, the crown jewel of the Constitution’s privacy guarantees, a ‘burden,’” said Ashkhen Kazaryan, legal fellow at TechFreedom. The law allows law enforcement to access and use Americans’ communications swept up under 702 surveillance with no warrant -- “a clear violation of the Fourth Amendment,” she said. The USA Liberty Act failed to fully fix the problem yet still the DOJ lobbied against it, she said. “Opposing such necessary reform undermines the primary mission of the agency: protecting our constitutional rights."

AT&T/TW

Sessions said he "was not able to accept as accurate" reports DOJ wanted a CNN divestiture (see 1711080047), and the investigation is "professional." House Judiciary Regulatory Reform Antitrust Subcommittee Chairman Tom Marino, R-Pa., pressed Sessions on the merger requiring divestiture of some assets. Sessions said he has "never been an antitrust expert," but an "experienced" team is looking into the takeover. "I'm not able to announce any new policies," he said and otherwise wouldn't comment, saying examining vertical-horizontal parameters of the combining companies "is always part of the discussion." Rep. David Cicilline, D-R.I., pressed Sessions on whether any White House official contacted DOJ about the proposed transaction. "I'm not able to answer," Sessions said.

Any DOJ challenge to AT&T/TW is likely a losing proposition in court, Tech Knowledge Director Fred Campbell blogged Tuesday. Justice would face an uphill battle showing New AT&T would have sufficient market power to keep rival pay-TV distributors from accessing TW content or rival programmers from accessing AT&T's distribution network, since a foreclosure strategy hurts a company more than it helps it, he said. Empirical evidence and FCC precedent show New AT&T wouldn't have sufficient market power in distribution or programming to profit from foreclosure tactics, Campbell said. He said pursuing structural conditions rather than behavioral ones in a vertical merger involving companies with little evidence of market power "is bizarre." Some see DOJ's alleged push for structural conditions as evidence the agency is moving away from behavioral conditions (see 1711130006).

Comcast "appears hardwired to discriminate," so if the behavioral conditions put on Comcast/NBCUniversal are shown to have been effective, behavioral remedies "can survive anything," George Washington University Regulatory Studies Center Senior Fellow Hal Singer blogged Tuesday. Comcast didn't comment. Singer said the strength of a DOJ case against AT&T will come down to whether Time Warner content is attractive enough for the telco to lure enough new video subscribers from competitors to offset the loss in content license revenue from a foreclosure strategy, and what was must-have content in 1996 when TW bought Turner might not be the same in 2017's media landscape.

DOJ seems likely to sue to block AT&T/TW within weeks, and it's hard to believe the agency wouldn't be talking significant divestiture demands with the companies if it weren't fully prepared to go to trial and win, BTIG's Rich Greenfield blogged Tuesday. But court is never a sure thing, and DOJ antitrust chief Makan Delrahim might not want to risk losing a high-profile case months into his appointment, the analyst said.

Standard & Poor's Monday said it's maintaining its AT&T ratings on CreditWatch negative, where they have been since October 2016, after the announcement of the TW deal. S&P said since the company publicly stated it hasn't been told it needs to sell any assets as a condition for closing and it views Turner assets as core to its strategy, AT&T likely would contest in court any required divestitures.