On Friday, Georgetown University's law school hosted 'The Color of Surveillance,' a conference about government monitoring of black Americans. Two of the most anticipated speakers were James A. Baker, the FBI's general counsel, and David Garrow, an MLK biographer who has documented the FBI's unlawful surveillance of Martin Luther King, Jr. and other black Americans. The conversation, and the room, were somewhat tense: Baker was cautious and Garrow sharp-tongued, though the latter emphasized that the FBI of the 60s was the primary focus of his ire.
In the 1960s, the FBI used wiretaps, bugs, and informants to dig deeply into King's personal life, because the United States government felt that his peaceful activism for civil liberties was threatening. Garrow said that much of the information gleaned from that government spying on King remains unavailable, including the informants used. Garrow said he had even been threatened with violating the Espionage Act in the early 1980s (when he first started researching the FBI's surveillance of MLK) "because of the informant identities [he] had managed to discover."
Garrow said that the FBI at that time had "an organizational culture of surveillance and of political control," and that it wasn't limited to the FBI's founding director J. Edgar Hoover, who remained its head until his death in 1972 and is notorious for his abuses of power. There were attempts at blackmail and encouragement of suicide. "There is only one thing left for you to do. You know what it is," wrote an FBI agent in a letter to King that detailed knowledge of his extramarital sexual activity. The FBI also leaked the gossip to the press, but it declined to report it.
Baker, who has been the FBI's general counsel for a little over two years, didn't defend the agency's actions in the 60s. He agreed with Garrow and everyone else that spying on King as it was done was a mistake, saying, "There were insufficient constraints on the government's authority to engage in national security surveillance." He repeated a story that FBI director James Comey told The Guardian last year, about the director keeping attorney general Robert Kennedy’s approval of the wiretap order for King on his desk as a reminder of the agency’s mistakes.
So what the FBI really learned from spying on MLK is that it is capable of making terrible mistakes and going too far when it comes to surveillance. Baker, who teaches law school courses, said that the MLK example is one he has used for the last decade as an example of the agency's overreach.
"You can’t understand the statutory framework in which [the FBI] operates today…if you don’t understand the King case," he said. He referred specifically to Congressional oversight committees and the 1978 Foreign Intelligence Surveillance Act [FISA] and the courts set up under it to govern domestic surveillance, which were a response to the Church Committee's findings on the surveillance of King and others.
"There is much more significant accountability and oversight constraints with regards to the FBI's surveillance activities than there were in the past," said Baker.
But it would seem that the U.S. government as a whole hasn't taken the King case to heart. Last year, The Intercept revealed that the Department of Homeland Security has been monitoring Black Lives Matter activists, sometimes at "gatherings that seem benign and even mundane."
The FBI's current most high-profile attempt to more easily investigate threats and peer into the lives of Americans is its legal wrangling with Apple over the San Bernardino shooter's encrypted iPhone in California and a drug dealer's phone in New York. After Apple refused to build a backdoor into the iPhone, the FBI managed to hack its way into the phone, though it's still fighting the New York case in court.
The recent legal fight was on Baker's mind Friday. "We love encryption. It helps us in so many ways as a society," he said. "But it has a cost. We need to think about it as a society: how will we deal with that cost?"
Sadly, the panel did not address the times that the constraints which grew out of King's surveillance have been abused, bypassed, or ignored. After 9/11, FISA courts were heavily abused by the NSA. The FBI has used tools like national security letters to circumvent FISA court decisions which go against them, which is incredibly rare in the first place. There've been calls for change, but a FISA reform bill introduced in 2015 was referred to the Senate Judiciary Committee, where it languished. (That bill's co-sponsor, Dianne Feinstein (D-CA) is currently behind draft legislation that would effectively outlaw encryption.)
Baker also held up the legal standard of "probable cause," which FISA court applications must meet, as a bulwark against abuse of surveillance. But as The Intercept and others have reported, it's impossible to tell how the courts interpret that standard because "only the Justice Department and the FBI are permitted to attend its proceedings on domestic surveillance."
As a lawyer for the Justice Department in the mid-2000s who reportedly "shared…reservations and aided the judges" concerned about NSA spying and its legality, Baker is certainly aware of the possibility for abuse. But now he's more concerned with information the FBI doesn't have, saying electronic surveillance is becoming less effective because of data being guarded by strong encryption, which "the laws today, generally speaking, do not enable us to get access to."
"We think of ourselves as the servants of the American people. That we belong to you, you own us," said Baker. "It’s our obligation…to tell you how it’s going."
How Americans feel it's going is a little murky. A Pew Research Center survey on government surveillance conducted last year found that under 40% of adults were very concerned or somewhat concerned about government monitoring of search engine, cell phone, and email activity. However, a majority said they had recently become less confident that government surveillance was in the public interest, and they were about evenly split on the effectiveness of judicial oversight of surveillance. Not a ringing endorsement.
Before the panel ended, someone watching online posed a final question to Baker, returning to the surveillance of black Americans. They asked whether, given the disenfranchisement of minority populations, “isn’t it true that many of the people who want this data are not the ones at risk of being surveilled?” Baker replied that it was "a question about the nature of democracy that I’m not sure I can or should answer.”
Ethan Chiel is a reporter for Fusion, writing mostly about the internet and technology. You can (and should) email him at firstname.lastname@example.org