UPDATE: To reflect substantive changes in information received from the Addivinola campaign, the title of this article and portions of the analysis have been changed to more accurately reflect Councillor Addivinola’s positions.
The primaries are over, and two very different candidates are facing off in the December 10 general election: State Senator Katherine Clark (D) and Frank Addivinola (R). Both candidates have responded to the Digital Fourth questionnaire on surveillance issues, so we can compare their positions directly and in their own words.
We gave the same questionnaire to all seven Democratic primary candidates, but the strongest opponents of government surveillance (Long, Sciortino and Spilka) did not make it through the primary. Here are the results for the remaining two candidates.
SHOULD “FUSION CENTERS” BE DEFUNDED?
Question: A US Senate report recently found that “fusion centers” had not successfully prevented any terrorist attacks, and had a pattern of redefining `terrorism’ to include peaceful activists. If elected, would the candidate support or oppose the withdrawal of federal funds for fusion centers?
Both Senator Clark and Mr. Addivinola support withdrawing federal funds for fusion centers. Clark 1, Addivinola 1.
THE AMASH AMENDMENT
Question: If elected, would the candidate support or oppose the Amash-Conyers Amendment, which limits the collection of any tangible things pursuant to PATRIOT Act section 215 to those tangible things that pertain to a person who is the subject of an investigation described in section 501 of the 1978 FISA Act?
Both Senator Clark and Mr. Addivinola say they would support the Amash Amendment, which would limit the NSA’s ability to go on fishing expeditions for people’s private data and which drew support from a varied coalition of 207 libertarian Republicans and progressive Democrats. Clark 2, Addivinola 2.
SHOULD THE GOVERNMENT NEED A WARRANT TO SEARCH YOUR DIGITAL DOCUMENTS?
Question: If elected, would the candidate support or oppose reforms to the Electronic Communications Privacy Act that would require an individualized warrant based on probable cause before the government can search someone’s email?
Sen. Clark says Yes, and notes that she has cosponsored legislation that would make this happen on the state level in Massachusetts. Mr. Addivinola’s initial response was, “Support, assuming it applies to U.S. Citizens.” We analyzed this statement as it stood, and found it lacking in understanding that our tradition in the U. S. is to accord non-citizens living in the U. S. the same due process rights in the court system as non-citizens. However, this morning his campaign contacted us and provided the following clarification from the candidate:
4th Amendment protections apply to all Americans (both Citizens and Legal Permanent Residents) as well as other nationals on US soil. Foreign nationals on foreign soil do not enjoy the same protections. However, if the status/location of a suspicious person is unclear, we should err on the side of prudence and probable cause must be established to obtain a warrant for government (and parties acting on its behalf) to search that person’s email communications (or conduct other searches).
This is a much more accurate reflection of what the Constitution requires. While we at Digital Fourth might go beyond that, and argue that in the context of technology that enables suspicionless mass electronic surveillance, it is unwise and unproductive for the United States to spy at will on foreign nationals on foreign soil, it’s not unconstitutional to do it, and Sen. Clark has not addressed either whether it’s productive. Therefore, we are awarding both candidates a point for their answers; Clark 3, Addivinola 3.
THE SURVEILLANCE STATE REPEAL ACT
Question: If elected, would the candidate support or oppose H. R. 2818, the Surveillance State Repeal Act?
The responses of the two candidates to this question were initially more ambiguous. Neither candidate, unlike three of the Democratic primary candidates, explicitly committed to voting for or cosponsoring this bill. Sen. Clark commented:
We need to make sure that any wiretaps are targeted at individuals, limited in time, and only allowed with a search warrant after establishing probable cause. The government should not be allowed to go on fishing expeditions into our private communications.
Councillor Addivinola initially commented:
The bill’s summary outlines some good measures but there are other elements that are not very clear and may be of concern. Would need to read the bill in its entirety and consult with experts in the field to make a voting decision. The fact that the bill is not bi-partisan is also concerning.
His campaign later contacted us and endorsed Sen. Clark’s position, commenting,
This specific quote actually sounds almost word-for-word what Mr. Addivinola has been saying when addressing various groups during his campaign. Mr. Addivinola is also concerned with very high secrecy level within the FISA courts. Public has no access to ANYTHING that happens in those courts and Mr. Addivinola would very much support measures that made FISA court proceedings more accessible to public with proper reduction of sensitive personal information. Mr. Addivinola read an interview by a retired FISA court judge who was concerned with the fact that some warrants they were issuing were broadly applied and actions not explicitly allowed by the court were taken by the NSA and other agencies obtaining those warrants. Warrants issued for a certain individual or a narrow group of individuals were broadly applied to much larger groups of people. Mr. Addivinola is deeply concerned about this fact and would support stricter measures to ensure that such abuses of power do not take place.
So far, then, it’s neck-and-neck, at Clark 4, Addivinola 4.
EXPANSION OF ELECTRONIC WIRETAPPING IN MASSACHUSETTS
We come down, once again, to the question that most clearly divided Sen. Clark from the other Democratic primary candidates: her sponsorship of Massachusetts Attorney-General Martha Coakley’s bill to substantially expand electronic wiretapping in the state of Massachusetts. You can find some of our prior coverage of this bill here, here and here.
Question: The MA Attorney-General’s office has proposed a substantial expansion of the state’s electronic wiretapping powers. Does the candidate support or oppose this expansion?
While Senate Chair of the Judiciary Committee on Beacon Hill this year, Sen. Clark, a long-time political ally of Attorney-General Martha Coakley, cosponsored this misguided bill, which in one form or another has been a long-term goal of the AG’s office. It would have changed Massachusetts’ strict electronic wiretapping laws to allow wiretapping of much more minor crimes, and would have removed the requirement for law enforcement to demonstrate any connection with organized crime. Sen. Clark, as a cosponsor of the bill, passionately defends it, and both she and Martha Coakley have inaccurately depicted the Supreme Judicial Court of Massachusetts, as a body, as being supportive of their proposed changes.
We have organized strongly against this bill, leading the petition campaign against it. Mr. Addivinola opposes it, though without detailing his reasons. While we’d like to hear more from him about this on the campaign trail, and we recognize that Sen. Clark has made strong commitments on all of the other questions, the wiretapping bill continues to be a problem for the Clark campaign, and results in the edge in this face-off going to Mr. Addivinola. His position on the wiretapping bill brings his overall positions on surveillance – if on little else – closely into line with those of Democratic primary candidates Carl Sciortino, Karen Spilka and Martin Long. It’s an interesting illustration of how the surveillance issue cuts across party lines, and how the current political climate in the District is highly skeptical on surveillance issues.
Final result? Addivinola 5, Clark 4.
Personally I think the Constitution requires what the proposed reforms to ECPA provide even if there were no legislation. It’s possible he meant domestic as opposed to overseas cases, but was not being careful with his words. Of course it may be as bad as you interpret, but I always look for ways to give someone the benefit of the doubt.
…your more favorable interpretation would still be hard to square with anything that made legal sense. What “overseas cases” would be brought under U. S. law? If a search or seizure occurs in a foreign country, then it’s subject to the laws and constitutional practices of that country. If the US government searches or seizes in a foreign country, it won’t matter if the Addivinola rule applies and the US government thinks a warrant isn’t needed, if the laws of the actually relevant jurisdiction require one. The US government can’t lawfully go round the world seizing people’s stuff at will.
…where one party was in the US and another party was not which I believe the feds have previously claimed generous authority to tap. Also in our military actions we have eavesdropped on the communications of alleged foreign terrorists. Thank you for checking back on that.
I have added a paragraph above to allow for the possibility that Addivinola didn’t actually mean what he said.
I think you are mistaken in calling Addinivola a former Boston City Councilor. I can’t find that claim on his campaign website. He was an unsuccessful candidate for at-large Boston City Council in this year’s primary.
@Christopher, looks like you were more than right that clarification from the campaign was needed. I have now received that information, and have corrected the article, resulting in the interesting result that Addivinola’s official positions on surveillance are stronger than Clark’s.
@Davemb, you’re also right, and thank you for the correction, which I have implemented in the article.
But I think it would be beneficial if when you are doing this great research and service to voters that you spend a little more energy on the fact-checking and follow-up with candidates in the future.
With the first release of your survey of the CD-05 candidates, a substantive lack of information or late arrival of complete responses from some candidates skewed the results to favor candidates whose actions have actually shown their willingness to go along with government intrusion in private matters. When you posted the full(er) report, it had a decidedly different tally for the candidates who had the strongest positions (and records….two different things) on privacy protection. I think that it is possible that the initial post received more attention than your updates so perhaps some misinformation/misperception was generated?
Senator Clark seems to have moderated her stance since entering the limelight of the CD-05 race and has learned to be coy or reluctant to be publicly pegged to the AG’s bill than when she initially supported (co-sponsored) it. That remains problematic for me and others.
Again, I do not mean to be critical of this work, it is very useful information and a topic we need to be examining…..closely.
Thank you!
Hey heartlanddem,
I quite understand your frustration. On the primary questionnaire, it may be somewhat misplaced, because I did plenty of follow-up with the Spilka campaign to get them to respond to the questionnaire before going public. I was explicit with them beforehand that it was going to go up on BMG and be seen by a lot of people, and they dropped the ball and were the only major candidate’s campaign to not respond. Then they realized that it was up and that their lack of response was harming the candidate, so they contacted me and I revised the article as soon as I received their responses.
In the general, with Addivinola and Clark, I was at fault to have wrongly interpreted the (rather non-specific) responses by the Addivinola campaign at first. It hit me closely because one response appeared to be arguing for different due process rights for non-citizens. As it turns out, they weren’t arguing for that, but the best I can say in my defense is that again I thoroughly revised our findings as soon as their better and fuller responses were received.
The conclusion here is partly that I should have pursued better and fuller responses from the Addivinola campaign before going live, and partly that campaigns should respond with clear answers in the first place.
These are all good questions to be asking, thank you for this work.
Another question I find interesting is if the candidates think what the NSA has been doing is *currently* legal and if the laws used to justify it are constitutional. For what it’s worth, of the candidates I briefly spoke to before the primaries (Brownsberger and Koutoujian were the others), Addivinola was the only one to flatly claim the NSA mass surveillance is unconstitutional.
Hi Ykozlov
I would be confident in saying that both current candidates feel that what the NSA is currently doing is unconstitutional. Clark has a good grasp of the Fourth Amendment and what it requires. The wiretapping bill, unpalatable as it is, does not violate the Fourth Amendment itself, because it maintains warrant requirements prior to an individualized wiretap based on probable cause.
I am impressed by Addivinola’s thoughtful positions. I’ve never before voted for a republican for congress, but I don’t like Clark’s position. I guess there is a first time for everything!
Hi Bluewatch,
The tradeoff here is interesting.
I should speak separately here as the director of Digital Fourth, and in my private capacity as an MA-5-based Democrat.
Digital Fourth is a single-issue group, and only considers candidates with a view to their positions on surveillance. It’s inevitable that Sen. Clark’s support of the MA wiretapping bill would weaken her performance on a questionnaire that includes it, but it is also possible that electing her to Congress will dim the prospects for that bill: see our recent article , “Clark Victory May Be Good For Digital Privacy“. Digital Fourth has to go by how the candidates respond, and anything else would disrupt its mission.
Speaking in my private capacity as a Democrat: I voted for Obama in 2012 (the first election I could vote in, having naturalized earlier that year). In all likelihood, I will vote for Clark in the general. Passionate as I am about the surveillance issue, there are also other issues I care about, particularly healthcare, immigration, social security and GLBT rights, that would make it especially difficult for me to cast my vote for a Republican who would be very likely to work to undermine Democratic achievements and aspirations in those areas. I’m not saying it would never happen, but in the context of this election, it’s not happening. My personal feeling is that Clark has taken surveillance seriously as an issue in this election, and has made commitments to vote for NSA reform, so that’s good enough for me as an individual Democratic voter.
Is the concern that more devices and crimes are now included in the bill? Does the bill change the procedure to wire tap these devices i.e. proper subpoenas and cause? Is a judge still involved in making a decision? How will this affect one’s privacy differently than under the old statute? It is still unclear to me exactly what is objectionable.
Hi Oetkb,
Our major objection to the wiretapping bill is not that it violates the Fourth Amendment, because it doesn’t. It maintains in place the requirement to obtain a before-the-fact individualized warrant from a judge. Our objection is the broader policy-based objection that without advancing any good evidence for why it would be needed, and in some cases lying about why it would be needed, it seeks to make electronic wiretaps a much more regular instrument for state law enforcement. Instead of being used in extraordinary cases, connected with organized crime, wiretaps could be used for any drug or firearms crime and many other non-violent crimes as well, provided they carry a potential sentence of one year or more in prison. To us, it seems excessive to grant that amount of latitude to law enforcement in terms of who they can eavesdrop on.