MA-5: Addivinola and Clark tussle over surveillance, differ only on wiretapping bill *UPDATED*

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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.

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