The White House and several GOP senators have made it official: They want to make some significant surveillance authorities permanent under law without addressing concerns by civil liberties and privacy advocates that these authorities are being used to collect Americans’ data without the use of warrants.
What we’re talking about is Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments. Section 702 grants some important authorities for the National Security Agency (NSA) to engage in unwarranted surveillance of foreign agents and potential threats overseas. It expires this year if Congress doesn’t renew it.
The problem: While Section 702 is sold as a mechanism of snooping on foreign agents and potential terrorists in other countries, it also ends up collecting private information and communications from Americans if they’ve made contact with these targets. When Trump complained his campaign had been snooped upon while communicating with officials connected to foreign governments (like Russian and Turkey), in all likelihood, the foreign officials were the actual targets.
The NSA has “minimization” procedures when private data and communications originating from American citizens ends up “incidentally” gathered through Section 702. NSA analysts aren’t supposed to be able to easily invade the privacy of citizens.
But there is an “unmasking” process for select people in the government to see names and more identifying information than they would otherwise. According to a recent report, names were unmasked, revealing the identity of a U.S. citizen, on at least 1,200 occasions in 2016.
In this process of “backdoor” searches, the federal government is clearly gaining limited access to the private communications of citizens without getting warrants and with much more limited oversight (there is a FISA court, but it doesn’t operate the same way as a normal court in oversight of these 702 searches). And therefore citizens are not aware when the government has collected and accessed data about them.
But despite Trump’s complaints about allegedly illegal unmasking, the White House has taken to The New YorkTimes to call for Section 702 to be renewed and made permanent. There’s some circular reasoning here in the response to critics who want better protections to keep citizens data from being reviewed:
[I]t does not permit backdoor targeting of Americans, whose communications with foreign persons can be incidentally captured in the process. National security officials may use search terms or identifiers associated with Americans, such as an email address, to query the information lawfully acquired using Section 702 authority.
But this does not entail the collection or search of any new information, and the practice has been upheld by the FISA court and all other federal courts that have considered this issue. It is also consistent with the long history of our legal system. Imposing a warrant requirement to conduct such data queries, as some in Congress have proposed, would be legally unnecessary and a step toward re-erecting pre-9/11 barriers to our ability to identify foreign terrorists and their contacts.
It’s legal because the law says it’s legal. That’s not exactly an argument against changing the law if people don’t agree with the amount of authority it grants to both the NSA and the FBI.
Sen. Tom Cotton (R-Arkansas), who appears to have hitched his star to any wagon promising a more authoritarian government, is leading an effort among pro-surveillance Senate Republicans to keep 702 and the rest of the FISA authorities intact.
Even if the Republican Party controls Congress and has a supportive White House, that doesn’t mean Cotton and Trump are going to get what they want. Pro-surveillance leaders in the Senate initially resisted the USA Freedom Act, which placed some limits on the government collection of Americans metadata, but the House’s refusal to renew an expiring part of the Patriot Act (and a filibuster in the Senate by Sen. Rand Paul) essentially forced its hand.
Section 702 expires if Congress refuses to act, and there are libertarian-leaning Republicans in both the House and the Senate who might resist permanent renewal. It’s really hard to pass a bill through Congress these days, and if enough Republicans refuse, Cotton may end up with the opposite of what he’s demanding here. Those who are resistant to blanket renewal have the leverage here.
Even as the administration is trying to keep its surveillance powers intact, it’s retreating on a promise under the Obama administration (and repeated under the Trump administration) to give Americans an estimate of how many of them have had their data secretly collected by the NSA.
The Office of the Director of National Intelligence (ODNI) under former head James Clapper promised to provide some basic information so Americans had a better understanding of it breadth. But Dan Coats, Clapper’s successor, said last week he would not be able to provide an estimate.