A year that has alternated between major surveillance reforms and calls for new spying laws in the wake of ISIS attacks is set to close with a pendulum swing back against NSA surveillance following the Wall Street Journal report that the agency scooped up communications of members of Congress speaking with Israeli government officials. While the revelation has provoked distress — as any Executive surveillance of the Legislature would — it should also come as no surprise. This story is indicative of a much broader problem with Section 702 of FISA that has been in public debate for years: Warrantless NSA surveillance is grossly overbroad, and easily sweeps in the communications of huge numbers of Americans who have no connection to alleged wrongdoing.
Members of Congress seemed shocked and outraged at the Wall Street Journal story. Rep. Mark Meadows (R-NC) declared: “Spying on the PM of #Israel & Members of Congress has NOTHING to do with national security– only politics.” Former House Intelligence Committee Chairman Pete Hoekstra described the surveillance as “Very disturbing. Actually outrageous. Maybe unprecedented abuse of power” and called for prosecutions. Senate Intelligence Committee member and presidential candidate Marco Rubio (R-Fla.) said Americans “have a right to be concerned” and that “it might be worse than what some people might think.” And the House Intelligence Committee has already ordered an investigation into the surveillance.
As Trevor Timm has noted, such anger seems to perhaps be a bit disingenuous or to demonstrate a troubling misunderstanding of FISA. After all, former Rep. Hoekstra voted for the bill in 2008 and Rubio vocally supports Section 702, which includes a feature permitting the surveillance they now find so distasteful: Its incredibly broad authority for designating targets.
The NSA maintained over 89,000 Section 702 targets in 2013. In 2014, the number of targets rose to 92,000. If that seems too large to include just ISIS members and other suspected wrongdoers, that’s because it definitely is. Any non-US person abroad can be targeted so long as a “significant purpose” of surveillance is to obtain “foreign intelligence information.” This is broadly defined to include not just security-related information, but also anything with respect to a foreign power that relates to the conduct of foreign affairs. With such broad authority, snooping on foreign government officials is just the tip of the Section 702 iceberg (which is itself dwarfed by Executive Order 12333, which governs even broader surveillance abroad). Protesters, activists, human rights organizations, academics, bloggers, and public commentators around the world could all be caught in this expansive foreign intelligence information net.
The implications for Americans are profound: You don’t need to be in contact with a suspected terrorist to be subject to warrantless NSA surveillance. You just need to be an average citizen in contact with an average foreigner abroad, a problem I and other advocates have been highlighting for years. Members of Congress are now being afforded a “luxury” thousands (perhaps even millions) of Americans have yet to receive: knowledge of exactly how Section 702 surveillance intrudes on their privacy.
The Wall Street Journal report also shows how misleading a key Intelligence Community talking point on Section 702 is. The IC regularly claims that surveillance of Americans is just incidental collection, akin to what happens during any domestic wiretap. Why aren’t members of Congress reacting with relief that they were merely subject to such “incidental” collection? Because this surveillance highlights two fundamental differences between Section 702 and ordinary wiretaps. First, criminal wiretaps are targeted at suspected wrongdoers, limiting eavesdropping to the highest degree possible with a focus on criminal investigations. Second, criminal wiretaps require judicial authorization to prevent mission creep and abuse. These important checks limited federal and state criminal wiretaps — and the incidental collection they included — to just 3,554 in 2014, while in their absence Section 702 targets ballooned to over 92,000.
In the world of criminal wiretaps, members of Congress — and, more importantly, all Americans — can only be monitored via incidental collection if they’re speaking with someone suspected of criminal activity, that suspicion is based on a heightened probable cause standard, less intrusive methods have been exhausted, limits on communications facilities and time are properly set, and a judge approves the surveillance in light of all these limits. In the world of Section 702 incidental collection, all these safeguards are thrown out the window. And that is the world we are living in.
Fortunately, these are problems we can address. The purpose for Section 702 surveillance could be reasonably narrowed to focus on security needs, such as by following the purpose restrictions the Obama administration established in Section 2(5) of PPD-28. And minimization rules for handling of Americans’ incidentally collected communications could be strengthened and preserved in statute. Hopefully Congress will remember the lesson the Wall Street Journal report when Section 702 is up for reauthorization in 2017: Overbroad surveillance authority begets overbroad surveillance, with a real and unacceptable cost to Americans’ privacy.
All opinions expressed in this post are the author’s and do not represent those of his employer.