Spy powers at risk amid Trump controversy

The growing controversy around foreign surveillance and Trump associates is adding fuel to what's already expected to be a fiery debate in Congress over the reauthorization of FISA Section 702.

Shutterstock image (by Bruce Rolff): eyes in a binary tunnel.
 

Congress was already facing a contentious debate over reauthorizing Section 702 of the Foreign Intelligence Surveillance Act before the end of the year. Now, the growing controversy around foreign surveillance and President Donald Trump and his associates is turning up the heat.

On March 22, House Intelligence Committee Chair Devin Nunes (R-Calif.) called a press conference to announce that he had been presented with classified reports showing that Trump associates, and possibly the president himself, had been caught up in what he characterized as legal FISA surveillance of foreign subjects.

Nunes then went to brief the president about his findings before sharing them with the rest of the intelligence committee. Some Democrats have said that action compromised the committee's investigation and that Nunes should step down as committee chair.

At the center of the entire controversy is FISA and Section 702, which authorizes the U.S. to conduct electronic surveillance on non-U.S. persons outside of the United States without a warrant.

That authority comes with the responsibility to minimize the collection of information and communications by Americans interacting with foreign targets and to "unmask" Americans only when absolutely necessary.

Opponents of the authority have long argued that the law does not provide enough privacy protections for Americans and that it lacks transparency about how many Americans are swept up in foreign surveillance and how any incidental data collection can be used in any legal proceedings.

"Members of Congress are gaining a new understanding of the dangers of the incidental collection of communications of Americans that occurs routinely in surveillance," said Gregory T. Nojeim, senior council at the Center for Democracy and Technology. 

"This will prompt Congress to look at the scope of intelligence collection under 702," he added. "Whether it's too broad, to consider the uses to which intelligence collected under 702 can be put … and whether Congress should be better informed about the nature and scope of the surveillance that's being conducted," he added.

Chairman of the House Judiciary Committee, Bob Goodlatte (R-Va.), told FCW in an email statement that reforms might be needed to improve privacy protections under 702.

"Recent illegal leaks of classified information warrant further congressional oversight of our intelligence agencies and the tools they use in order to determine what additional safeguards may be needed and to secure the trust of the American people," he said.

"This is the opportunity for a perfect storm to really get some reforms made," said Arthur Rizer, a former Department of Justice trial attorney and now justice policy director at the R Street Institute.

Rizer characterizes himself as a Libertarian who considers Section 702 an important program that makes America safer, but he also told FCW that transparency and privacy protections have been lacking.

He pointed out that it is still unknown whether any of the surveillance that was collected about Trump associates was done under Section 702 or a standard FISA warrant. Either way, the current political controversy is turning some Republican intelligence hawks into privacy advocates.

During the House Intelligence Committee hearing on March 20, several Republicans appeared to be threatening that if the IC couldn't plug leaks around incidental collection of information on Trump associates that Congress might not be able to reauthorize 702.

During the hearing, Rep. Trey Gowdy (R-S.C.) told FBI Director James Comey that he needed to determine who leaked to the media the names of Americans caught up in surveillance and prosecute the individuals responsible. He said it was part of the bargain with the American people -- that they will support surveillance that keeps them safe as long as their privacy is protected.

"You and I both want to see [702] reauthorized," Gowdy said. "It is in jeopardy if we don't get this resolved."

Rizer said he thinks Congress is now more likely to increase its oversight of 702 going forward and add more reporting requirements on the intelligence community. He also believes that some of the policies in place at the Department of Justice about how it uses intelligence on Americans gathered under 702 in criminal cases should be codified into the statute.

Nojeim said that he hopes Congress will close the "backdoor loophole" that 702 opponents say is used to gather evidence in criminal cases by avoiding warrant requirements.

Adam Klein, a senior fellow at the Center for a New American Security, agreed that the Department of Justice and intelligence community must provide more clarity on the kinds of cases that can be prosecuted using information collected under 702, though he said there's no evidence the collection has been abused.

"I think that the Justice Department could probably provide more information about what it considers to be derived from 702," he said. "That 'derived from' is a term of art. There probably wouldn't be a national security harm in giving more information about how the Justice Department interprets that phrase."

Klein, who considers 702 one of the "crown jewels of intelligence and counterterrorism," said that he wants to see Congress strengthen the role of the Privacy and Civil Liberties Oversight Board, which is currently down to one member and unable function.

He said the FISA court should have to certify that the president has made all necessary nominations to the oversight board as part of the court's annual certification of Section 702.

"So sort of connecting these two issues, the significant surveillance authority with the presence of effective oversight … would do a lot to convince Americans that there is that adequate oversight."

Both Rizer and Klein agreed that there should be more transparency around how many Americans are being swept up under FISA surveillance.

"We don't even know within an order of magnitude what the overall volume of that incidental collection is," Klein said. Both Klein and Rizer said it is difficult for the IC to come up with such a number without possibly violating more privacy protections in the process, but Rizer said that's a worthwhile tradeoff.

Klein said he hopes people will reserve judgment on 702 and whether it was implemented properly as the politics around the investigations of the Trump associates and Russia continue to play out.

"It was already worth trying to build public trust and increase transparency," he said. "I think that task maybe more urgent now that skepticism about surveillance seems to be increasing."

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