The controversy continues over President Trump’s Twitter storm accusing President Obama of wiretapping him. On Monday, members of Congress peppered FBI Director James Comey with questions about the claims, who once again dismissed them as lacking support. Even Devin Nunes, the Republican chairman of the House Intelligence Committee, who originally defended Trump’s claims, has defected. “I don’t think there was an actual tap of Trump Tower,” the congressman said last week at a news conference. None of these statements seem to have affected President Trump, however, who continues to stand by his accusations.
But regardless of whether these claims turn out to be completely false, which is all but certain now, they do raise a question that shouldn’t be casually dismissed: Could President Obama’s administration have surveiled his political opponents under its interpretation of the law? Could President Trump’s administration now do the same?
The answer, unfortunately, is yes. And that should make Republicans and Democrats nervous enough to work together to reform our surveillance laws.
Many have dismissed President Trump’s accusations as the unsubstantiated ramblings of a Twitter addict with little understanding of how our intelligence laws work. These may be fair criticisms—today the president cannot simply order the intelligence agencies to wiretap his domestic political opponents. But many of our surveillance authorities have been interpreted so broadly that they put vast amounts of Americans’ data easily within the president’s reach. Without significant reform, exploiting this immense pool of data may one day prove irresistible. Thus, whether President Trump’s accusations are true or not, the potential for White House officials to abuse our spying laws for political purposes is real.
It is important to remember that surveilling political opponents in the name of security is something of an American pastime. In the 1960s, the FBI targeted political activists, including Martin Luther King Jr., claiming they posed “national security” threats. Cesar Chavez, the prominent labor and civil-rights activist, was similarly tracked for years because of his supposed communist ties.
In response to many of these types of abuses, Congress created the Church Committee to investigate surveillance practices. The widespread crimes and abuse they uncovered led to the passage of the Foreign Intelligence Surveillance Act (FISA) in 1978. But recent disclosures demonstrate that the law did not go far enough. Moreover, passage of the Patriot Act in 2001 and other laws have undercut the protections in FISA, further opening the door to biased, unjustified, or politically motivated spying. There are jarringly few protections against these abuses.
The result: if the president wanted to surveil his critics, he could exploit at least three national security authorities.
Section 702 of FISA
Section 702 of FISA was passed at the request of the Bush administration and extended at the request of the Obama administration with bipartisan support. Now the Trump administration is reportedly pushing for reauthorization of this law when it is set to expire in 2017, with the nominee for the director of national intelligence calling it the “crown jewels” of the intelligence community. FBI Director Comey once again defended the controversial program.
While Section 702 was passed to protect against international terrorism, its tentacles reach much farther. Under the law, the government collects emails and phone calls—without a warrant—of nearly 100,000 foreign “targets.” These include their conversations with people in the United States. These targets can include journalists, human-rights workers, and other individuals who have no connection to terrorism or criminal activity, and whose only offense may be discussing information related to “foreign affairs”—a nebulous term.
Over 250 million internet communications alone are collected under Section 702 annually. While the government refuses to disclose how many Americans have been swept up in this dragnet, analysis of leaked documents suggests that at least half those communications contain information about a U.S. citizen or resident. If that’s accurate, the Trump administration will collect over 125 million internet communications that contain information about someone in the United States. Given that much of the data collected under Section 702 is stored for five years or longer, it means the government likely has access to hundreds of millions of stored emails and phone calls.
Once collected, the government asserts that they can mine this information to scrutinize the activities of Americans—opening the door to political abuse. For example, if the intelligence agencies under President Obama had wanted to search through Section 702 data for information about Senate Majority Leader Mitch McConnell (R-Ky.), on the argument that McConnell might possess information about “foreign affairs,” no technological barrier or explicit provision in Section 702 would have stopped them. Under current procedures, no court would have needed to approve this and Senator McConnell would not need to be notified that he had been the subject of such a search.
Under the government’s current interpretation of the law, this information could then be used as the basis for a criminal prosecution, criminal investigation, civil action, or additional surveillance.
Executive Order (EO) 12333
Under Executive Order 12333, the government engages in the bulk collection of communications and data—with no approval from a court or any other independent judicial body. This surveillance primarily takes place abroad. While the government is not supposed to target Americans under EO 12333, this spying likely results in the collection of information of millions of Americans. We know, for example, that the government reportedly relied on EO 12333 to steal data transmitted between certain Yahoo and Google data centers; to capture the content of all phone calls to, from, and within the Bahamas and other countries; and to collect millions of text messages from individuals around the world.
Under EO 12333, the government can target foreigners for “foreign intelligence” purposes, which, similar to Section 702, is a category so broad that it easily encompasses individuals who have no nexus to a national-security threat. As a result of recent NSA procedures, agencies across the federal government now have the right to request access to the raw information collected under EO 12333, which can contain the information of both Americans and foreigners.
While NSA officials have said there are procedures that limit the ability of the NSA to search through electronic surveillance captured under EO 12333 for information about Americans, those procedures are largely secret and can be modified purely at the discretion of the president. Moreover, the government has taken the position that information collected under the executive order can be used to prosecute Americans for certain ordinary domestic crimes—even though it was collected without a warrant.
In practice, this means that if the president decided to unilaterally change EO 12333 procedures to allow him to search for information for purposes unrelated to national security, he would have broad latitude to do so under the government’s current legal interpretations. In addition, it means that if the government stumbles across information related to these individuals in the trove of data they collect, they may assert the right to use it as the basis to prosecute or further investigate these individuals, without ever notifying them. This creates a bizarre incentive for any ill-intentioned president: the more information collected under EO 12333 in the name of security, the more information that can be mined for other purposes.
Although FISA was passed with the admirable goal of halting many of the surveillance abuses of the 1960s, this statutory scheme is not nearly as protective as a warrant. Specifically, unlike an ordinary warrant or wiretapping order, a traditional FISA order does not require the government to believe that its spying will produce evidence of a crime, and the secrecy surrounding the FISA court undermines effective oversight. For these reasons, the ACLU has long cautioned that FISA authorities are prone to abuse.
Under FISA, when the government seeks to conduct electronic surveillance, it must submit an application to the secret intelligence court demonstrating that there is probable cause that its individual target is a “foreign power or an agent of a foreign power,” and it must identify the particular phone line or communications facility used by the target. The terms “foreign power or agent of a foreign power” are broadly defined. They include foreign government officials, foreign political organizations not substantially composed of U.S. citizens or green-card holders, and foreign individuals engaged in terrorism. While this authority is certainly narrower than EO 12333 or Section 702, it too leaves room for abuse.
For example, under traditional FISA, the government would have the authority to surveil virtually any foreign government official—including that official’s entirely legal conversations with individuals in the United States. These communications can be retained or disseminated under procedures that are more lenient than those that apply to federal wiretaps. For instance, in the wiretapping context, the government is supposed to immediately purge communications that are considered irrelevant. FISA, by contrast, permits retention, analysis, and dissemination of Americans’ information for years, regardless of whether there is any evidence of criminal activity.
The Potential for Abuse Is Real, No Matter What the Intel Community Says
The intelligence agencies would argue that these authorities do not permit the government to deliberately “target” Americans—at least not without a warrant—mitigating constitutional concerns. But that explanation only tells half the story. The reality is that these authorities are used to vacuum up large amounts of Americans’ data, do not prevent the government from knowingly capturing the communications that Americans have with tens of thousands of foreign “targets,” and, in some cases, routinely collect purely domestic communications. Moreover, once Americans’ information is collected, there are inadequate safeguards to ensure that such data is not inappropriately used.
The fact that our intelligence-gathering laws leave room for politically motivated surveillance should give us pause. And it’s not enough for President Trump or members of Congress to simply express outrage that the private communications of political leaders could have been surveilled. With the expiration of Section 702 looming, they have the opportunity to push for a complete overhaul of our surveillance authorities, and ensure that they are brought fully in line with the requirements of our Constitution.
In other words, President Trump should match his action to his tweets, and demand that Section 702 and other authorities be reformed.
Neema Singh Guliani is a legislative counsel at the ACLU focusing on surveillance, privacy, and national-security issues. Prior to the ACLU, she worked at the Department of Homeland Security and as an investigative counsel with the House Oversight and Government Reform Committee.