What is the true surveillance scandal we should be focusing on right now? This week reputable journalist Eli Lake and significantly less reputable alt-right conspiracy pusher Mike Cernovich made waves by each reporting that Obama National Security Adviser Susan Rice requested the “unmasking” of intelligence intercepts that would reveal the identity of Trump campaign and transition officials. It quickly became a major headline, with President Trump tweeting that it was the “real story.”
But in fact, the real story—and scandal—of intelligence surveillance and incidental collection is not a fairly routine request by the national-security adviser (checked by procedures and rules), but rather the mass incidental collection and use of Americans’ communications without a warrant. Under Section 702 of the Foreign Intelligence Surveillance Act (FISA), countless Americans are subject to the same incidental collection that President Trump now thinks is a serious problem, and the rules for accessing and using those communications are far more lax than the Susan Rice process, and totally unrelated to foreign intelligence and national security. This law is set to expire at the end of 2017, giving civil libertarians on both sides of the aisle to enact reasonable reforms just as they did in banning PATRIOT Act bulk collection in 2015.
The controversy of the day—Susan Rice requesting the unmasking of information—is a legal and regular procedure for the national-security adviser. In this case, reports Rice received involved agents of foreign powers (they, not any Americans, were the targets of surveillance) talking about and occasionally to Americans. Sometimes the identity of “masked” (meaning anonymized) Americans is totally unnecessary to understanding the foreign intelligence of these reports, but on other occasions—for example, if foreign agents are discussing how to influence or blackmail a U.S. government official—it can be critical. In such cases, the national-security adviser will request the identity to be unmasked, not to target an American, but rather to evaluate and understand the foreign intelligence. And the process to request such unmasking is far from lax, requiring NSA’s confirmation that unmasking is required to understand foreign intelligence.
By comparison, Section 702 of FISA involves the monitoring of Americans with no connection to foreign intelligence and can be used for reasons totally disconnected from the national-security objectives of FISA. This law is the surveillance issue that Republicans, Democrats, and all Americans should be focused on right now.
The first significant and unique problem with Section 702 is that unlike with the original FISA, the surveillance targets need not be national-security threats or foreign agents—any foreigner abroad can be targeted so long as it relates to the conduct of foreign affairs. This means that many innocent Americans will be subject to “incidental collection,” monitored when they communicate with foreigners whom Section 702 surveillance targets. If you talk to anyone abroad who is an academic on global economics or a blogger on foreign affairs, or works at an international organization, or protested in a country like Turkey or Egypt, you could be talking to someone whose communications are monitored, including their communications with you and other Americans. The Intelligence Community has promised for years to provide an estimate on how many Americans are subject to this Section 702 incidental collection but continues to delay. However it’s likely that hundreds of thousands or even millions of Americans are caught up in Section 702 surveillance.
The next major problem with Section 702 is that it requires no warrant for surveillance and involves no direct court oversight. Americans have long been subject to some degree of “incidental collection” through domestic surveillance by law enforcement (principally subject to the Wiretap Act), but only when they are communicating with someone suspected of criminal wrongdoing, with an independent court backing up law enforcement’s suspicions. Judicial approval for domestic surveillance also narrows the scope of incidental collection by limiting the means through which the surveillance can occur. Section 702 lacks those protections, resulting in serious harm to Americans’ privacy.
Augmenting these problems with Section 702 collection of Americans’ communications is how law enforcement can then use them. Once Americans are swept up in Section 702 surveillance, the FBI can search for specific Americans’ communications, a procedure known as the “backdoor search loophole.” If the FBI wants to wants to deliberately seek out an American’s communications, it must usually start an investigation, build suspicion, demonstrate probable cause, and get a warrant approved by a judge. But with Section 702 the FBI has the ability to engage in a “backwards investigative process,” whereby it deliberately seeks out a particular American’s communications with a backdoor search of Section 702 data and uses that to develop suspicion and start an investigation. According to then-Privacy and Civil Liberties Oversight Board Chairman David Medine, even when “the FBI has absolutely no suspicion of wrongdoing … they’re just sort of entitled to poke around [in Americans’ communications obtained via Section 702] and see if something is going on.” The FBI’s own Section 702 Minimization Guidelines state that it is an “encouraged practice” for FBI personnel to search FISA data “in making an initial decision to open an assessment” of domestic criminal activity. And the FBI could also use keyword searches to seek out info on minor domestic crimes, or target groups ranging from the Tea Party on the right to Black Lives Matter on the left. Unlike a national-security adviser request for unmasking, which is based in a desire to understand foreign intelligence, the motive here is deliberately focusing on Americans and circumventing due-process requirements for shortcuts in domestic criminal investigations.
And once the FBI has this information, it is virtually unrestricted in its access to and use of it. Only cleared personnel can initially read Americans’ communications incidentally collected under Section 702, but once they determine that a communication may contain any evidence of any federal crime, it can be freely accessed and used by others. There doesn’t need to be a connection to foreign intelligence, terrorism, or national security. It doesn’t even need to be a serious or violent crime. Any federal crime from marijuana use to tax evasion is free for FBI use in building investigations and prosecution. All this occurs without law enforcement ever demonstrating suspicion of wrongdoing to a court or receiving independent approval to monitor communications.
If we’re going to have a serious debate about overbroad surveillance and how to respond, we need to start with Section 702. Fortunately there are a variety of measures that we can take that would protect Americans’ constitutional rights without compromising the foreign intelligence and national-security value Section 702 provides, including closing the backdoor search loophole, limiting the use of warrantless Section 702 surveillance data to national-security and foreign-intelligence purposes—not domestic law enforcement—and limiting the scope of targets to foreign agents, suspected terrorists, and serious foreign intelligence threats so Americans speaking with innocent foreigners are not needlessly caught up in a mass-surveillance program.
There will be strong, bipartisan support in Congress for such reforms. President Trump has said that the incidental collection of his team communications “is surveillance.” Hopefully when the time for reform comes, he will stand by that claim.
Jake Laperruque is senior counsel at the Constitution Project, where he works on issues of government surveillance, national security, and defending privacy rights in the digital age. Prior to joining TCP, Jake was a fellow at New America’s Open Technology Institute and at the Center for Democracy and Technology. He previously served as a law clerk on the Senate Judiciary Subcommittee on Privacy, Technology, and the Law. He is a graduate of Washington University in St. Louis and Harvard Law School.