Nearly four years after National Security Agency whistleblower Edward Snowden blew the lid off domestic spying, the vast surveillance programs cherished as the “crown jewels” of the U.S. intelligence establishment are about to spring back into public debate – and not just because of Donald Trump’s allegation that he’s been the subject of wiretaps.
The legal framework for some of the broadest U.S. surveillance programs, authorized for a five-year period in 2012, will expire Dec. 31 unless Congress reauthorizes it. Already, the debate about those programs has begun, with members of the Senate Intelligence Committee focused on finding an answer to a simple question: How many Americans have emails, text messages and telephone conversations picked up in the government’s electronic sweep?
Is it a few thousand? Or is it a lot higher?
“We need that number,” Sen. Ron Wyden, D-Ore., told Dan Coats, Trump’s nominee to serve as director of national intelligence, at a confirmation hearing Feb. 28. “We have sought it for years and years. More and more Americans are getting swept up in these searches.”
Wyden pressed Coats on whether he would nail down a number. Coats hedged.
More and more Americans are getting swept up in these searches. Sen. Ron Wyden, a Democrat from Oregon
“It has been extremely hard to come up with that number for various reasons which I don’t fully understand,” said Coats, a former member of the Intelligence Committee now weighing his nomination. “I will do my best to work to try to find out if we can get that number, but I need first to talk – find out about why we can’t get it.”
Trump’s allegation that President Barack Obama ordered his phones tapped last fall, a claim for which he has offered no evidence, has little to do with the coming debate. But it is an indication of the sensitivities surrounding surveillance practices that do not cleave easily along party lines.
While the issue is often cast as a balance of privacy vs. national security, many Republicans, especially those with libertarian streaks, are troubled by what they see as invasive practices. And many Democrats offer strong support of the intelligence community.
At a separate hearing before a House of Representatives committee, Rep. Jim Jordan, an Ohio Republican who earns a perfect score from the American Conservative Union, read incredulously a response he had gotten to his official query to the U.S. intelligence director in which he was told it would be “difficult if not impossible to calculate” the number of Americans whose communications are intercepted.
That seems like baloney to me. Rep. Jim Jordan, a conservative Republican from Ohio
“That seems like baloney to me,” Jordan said. “We’re talking about the greatest intelligence service on the planet. You’d think they would be able to know that, right?”
Rep. John Conyers, a Michigan Democrat far to Jordan’s political left, said, “The government can, and does, collect massive amounts of information about our citizens under this authority.”
At hearings, Snowden’s name hardly arises. But few doubt that his revelations in 2013 helped mold the current debate. Worldwide, Snowden is seen from sharply distinct angles – traitor and villain, or global celebrity for data privacy. From his exile in Moscow, where he fled after spilling the secrets, Snowden continues to cast a long shadow.
It was his disclosures that let Americans – and people around the world – learn of NSA programs like PRISM, Dishfire and XKeyscore, which, respectively, allowed for the monitoring of electronic data retrieved from nine large tech companies, grabbed 200 million text messages a day and saw nearly everything a targeted user did on the internet.
Leaders of allied nations like Germany and Brazil bristled when they learned from Snowden’s disclosures that their officials were among dozens of leaders tapped by the NSA.
Much of the bulk collection of data by the NSA was rolled back or halted in 2015 under the USA Freedom Act.
On Capitol Hill, Snowden’s name is sometimes uttered with revulsion mixed with recognition that his actions accelerated change.
“What he exposed, I’m glad that we learned about it. It allowed us to make reforms that were necessary,” said Rep. Eric Swalwell, a California Democrat who sits on the House Intelligence Committee. “But the way that he did it was so reckless. . . . He exposed information that put our troops at risk and hurt important relationships with our allies.”
Trump called Snowden a “terrible traitor” in a 2013 television interview and suggested he should be executed.
Digital rights activists credit Snowden with forcing major intelligence agencies to talk more openly about surveillance.
“What Snowden did was enable the debate and provide more disclosures by the intelligence community when it saw the debate move in a direction it didn’t like,” said Gregory T. Nojeim, senior counsel at the Center for Democracy & Technology, a Washington research group that advocates for an open and free internet.
Civil rights activists voice concern over what they describe as gaps in Section 702 of the Foreign Intelligence Surveillance Act, which provides the legal framework for the NSA to monitor non-U.S. persons without warrants.
As of 2015, the Office of the Director of National Intelligence reported that 94,368 foreigners or entities abroad were targets of U.S. surveillance for intelligence purposes. The NSA is presumed to vacuum up hundreds of millions of electronic communications a year from those foreign targets, including any they may have had with Americans.
“The impact is actually much greater than 94,000 because each of these individuals talks to potentially hundreds of people,” said Neema Singh Guliani, legislative counsel for the Washington office of the American Civil Liberties Union.
How many Americans have their communications monitored in so-called “incidental” collection remains a guess. In the House hearing last week, Rep. Louie Gohmert, a Texas Republican, pressed Elizabeth Goitein, an expert on surveillance at the Brennan Center for Justice at New York University Law School, for an estimate.
If you conservatively assume that even one out of 100 of every foreign target's communications was with an American that would still be millions of American communications. Elizabeth Goitein, Brennan Center for Justice, NYU Law School
“If you conservatively assume that even one out of 100 of every foreign target’s communications was with an American that would still be millions of American communications,” Goitein said.
Pressed further at another point, Goitein said: “I had said millions earlier, which I think is conservative. . . . Potentially tens of millions. I don’t know. I really hesitate to speculate.”
Foreign Intelligence Surveillance Act regulations require the NSA, CIA and FBI – all of which have access to the database of collected communications – to “minimize” information about U.S. citizens or green card holders when it is incidentally swept up.
But the databases are widely available – one report on how the FBI handles searches of the databases monitored use in 13 FBI field offices – and agents in those offices can query the databases even when they have no suspicion of wrongdoing, said David Medine, who until July 1 was chair of the Privacy and Civil Liberties Board, a bipartisan watchdog that seeks to ensure government compliance with privacy and civil liberties rules.
“They are just sort of entitled to poke around and see if something is going on,” Medine told a Senate panel in May.
Critics of Section 702 say that sort of “backdoor search” allows authorities to snoop on citizens without having to show probable cause and obtain constitutionally required warrants.
The reality is that they can collect information that has no connection to terrorism, national security or weapons of mass destruction. Neema Singh Guliani, legislative counsel, American Civil Liberties Union
“You have this authority, and the government says the goal is national security and to help us prevent terrorism. The reality is that they can collect information that has no connection to terrorism, national security or weapons of mass destruction,” Guliani said.
Defenders of Foreign Intelligence Surveillance Act surveillance said they hoped legislators reauthorized its use. They say evidence of abuse is minimal.
“Throughout my time at NSA, I routinely saw analysts self-report if they ran an improper query,” April Doss, a former assistant general counsel at the agency, wrote in her submitted testimony to the House Judiciary Committee on March 1.
Auditors review logs for signs of improper queries, Doss said in an interview, calling existing laws “robust and effective” and noting the oversight of three branches of government.
Doss and other supporters of the status quo make an unusual argument: Simply trying to satisfy legislators who want to know how many U.S. citizens turn up in the electronic sweeping would require the NSA to act intrusively, would divert analysts from hunting terrorists and would possibly even break the law by actively tracking the Americans they find, raising new privacy concerns.
“It would prompt intelligence analysts to look for communications that they would not otherwise see, communications that have no intelligence value,” Doss said.
For his part, Swalwell, the California legislator, said convincing the citizenry that surveillance was being done properly was vital to the health of the intelligence community.
“The more transparent we are about 702, the better,” he said. “When Americans understand how their government is protecting them, they’re more willing, I think, to go along with what’s necessary to keep us safe.”