A flurry of leaks, President Donald Trump’s unproven wiretapping allegations and WikiLeaks’ disclosure of CIA hacking tools are breathing new life into civil libertarians’ hopes of reining in the government’s spying powers when they come due for congressional renewal this year.
Critics of laws allowing federal agencies to eavesdrop on digital communications had faced daunting odds in their push to water down those authorities, which the Trump administration wants to keep as a tool against terrorists.
But in the past two weeks, lawmakers across the ideological spectrum — and the White House itself — have raised concerns about intelligence agencies intercepting phone calls, allegedly snooping on Trump Tower and stockpiling an arsenal of hacking tools to infiltrate iPhones and smart televisions.
The episodes have brought unexpected attention to the government’s arcane yet powerful surveillance programs, some of which are up for renewal at the end of the year.
Surveillance critics — a coalition of libertarian-leaning Republicans and privacy-minded Democrats — want to use the deadline as leverage to push for revisions. But they have struggled to raise awareness of their worries, which are complex and highly technical.
Now, though, said Sen. Ron Wyden (D-Ore.), a leader of the revision coalition, “this has generated interest in the question of how this works.”
“I have many people coming up and asking, ‘Why is this such a big deal?’” Wyden added. “And it’s important now.”
Lawmakers who hope to maintain the status quo say they fear that the latest revelations will spur people to overreact based on false, simplistic ideas about the government’s eavesdropping and surveillance powers.
“I think people have a misguided understanding of these laws,” Senate Intelligence Chairman Richard Burr (R-N.C.) told POLITICO. “The truth is that there’s no unilateral hacking of Americans.”
The White House sides with Burr in wanting to maintain the government’s eavesdropping powers, despite Trump’s outrage at the idea that he or his inner circle could fall under the scrutiny of the federal intelligence apparatus. But the more Trump stirs up the issue, the more fodder he hands the civil libertarians who want to insert more government restrictions into laws like the Foreign Intelligence Surveillance Act.
“To the extent it raises awareness about FISA and highlights the discussion, hopefully that will help our efforts to reform FISA and protect the privacy of Americans,” said Rep. Jared Polis (D-Colo.), a lawmaker focused on digital privacy.
Even before the string of spying stories was fully formed, surveillance critics started seizing on them last week at a House hearing on a key surveillance provision that sunsets at the end of this year, FISA Section 702. The section authorizes programs that sift through vast quantities of digital traffic, including Web browsing histories, email and online chats.
During the hearing, members of the libertarian House Freedom Caucus pointed to the leak of former national security adviser Michael Flynn’s call with a Russian diplomat as a “real life” example of an American whose private information was abused under the expansive overseas spying programs.
U.S. intelligence agencies apparently picked up Flynn’s call as part of routine surveillance on Russian officials, and the contents leaked despite laws that normally mask the identities of Americans swept up by eavesdropping of foreign targets. Flynn resigned after the transcript showed he had misled people such as Vice President Mike Pence about his conversations with Russian Ambassador Sergey Kislyak.
Trump followed that flap by launching his evidence-free tweetstorm accusing former President Barack Obama of personally ordering a wiretap of Trump Tower.
While digital surveillance experts said such an order would be preposterous and likely illegal, they noted several sweeping foreign surveillance programs — including Section 702 efforts — that could conceivably pick up the digital chatter in Trump Tower. For example, if two Trump campaign officials were talking over a Trump Tower network to, from or about a Moscow official under surveillance, that conversation might get flagged as relevant to foreign intelligence gathering operations.
“If it happened,” said Republican Sen. Rand Paul, the Kentucky lawmaker who led the last charge to overhaul the country’s surveillance laws in 2015, “in all likelihood it happened through the backdoor of 702.”
In essence, Trump heightened the scrutiny on this relatively obscure FISA provision, which authorizes several notable spying programs, including Upstream and PRISM.
PRISM allows the NSA to collect people’s browsing histories, email contents and digital chats from major tech firms like Google, Facebook and Apple. Upstream lets the spy agency lift Web browsing information off internet cables. Both were exposed through documents leaked by former NSA contractor Edward Snowden.
These programs are supposed to filter out obviously domestic information up front and only grab international chatter that matches an exhaustive list of selectors — such as email addresses and screen names — linked to nearly 100,000 targets. Still, surveillance specialists estimate that millions of Americans — maybe even tens of millions — make it into the NSA’s databases. While the law requires Americans’ privacy to be protected if they show up in a subsequent search, those protections can go away if the data is determined to contain some foreign intelligence value.
Critics like Paul say these programs are too indiscriminate and worry that the privacy-protecting procedures are trivial, leaving the door wide open to “unmasking” Americans.
“This is a big deal as far as I’m concerned,” Paul told POLITICO.
Rep. Ted Lieu (D-Calif.), one of the few members of Congress with a computer science degree, argued that the program allows warrantless searches of Americans whose information incidentally ends up in the NSA’s hands.
“Then that information can be used to prosecute American citizens in court,” he told POLITICO. “That is flat-out illegal and unconstitutional.”
Into this intensifying debate, WikiLeaks dropped a bomb. This week, the anti-secrecy group released a trove of documents revealing the CIA’s hacking tools for transforming computers, Apple and Android phones and even internet-connected televisions into surveillance devices.
The disclosure — which former officials and experts say appears legitimate — has caused even a hawkish Republican like Senate Armed Services Chairman John McCain to predict Congress will have to re-examine its surveillance oversight.
“It’s going to cause a real fundamental evaluation of everything we do, including FISA,” the Arizona lawmaker said.
Taken together, revision advocates believe the events “give considerable wind at the backs of those who want to reform Section 702 of FISA,” said Lieu, who noted that a bipartisan group of House Judiciary Committee staffers has already met to discuss 702 alterations.
But the Senate has yet to publicly delve into the issue. Senate Intelligence Committee ranking member Mark Warner (D-Va.) told POLITICO that his panel would get private briefings “shortly” on the issue.
Burr is pushing for a “clean” reauthorization, with no changes. He conceded that critics will be deploying recent events “to further advance their theory,” but accused them of misleading the public about a program that most lawmakers agree has value for tracking terrorists and foreign threats.
“If we inadvertently hear an American, we automatically have a process that we follow,” he added, referencing the privacy-protecting procedures. “There’s no generalized ability for any entity to listen in on the American people.”
A White House spokesperson told POLITICO that the administration sides with Burr in supporting a straight-up reauthorization without alterations.
By: Cory Bennett and Martin Matishak