In a previous blog (0), I pointed out that the renewal of Section 702 of the Foreign Intelligence Surveillance Act is by no means certain. Section 702 provides authority for the US government to target foreign individuals to obtain intelligence to defend American security. Specifically, Section 702 allows the attorney general and the director of National Intelligence to direct warrantless surveillance of non-US persons (1) “reasonably believed to be outside US borders.” Conversely, it forbids collecting information from targets inside the US.
Under Section 702 mandates, the government can compel internet service providers and telephone companies to aid in the collection of information from targeted individuals. The government can gather additional information through so-called “upstream collection,” which targets the underlying backbone (routers and cables) of the internet.
As explained in the previous blog, several issues are highlighted by opponents of Section 702 renewal — at least in its present form. First, there are deep concerns about the inadvertent or incidental collection of data on US citizens in the search for foreign intelligence agents. Opponents argue that rules limiting the use of this information are too loose and cloaked in secrecy. Second, they have challenged the (2) “relatively free rein” that domestic law enforcement agencies have obtained to “trawl through data bases to initiate investigations.” All these activities are subject to the oversight of the often-classified jurisdiction of the Foreign Intelligence Surveillance Court.
Enter the Flynn affair, in which Lt. Gen. Michael Flynn, President Trump’s initial choice as national security adviser, was forced to resign (3) after his conversations with the Russian ambassador were monitored by US intelligence officials, and word of these conversations was leaked to the US press. (Officially, it should be added, the White House stated it was Flynn’s initial denial of crucial details of the conversation that caused the president to lose confidence in him.)
So what is the relevance here to Section 702? The link is not direct, but it will certainly play a role in the upcoming struggle over renewal. Because there has been a lot of misinformation about this affair, let’s establish some relevant (and irrelevant) facts. There was nothing untoward or unusual about US intelligence surveillance of phone calls to and from the Russian ambassador. It happens all the time — and no doubt Flynn knew this when he made or answered the calls. Despite this fact, several sources, including The Wall Street Journal, claimed that US intelligence acts do not permit (4) the National Security Agency (NSA) or FBI to “listen to the communications of Americans who may be caught in . . . eavesdropping.” Further, Flynn broke no laws in participating in the call — the ancient 18th century Logan Act that forbids diplomatic activity by private US citizens is no longer relevant, according to almost all legal experts.
But while Flynn can be exonerated for his phone calls (although not for lying), and the government can be for collecting the information, a criminal — and certainly civil rights — violation did occur with the public leaks of the details of his conversations with the foreign ambassador from someone (or some persons) in the intelligence community. As Timothy Edgar has pointed out (5): “These leaks are criminal. . . . [T]he Espionage Act makes intentional disclosure of classified ‘communications intelligence activities’ a felony if such disclosure is made in a ‘manner prejudicial to the safety or interest of the United States.’”
And Edgar further charges — in an argument that will no doubt reverberate throughout the Section 702 debate (6): “It is an abuse of surveillance for national security officials to leverage legitimate foreign intelligence collection to reveal public information in order to damage individual they do not believe should serve.”
Opponents of Section 702 renewal, at least as presently written, have been quick to connect the dots. Writing in The Register (a science news and opinion blog), Kieren McCarthy linked (7) the recent Trump “scandals” to the larger underlying issues of mass surveillance and the renewal of Section 702. Although he still predicted ultimate congressional renewal, he also bluntly stated (8): “The fact remains that through careful and wildly liberal interpretations . . . the NSA, the FBI and others have managed to subvert the very clear intent of the law and build a vast database of information on US citizens that should be illegal.”
A joint effort by major high-tech trade associations and individual companies (the Internet Association, the Computer and Communications Industry Association, and the Information Technology Industry Council among others) also has weighed in, urging Congress to legislate (9) “meaningful safeguards for internet users’ privacy and civil liberties, measures to ensure transparency and accountability, and a commitment to continued Congressional oversight.”
As stated previously, much can happen to impact the ultimate congressional decision on Section 702. But for the moment the Flynn imbroglio has raised the bar for renewal and increased the prospects that Congress will demand greater transparency from the intelligence agencies regarding the extent of incidental domestic surveillance and the rationale for “trawling” through databases to initiate investigations.