Understanding the FISA Secret Surveillance Program: Why America Should Spy on Americans, and Why It Shouldn’t

If I were a betting man, I’d bet most people will disapprove with about half the points in this piece and approve of about half. And political affiliation won’t matter.

But before we get to bipartisanship, the president is bringing deep shame to America, and anyone who defends or excuses his words yesterday is complicit in his shame and ancient racism.

Now, back to bipartisanship!

Yesterday the House of Representatives easily passed the renewal of what’s known as Section 702 of the Foreign Intelligence Surveillance Act (FISA). The new bill was marketed as restricting the sweeping surveillance powers granted by the current bill, which Congress first approved in 2008, but in reality gives the government the option to expand those powers. A competing and more sensible proposal put forth by a bipartisan group of 40 lawmakers, and supported by civil liberties groups, specifically included a new privacy protection in the form of a warrant requirement…but obviously that proposal was defeated.

Among the representatives who voted for the new legislation were 55 Democrats. If 26 had voted against this bill, they would have defeated it. The “yes” votes included Nancy Pelosi and Adam Schiff.

To make things weirder for those who think this is a partisan matter, the new bill was sponsored by, weirdly enough, Rep. Devin Nunes, who made headlines for screaming about the abuses of the FISA act last March, when it applied to possible surveillance of members of the Trump campaign, which he found inconvenient. The legislation was backed by both the White House and the intelligence community—what MAGA nutjobs know as the “deep state”—that Trump accuses of using the law to unfairly monitor him and his campaign.

Yesterday morning President Trump himself compressed Nunes’s nine-month hypocritical shift into about two hours. First he tweeted an attack on the bill, prompted by a segment he was watching on Fox and Friends:

Then, when his staff informed him that his own administration supported the bill (Sarah Sanders issued a statement saying so just last night), Mr. Trump backtracked:

A couple things here. First, it’s worrisome that it took two hours for his staff either to reach him or to convince him why he should support a bill he supports. Trump’s first uninformed tweet briefly threw D.C. into chaos and threatened to derail the vote. Sadly, this is normal and hardly worth noting (a fact that itself should be news, and on and on and on).

More importantly, Mr. Trump clearly still doesn’t understand what FISA is or does, even though he had a crash course in it nine months ago when he stated, falsely, that President Obama tapped his phones at Trump Tower during the election.

On one hand, if you’re not in government it’s pretty unlikely you’d have a complete understanding of what Section 702 actually does. On the other hand, Mr. Trump runs the government.

Bottom line: We truly do need Section 702 and government surveillance, but we also need to know enough to know exactly what not to stand for. Surveillance is one of those policies it’s easy to get angry about without even knowing you don’t know what you’re angry about. Here’s a hopefully helpful breakdown of FISA and why the new bill, far from restricting government power, expands that power to be even more problematic for everyone, regardless of your political affiliation.

What FISA does

There are things to appreciate about the bill, but several things also raise the specter of Big Brother.

Congress passed Section 702 in 2008 in the interest of preventing terrorist attacks in the U.S. and thwarting other threats to national security. The bill nominally gives the government (most specifically the National Security Agency and FBI) broad powers to surveil the communications of foreign actors. It doesn’t grant any authority to surveil U.S citizens unless the FISA court determines that a citizen is acting on behalf of a foreign power.

Important: Judges who sit on FISA courts aren’t nominated by the President. This is a fairly smart way to check potential abuse of this law, which, remember, empowers the executive branch. FISA judges are instead chosen by the Chief Justice of the Supreme Court. So if you think there was an FBI-CIA-Obama-Clinton-deep state conspiracy in which they illegally surveilled the Trump campaign, there wasn’t. The FISA court is independent and would stand in the way of any illegal or unwarranted surveillance.

True, the FISA court grants almost all applications, but if you track that percentage over time you’ll see it’s because the experience the intelligence agencies have developed in anticipating what the court will grant and what it will reject.

The program has in one way proved astronomically successful. FISA surveillance has contributed to thwarting numerous terrorist plots on U.S. soil, most notably including an attempted bombing of the New York City subway. For further proof of the bill’s contributions to counterterrorism, we haven’t experienced a transnational terrorist attack since Sept. 11. The terrorist attacks we’ve seen have been limited to “lone wolves” or very small cells, which are even with FISA’s sweeping powers much harder, and sometimes impossible, to sniff out, track, and bust. Considering the number of ways available to foreign terrorists, say from ISIS or al Qaeda, to enter, organize, and communicate within a free country that has the geographical size and population of the U.S., this track record is pretty f’ing amazing. There’s no doubt Section 702 has contributed to keeping us safe.

At the same time, though, imagine how powerful our intelligence agencies would have to be to thwart 16 years’ worth of transnational terrorist plots in a free country the size and population of the U.S. There’s no doubt this law granted the government indescribably sweeping powers to track communications both outside and inside the country. And as terrorists increasingly shift tactics from major plots to inspiring individuals, the demands of an effective surveillance program get stretched. In order to combat this broader, more difficult threat, do we increase our surveillance powers?

We’ve become used to balancing this issue: the tradeoffs we’re willing to make between liberty and safety. How much are we willing to give up in order to have a safe country? And have we given up too much already?

To answer this question honestly, we first have to understand what exactly we’re giving up.

First, let’s look at the specific ways Section 702 has proved problematic. It’s important to note there are basically two types of surveillance covered under the bill. (You can look up the full verbiage here.) The first part is the stuff I mentioned above: preventing attacks. This includes “sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power.” It also covers espionage by a foreign power.

The second part covers “conduct of foreign affairs.” This is a super broad phrase that allows us to monitor the communications of and about not only hostile actors, but people such as diplomats, other attaches, and even businesspeople. Probably the most famous example of this clause was the Obama administration’s tapping of Angela Merkel’s cellphone. Germany opened a probe into the tap, but dropped it a couple years later, partly on the basis that Germany claimed the NSA wouldn’t give them enough evidence to pursue it seriously. (Shocker.)

Edward Snowden’s infamous leaks about the program in 2013, augmented since then by a steady stream) of disclosures, revealed the NSA used Section 702 to collect an uncountable amount of communications involving U.S. persons. For some numbers, the NSA has said that in recent years it has monitored consistently about 90,000 targets annually.

Then there’s the collection of what’s called “abouts communications.” This clause allowed intelligence agencies to gather and search not only communications sent between targets of a FISA warrant (non-U.S. persons), but also communications that contain information “about” a target, facility, place, etc, that is subject to the warrant. This opens up the collection of communications between two people who aren’t even targets named in the warrant. It also increases the likelihood we collect communications between otherwise innocent U.S. citizens.

The practice of “abouts” collection got shut down after Congressional hearings in spring 2016, because, frankly, it’s pretty insane. That doesn’t stop the collection on U.S. citizens, though. After all, we know there were FISA warrants on Paul Manafort and Carter Page. So I give you: Incidental collection.

“Incidental” Collection

That second part of the Section 702 definition gets really broad. The authority it implies opens many paths for many law enforcement agencies to collect the communications not just of foreign nationals, as it says it was intended, but also of U.S. citizens.

For a familiar concrete example, this explains how U.S. intelligence agencies would have been able to surveil or monitor communications between members of the Trump campaign and Russian agents, even without executing any warrants or wiretaps on campaign officials. After all, if anyone communicates with a Russian under surveillance, that communication is, obviously, collected. That means that U.S. citizens not named as a target of a FISA warrant, but who are communicating about matters of national security with a Russian target, can have those communications swept up. It’s called “incidental collection,” and you can imagine why it’s collected.

Those U.S. citizens, though, have their names “masked.” Only if certain conditions warrant would an intelligence official ask for those names to be unmasked. I’m not going to rehash the completely made-up unmasking “scandal” from about nine months ago, but notice no one talks about it anymore, because it was a stupid distraction and got dropped immediately after the conversation moved on.

It’s safe to assume that all Russian diplomats and probably a great deal of other agents are under government surveillance. (The inverse, of course, is true in Russia.) People who communicate with those Russians get swept up, and if those communications are about matters pertaining to national security, guess what? That’s fair game. Mike Flynn, of course, was well aware of this practice, and probably tried to be really careful in his communications with the Russian Ambassador. The fact he got caught lying doesn’t necessarily mean he’s stupid or made a huge mistake; it more likely indicates we’ve got a whole lot of evidence about the Trump folks that neither the public nor the Trump folks knows about.

Are you a MAGA, and do you cry foul? Do you also support strict counterterrorism and drug enforcement? You can’t have both.

Imagine, for instance, a Muslim-American communicating with an ISIS commander, receiving directions on how to build a bomb, whom to connect with in the U.S., how and when to carry out an attack, etc. If the ISIS guy was tapped, and we know the person he’s communicating with, and we know this is a serious plot, shouldn’t that communication be used to thwart the plot and arrest the U.S. citizens involved?

Of course it should. But sadly, my MAGA friend, a crime is a crime is a crime. If the communications aren’t relevant to national security or other crime, they get thrown out. Don’t count. So you’ve got nothing to worry about. Right?

(I’ll also point out that any evidence collected from the Trump campaign would have been considered a threat to national security, and any FISA on any member of the Trump campaign would have to have been considered by a FISA court to be acting on behalf a foreign power, i.e., likely a criminal, so there’s that.)

But back to the part we probably agree on—the problematic phrase “foreign intelligence information” is so sweeping that it allows the government to monitor the emails, calls, texts, Skypes, etc., of U.S. citizens who communicate with anyone abroad about a wide array of matters. This could conceivably include business figures, academics, lawyers, journalists, politicians, etc.

I’d argue, though, that if you’re not breaking the law you probably shouldn’t be worried. Though there is reason to worry a little bit.

The Reason I Worry a Little Bit

As you can imagine, this is all a shitload of data. How is it collected and used?

Well, first you’ve got to have access to the flow of information, which means you have to go through the people in charge of the information (a few years ago the NSA had actually hacked Google, but they got caught). The people who control the information are the service providers such as Facebook, Google, etc. They’re in America, but since the NSA only has dominion over foreign surveillance the FBI compels those companies to give them the data. The companies are legally obligated to comply, because after all Section 702 is the law, or they could face charges.

This data, though, isn’t only the targeted communications or communicators themselves, but includes certain search terms and other markers. This means the U.S. government can and does “incidentally” collect a massive amount of data from Americans, including emails, video, texts, photos, Dropbox, social media content, etc. It can even include log-ins.

To scan this data, the government puts taps on all the underwater intercontinental cables that transmit internet traffic, which grants them access to about 80 percent of internet traffic…i.e., most of our shit. But only an infinitesimal amount of this data is relevant, so in order to identify the useful stuff the government has to be able to search the content of every communication that passes through those scanned cables.

This brings us to backdoor searches!

And parallel construction!

They both could really suck!

The NSA has to dump this data somewhere, where it can be stored and searched later. That’s a crazy amount of searchable data, so much of it that experts can’t even give an accurate estimate of the size. The NSA has it all, but it also shares that database with other agencies, such as the FBI, who can also search it. The FBI can search this database and collect evidence and other information about U.S. persons without needing a separate warrant to do so, a practice commonly referred to as “backdoor searches.” The short of it is that this allows law enforcement to build and prosecute criminal cases completely unrelated to national security.

Further, law enforcement doesn’t need to get a special court order to use this data as evidence in a trial involving national security. This makes sense, given everything above. But the FBI can use the data to pursue and prosecute a lot of other crimes, too, which are typically pretty big crimes such as violent offenses, theft of intellectual property, human trafficking, fraud, sexual crimes against children, etc.

Though there are limits to what law enforcement can pursue using searches of this database, the law is still open to abuse, and these could still be construed as warrantless searches. Critics say it violates the Fourth Amendment of the Constitution. It’s not exactly clear to me where this falls, but I do think there’s a clear and very real possibility of abuse, and serious violations of privacy.

One type of abuse I find worrying is “parallel construction.” This is the technique of retroactively digging up admissible evidence based on a tip-off gleaned from 702 data. For instance, an FBI agent searching 702 data for Russian money laundering through U.S. persons discovers a drug shipment is coming into the U.S. at a certain port on one of three ships. She might call the port authority and tell them which ships to search, and they’d make up some excuse to search the three ships.

If they get the drug bust, they’ll say the search came from some type of probable cause, and won’t cite the tip they got from the FBI agent. This technique is called “parallel construction,” and you can imagine the abuses available to an unscrupulous law enforcement official. This is the main reason I’d worry about my information being searched: I might not be committing any crimes, and I might not know that the friends I communicate with are committing crimes or know criminals, etc. But say one of my friends is selling pot, and one of my emails tips the feds off to where and when that friend will be. Use of that information would in my eyes be a clear violation of privacy and of the Fourth Amendment. Right now, though, that is all technically legal.

Nunes et al say this new bill was designed to limit those powers. If it were, I’d be all for it. But it wasn’t.

What’s Wrong With This Bill

First, this bill makes disingenuous promises. One is that it reforms the warrant requirements for those FBI backdoor searches. But this isn’t very practical: The rule applies only to searches conducted at the “predicated criminal investigation” stage, which is the last stage in an investigation. The FBI could clearly just search 702 data in the beginning of an investigation without a warrant, then use those searches to open up other parallel lines of inquiry to skirt warrant requirements.

And guess what? The new bill, which again the GOP has marketed as restricting surveillance powers, opens up the possibility of reinstating “abouts collection,” and not only reinstating it, but taking the new step of actually codifying it as a formal practice. (The tactic was never formally categorized.) To be more specific, the bill basically says the government must now give Congress a 30-day heads-up before it restarts abouts collection. In other words, Congress has a 30-day review period to pass a bill that prohibits collection, otherwise it could start to back up.

Note that the bill got out of committee by votes strictly on partisan lines, where GOP reps edged out Democrats, and Congress is controlled by the GOP. This indicates the GOP is favorable to reinstating this type of collection, and should the Trump administration raise the possibility, the GOP-controlled Congress isn’t very likely to stop it.

My mind goes directly to immigration enforcement. The FBI could use any information it finds to make arrests, conduct raids, target individual families, etc. Think of all the communications out there exchanged with the expectation of privacy regarding someone’s immigration status.

“YAY!” say the MAGAs.

“Mueller!” say I.

One last thing: The thing I mentioned earlier about limiting the use of evidence for other “serious crimes” isn’t law. It’s just current policy, and the DOJ can change its policy whenever it wants. It doesn’t have to announce it, either. This means Trump could have DOJ authorize the FBI to use your 702 data to go after any crime, no matter how big or pertinent to national security, such as, oh, say, buying pot.

It’s pretty clear to me that no matter where you lie on the political spectrum, you ought to oppose this legislation. We sadly do need a surveillance state in this day and age, but its size and power need to be seriously and continually checked, by the government we elect, yes, but also by us, the people, who owe it to ourselves to ask and understand what’s going on.