It’s the National Security Agency and the Federal Bureau of Investigation’s top legislative priority: a wellspring of surveillance authority that lets them gobble up emails, texts, browser histories, and chats on an industrial scale. Under normal circumstances, it would breeze through Capitol Hill. But that was before Donald Trump started tweeting baselessly about Barack Obama wiretapping him.
Now, the politics of reauthorizing an obscure bit of surveillance law known as Section 702 are scrambled, creating what reform advocates—who consider the provision unconstitutional—believe to be some unexpected momentum in their favor.
As a key Senate committee gathers NSA and FBI officials on Wednesday to plead the provision’s case, privacy advocates are watching unfold their rough equivalent of the Iran-Iraq War—a battle in which both sides are awful. On one side are normally pro-surveillance Republicans carrying the water of their president in his attempt to distract from numerous probes into his alleged ties to the Kremlin. On the other are deep state advocates of wide-ranging surveillance repeatedly exposed as constitutionally abusive.
“Privacy issues always have brought together strange bedfellows. This may be the strangest,” said Amie Stepanovich, an attorney with the digital-rights group Access.
Surveillance reform advocates, who tend to lose more battles against the NSA than they win, feel a wind at their backs. Congressional sources say that they think a straight re-approval of the expiring Section 702 is a nonstarter.
While no reform bill has yet been drafted, they believe they can curtail what they consider the abuses of the widespread surveillance powers while retaining necessary counterterrorism and counterintelligence authorities. Phase one will begin on Wednesday in the Senate, with reformers pushing the intelligence agencies to disclose warts-and-all data about 702, like how many millions of Americans are swept up in its dragnets. Senators have been trying to compel the intelligence agencies to disclose that figure for more than five years.
Section 702, enacted in 2008, is best known as the legal underpinnings of the NSA’s PRISM program, which takes digital communications data from major tech companies like Facebook and Google; and its “Upstream” collections method, which siphons communications in transit across the internet backbone. It permits the NSA to capture Americans’ international communications in broad dragnets, providing that the target of any particular collection is a person, account or other so-called selector reasonably believed to be a non-American overseas.
Once the NSA vacuums up this data, its ostensible rules to limit analysts’ access to the data troves have substantial exceptions. For years, the FBI did not even have to log when it rifled through the NSA’s databases. More broadly, the NSA does not need a warrant to search for Americans’ communications in the 702 troves, as revealed by whistleblower Edward Snowden in a provision that Ron Wyden, a senator on the intelligence committee, dubbed the “backdoor search loophole.”
None of this vast surveillance requires a warrant. The attorney general and the director of national intelligence instead merely certify to the secret surveillance panel known as the FISA Court that their collection methods work the way they’ve told the court they work. As it turns out, on several occasions, including in 2011 and most recently earlier this year, the court belatedly learned that the NSA surpassed judicially-imposed limits.
Yet privacy advocates, including Wyden, concede that unlike the now-curbed bulk collection of Americans’ phone records, surveillance under Section 702 has genuine utility in preventing terror attacks overseas. In 2014, the Privacy and Civil Liberties Oversight Board, a government watchdog, found that notwithstanding its problematic elements, 702 makes “a substantial contribution to the government’s efforts to learn about the membership, goals, and activities of international terrorist organizations, and to prevent acts of terrorism from coming to fruition.”
Expect that to be the central point made by a bevy of intelligence and law-enforcement officials on Wednesday in the Senate intelligence committee, including Director of National Intelligence Dan Coats; NSA Director Mike Rogers; acting FBI chief Andrew McCabe; and embattled Deputy Attorney General Rod Rosenstein.
Should Congress do nothing, then on Dec. 31, Section 702 will disappear. Its legislative architects in 2008 required a renewal of the surveillance authorities every five years. In 2012, its re-up was a foregone conclusion. No longer.
In March, Trump, who has blamed the intelligence agencies for a “witch hunt” about his associates’ dealings with Russia, tweeted a debunked series of accusations that his predecessor illegally surveilled him. Within days, a key congressional ally, House intelligence committee chairman, quickly thinking out loud that it would be “very problematic” to reauthorize 702 while intelligence agencies were leaking against Trump.
“We have to verify, in fact, that all of the tools that are in place, that we oversee, are being used ethically, responsibly and by the law,” Devin Nunes said.
Experienced intelligence observers considered Nunes’ position a virtual non-sequitur. The normal FISA process authorizes surveillance on agents of a foreign power on U.S. soil—like, for instance, Russian Ambassador Sergei Kislyak, who spoke throughout 2016 with Trump aides Michael Flynn, Jeff Sessions, and Jared Kushner. Section 702 and the “unmasking” process that Nunes considered so disturbing—that is, before he was exposed as laundering information on behalf of the White House—were two ships passing in the night, something the House intelligence committee chairman might be expected to know.
But in two hearings, in March and May, House intelligence committee Republicans put forward an unexpected line: It sure would be a shame if these anti-Trump leaks prevented the Republican Congress from reauthorizing Section 702. The surveillance authority may not have been either how the NSA and FBI came to learn of Trump-Russia conversations, nor how the identities of those interlocutors got “unmasked,” but the GOP nevertheless had leverage in the form of an authority deeply cherished by both agencies.
Suddenly, House intelligence committee Republicans were ardent civil libertarians. Today it’s Flynn under surveillance—again, as Rogers testified, “collection on targets in the United States has nothing to do with 702”—lamented Trey Gowdy, but tomorrow, “It could be you. It could be me.” (Meanwhile, the House intelligence panel’s webpage still contains a pro-702 vertical, a vestige of when its enemy was surveillance reformers, not whomever Trump is presently mad at.)
To civil libertarians, whomever wants to help circumscribe Section 702 is welcome, regardless of their motives. “People who work on these issues have long known what it feels like to work alongside people they may vehemently oppose in other contexts, so this is kind of a continuation of what the field is,” Stepanovich said. Both surveillance reformers and advocates tend to come across party lines, which is how the liberal Wyden counts the conservatives Rand Paul and Jim Sensenbrenner as allies.
They’re also aided by a coalition of U.S. tech giants—including some that are part of PRISM—like Facebook and Google. Tech-sector support was also critical to the 2014-15 push to roll back bulk NSA domestic phone data collection.
Congressional sources point out that reformers have a lot of work to do—not least of which is preparing a bill that can pass a fractious congress and keep together a coalition that seems to shift with Trump’s Twitter usage. They’re preparing for what they expect will be an eleventh-hour maneuver in December by Senate Majority Leader Mitch McConnell to push through a straight 702 reauthorization, something that they think they can withstand, since a similar McConnell gambit in 2015 spectacularly failed. As the surveillance debate begins in earnest this summer, you can almost hear them fav’ing Trump tweets.
“Ignoring the fact that some reform is inevitable is ignoring reality,” Stepanovich said, “and I wouldn’t have said that earlier this year.”