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By Eric Lieberman
A large group of Republican senators introduced legislation Tuesday to make a surveillance statute that would permanently allow the government to spy on people’s online communication.
The bill would indefinitely mandate Section 702 (as well as the entirety of Title VII) of the Foreign Intelligence Surveillance Act (FISA), which is set to expire at the end of 2017. The section gives federal intelligence agencies the authority to collect data on foreigners. However, due to the broad powers enumerated in the law and the inherent processes of surveillance, the electronic communications of law-abiding Americans are often picked up as well.
Spearheaded by Sen. Tom Cotton of Arkansas, the legislation was introduced and supported by several other senators, including: Richard Burr of North Carolina, James Risch of Idaho, Marco Rubio of Florida, John Cornyn of Texas, Lindsey Graham of South Carolina, John Thune of South Dakota, James Lankford of Oklahoma, Roy Blunt of Missouri, Susan Collins of Maine, Pat Roberts of Kansas, David Perdue of Georgia, Roy Blunt of Missouri, and John McCain of Arizona.
All of these senators are Republicans, which at least partially contrasts other members of the political party’s concerns of the intelligence powers, particularly potential collateral damage. (RELATED: Will The GOP Remake Surveillance Laws After Trump Leaks?)
Some Republicans have expressed skepticism over reauthorizing Section 702 of FISA because they worry that such a loose interpretation, or a careless implementation, of the law could be a major contributing factor to the publicization of sensitive information pertaining to the Trump administration. They think that the process is either too haphazard or too susceptible to abuse, even surmising that it may have led to the unmasking of former National Security Adviser Mike Flynn.
Republican Rep. Tom Rooney of Florida, for example, pressed former FBI Director James Comey and NSA Director Mike Rogers on this issue during the U.S. House Permanent Select Committee on Intelligence (HPSCI) hearing in March.
“But it’s really gonna hurt the people on this committee and you all on the intelligence community when we try to retain this tool [surveillance programs permitted through Sec. 702] this year and try to convince some of our colleagues that this is really important for national security, when somebody in the intelligence community says, ‘You know what, the hell with it, I’m going to release this person’s name because I’m going to get something out of it.’ We’re all going to be hurt by that,” Rooney, who chairs the NSA and cybersecurity subcommittee, told Rogers.
President Donald Trump himself has levied a number of accusations against intelligence agencies, like the FBI and the CIA, for essentially trying to sabotage his presidency through leaks of highly classified information. More recently, a NSA contractor was arrested for leaking sensitive documents to a new publication. (RELATED: How The Intercept Accidentally ‘Outed’ The NSA Leaker)
The NSA announced in April that it has stopped scooping communications American citizens have with foreign surveillance targets.
By introducing the legislation to extend portions of FISA, the Republican senators appear less concerned with leaks within the Trump administration, and more so with equipping the country’s intelligence agencies with the more surveillance powers and leeway.
“This program has provided our national-security agencies vital intelligence that has saved American lives and provided insights into some of the hardest intelligence targets,” Cotton said in a statement. “Section 702 also includes extensive privacy protections for American citizens. We can’t handcuff our national-security officials when they’re fighting against such a vicious enemy.”
However, some experts claim that the purported privacy protections may not be as comprehensive or enforceable as Cotton, Rogers and others have claimed.
Stewart Baker, the first assistant secretary for policy at the U.S. Department of Homeland Security under President George W. Bush, told The Daily Caller News Foundation that it’s difficult to permit Section 702 without also permitting the collection of Americans’ communications. He gave a telling example of a hypothetical email address like “Mahmoud@gmail.com” which doesn’t clearly reveal if Mahmoud, who may be unknowingly conversing with nefarious Yemeni nationals, is an American or not.
Baker asserts that, if the NSA was sure that Mahmoud was an American, it would usually “mask” his email address with some label like “USPerson No. 1 email address.”
“Section 702 is an effective program that can’t really work if we try to exclude American’s communications,” Baker continued, adding that the “‘unmasking’ provisions could be tightened up” and “they were effectively loosened as part of the sharing imperative arising from 9/11.”
Baker said that America and its intelligence agencies “could do a better job of restricting the authority to unmask in contexts where abuse is a particular concern (e.g., where there’s a nexus to partisan political activity).”
During a Senate Intelligence Committee hearing Wednesday, Cotton asked Rogers if Section 702 allows him “to collect information on U.S. citizens.”
“As intentionally targeted individuals? No,” Rogers said, clarifying that if it does occur, it’s not on purpose. Cotton continues asking Rogers what circumstances permit certain instances of collection, apparently trying to prove that there are more than sufficient restrictions over the spying powers.
“Does it allow you to collect information on foreigners who are on U.S. soil?” Cotton asked.
“No, 702 is outside of the United States,” Rogers replied.
“So you can collect information on an ISIS terrorist in Syria, and he comes to the United States and you can no longer collect information on his cell phone or email address,” Cotton responded.
“We are a foreign intelligence organization, we coordinate with the FBI. Yes sir, we don’t do internal, domestic collection — broadly,” Rogers explained.
Deputy Attorney General Rod Rosenstein clarified that once foreigners come into the U.S., “different rules apply” and officials can use other parts of the law, not Section 702, to conduct surveillance on potential evildoers.
Soon after Rosenstein’s response, Cotton cites a New York Times op-ed published Wednesday by Thomas Bossert, the homeland security and counterterrorism adviser to Trump, which says that the Trump administration supports his legislation to make Section 702 permanent “without condition.”
To conclude his allotted time for the hearing, Cotton asks Rogers, Rosenstein, Director of National Intelligence Daniel Coats, FBI Director Andrew McCabe if they also supported the bill, specifically suggesting they rate their enthusiasm on a scale of 1 to 10.
Defying the parameters set by Cotton, Rogers and McCabe confirmed they would rank their appreciation of the bill at “11,” and Coats scored his approval at “100.” Rosenstein simply stated that the bill was “very important.”
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