Susan Rice, Michael Flynn, and the politics of surveillance

Rep. Trey Gowdy (R) of South Carolina leaned forward and addressed FBI director James Comey in a pointed manner. The congressman – a booster of the military, a former prosecutor, and reliable conservative – said he was concerned that the United States isn’t doing enough to protect the privacy of citizens inadvertently swept up in the government’s vast counterterrorism surveillance operations.

Voters allow the National Security Agency and the Central Intelligence Agency great powers to protect the nation. In return, they expect those agencies to safeguard the names of Americans incidentally collected in electronic espionage, Representative Gowdy told FBI chief Comey, who sat quietly in a congressional witness chair in front of him.

“And when that deal is broken, it jeopardizes American trust in the surveillance program,” Gowdy said in a House Select Committee on Intelligence hearing late last month.

Welcome to post-Michael Flynn Washington. In the wake of the Flynn controversy, in which the former national security adviser’s conversations with the Russian ambassador were exposed via news reports, some intelligence hawks are turning into advocates for more privacy for US citizens against the intrusive effects of intelligence collection.

This has long been an issue where the libertarian right and the progressive left have agreed on some aspects. Now publicity from the Flynn affair may expand that coalition.

“The issue of foreign intelligence surveillance is finally getting some public attention. It’s long needed public attention, but it’s flown under the radar,” says Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice.

Specifically at issue is Section 702 of the Foreign Intelligence Surveillance Act (FISA), which grants the director of national intelligence and the attorney general the ability to authorize warrantless surveillance of non-US citizens abroad.

This produces huge amounts of electronic material, and sometimes catches the emails and phone calls of US citizens who are communicating with the foreign targets of NSA snooping. This is called “incidental collection.”

It appears that Mr. Flynn was incidentally collected as he was speaking with Russia’s ambassador to the US, Sergey Kislyak, during the presidential transition period. (It’s also possible Flynn’s words were collected under another legal framework. Experts aren’t sure.)

Under the law, the NSA can keep these messages, but the identity of the US person has to be hidden, or “minimized.” At least 20 top officials can request that US names be revealed, or “unmasked,” if they deem it necessary to understand the intelligence in question.

On Wednesday, President Trump alleged that former national security adviser Susan Rice might have committed a crime by requesting the unmasking of names of Trump associates swept up in foreign surveillance. He offered no specific evidence why that might be the case.

In fact, unmasking happens often. In 2013 the NSA revealed the names of approximately 10,000 US persons, according to a 2014 report of the Privacy and Civil Liberties Oversight Board.

What does not happen often is the subsequent leaking of unmasked names to media outlets. That is a wholly different action, and the one Gowdy condemned as a breach of trust with Americans.

He was right to do so, since the leak allowed one or more people to attack Flynn’s reputation from a cloak of anonymity, according to Adam Klein, a senior fellow at the Center for a New American Security.

“The Flynn leak is a grave breach of both important institutional norms and criminal law,” writes Mr. Klein in a post on the national security blog Lawfare.

The political outcome of the Flynn controversy is inextricably entwined with the investigations into Russian active measures in the 2016 presidential campaign, which may not end for months or years. Legal experts are more focused on the effect of the new attention on privacy and surveillance on Section 702 itself, since the law is set to expire at the end of 2017.

Will Flynn’s exposure make it more difficult for a 702 renewal to get through Congress? Some supporters of the law worry that is the case.

If nothing else, the Russia connection has produced a spate of attention for the legislation and its procedures and quirks. At a March 1 House Judiciary Committee hearing on 702, some Republican members took issue with the so-called “backdoor search” loophole, under which the FBI can riffle through the 702 databases via keyword queries for evidence of criminal activity, without particularized warrants.

“I think that is illegal and a violation of the Constitution,” said Rep. Ted Poe (R) of Texas, a former county prosecutor and judge, after a discussion of backdoor searching at the Judiciary panel hearing.

Defenders of the law say it is a vital tool in the US fight against Islamist terrorism. They say it is flexible and nimble enough to allow quick NSA surveillance of suspected adversaries and all their numerous modern means of communication.

If Section 702 is not renewed “it would significantly impact my ability to generate the insights that I believe this nation needs,” said Adm. Michael Rogers, director of the National Security Agency, at the March 20 House Intelligence hearing.

Ms. Goitein of the Brennan Center says there are no public signs of intentional misuse of Section 702. But she adds that the law has been subject to a troubling “mission creep” in which US law enforcement uses its collected data to search for more and more things.

“The fundamental reality is that 702 surveillance is incredibly broad and allows for massive collection of information,” she says.

The law should be narrowed to focus even more sharply on foreign targets, according to Goitein, and minimization regulations should be greatly strengthened. The FBI should not be able to search 702-derived information for items on particular Americans without a warrant.

“I do think this is an opportunity to spread much broader awareness [of the law’s problems],” she says.