President Trump caused more trouble than he probably bargained for when he accused former President Obama of wiretapping him during the 2016 presidential campaign. The fallout has ensnared House Intelligence Committee Chairman Devin Nunes, R–Calif., in an impossible clash between his president, intelligence agencies, and his own political past.
It’s important to start by breaking down President Trump’s initial claim: that Obama wiretapped him for political purposes. Nonsense. There is no evidence that Obama was directly involved, ordered a wiretap, or acted for political reasons. There isn’t even any evidence that a wiretap exists. (Trump is hiding behind his use of quotation marks in the tweet, but wiretap has a very technical, legal meaning). Getting to this point has taken up most of the air since the tweet. Let’s be done with that debate. On its face, absent other, increasingly unlikely evidence to the contrary, Trump’s initial tweet is balderdash.
But let’s be generous and assume that he meant that the government spied on him while he was a candidate. That almost certainly is true. Why? Because the government has surveilled virtually all Americans. We know it did because of the Snowden leaks, and because it has argued in court that no volume of surveillance violates a reasonable expectation of privacy when it comes to metadata. While one program—the telephone metadata dragnet—was technically ended (and in some ways codified) by the USA Freedom Act in 2015, another law is still on the books with virtually no limits.
Specifically, it’s Section 702 of the FISA Amendments Act of 2008, which allows collection of all information in the possession of American technology companies based on keywords (known in government parlance as selectors). This information can be in transit over the Internet’s backbone or in storage with companies like Google.
The primary limit on this authority is that “targets” for collection aren’t supposed to be Americans. Targets numbered about 94,000 in 2015, but, critically, can be groups of people and even foreign powers. A single person’s selectors —every cookie on a computer, every device’s MAC address, every email address, etc.— could number in the hundreds, if not thousands. Even a group like al-Qaida could well be considered a single target with hundreds of thousands of selectors (or more).
Section 702 allows the government to force American companies to hand over all information tied to those selectors. When the data is at rest (like an email you have but aren’t looking at right now), this collection is referred to as Prism; when the data is in motion (like Google sending your email to your computer), the data is picked up in real time off the backbone of the Internet. That information delivered to the government includes enormous amounts of Americans’ information. A Washington Post analysis of Snowden documents found that nine out of 10 accounts swept up under the government’s mass surveillance programs were not the targeted accounts, and that half of the accounts belonged to Americans. How many Americans? We have no idea. It’s been nearly a year since the intelligence community promised an official estimate of how many are affected by 702—but they still haven’t delivered.
That means that your information can get caught up in an investigation because you called or emailed someone who the government thinks, without any judicial review, is somehow related to a foreign power — and even if you haven’t, the government is still literally forcing a company to search through every one of your communications routed through it, all without a warrant. And it happens not only for national security reasons, but also for purposes as nebulous as “foreign affairs.” The secret FISA Court is the only actor outside of the Executive Branch that exercises real oversight, and it only reviews the overall reasons for collection, the procedures the government will use to mask Americans’ information, and may narrow collection from a programmatic standpoint. They don’t check who exactly is on the list.
Intelligence agencies—including the FBI—claim the right to search through that information for information on Americans, even though the law’s only purpose is to target non-Americans. The government usually calls this a “U.S. person query,” while most of the rest of the world calls it the “backdoor search loophole.” It happens thousands of times a year. We know that FBI agents conduct such a search as a matter of “routine practice” whenever they open a new investigation or even initiate an assessment. Congress has failed, time and again, to fix it.
As Elizabeth Goitein wrote in Slate in February, it’s important to remember that this setup exists precisely because surveillance hardliners like Nunes advocated for it. In fact, they intentionally misled Congress and the public about the programs. They claim that Americans cannot be “targeted” by 702 and that when it sweeps up Americans, it only does so “incidentally” while collecting on legitimate targets. Note the careful wording in these statements (the opposite of Trump). In a technical sense, they aren’t inconsistent with the above definitions, but only using the Alice-in-Wonderland intelligence community definitions. Whether born from political malice or the fundamental dysfunction of the House intelligence committee, they are lies.
Note, too, the words we’ve heard from Nunes about the Trump wiretap allegations. Words you will hear more and more often. Donald Trump’s information was collected incidentally, he was not targeted, his information was unmasked. It sounds remarkably similar to Section 702 surveillance, and is almost certainly FISA–related. And it sounds like the government got information it normally can’t without a warrant, except in the backwards world of intelligence collection. Suddenly, Donald Trump may be the poster child for the gravity of “incidental collection” of Americans.
Which brings us back to the absurd reality we live in. Nunes, who once blatantly misrepresented the invasiveness and scope of the backdoor search, is alarmed because the head of his political party seems to have been caught up in such a search, or other incidental collection that looks very similar to it.
To be very, very clear, I am not excusing Trump. As both a candidate and president, he was and is a completely valid target of surveillance under the Foreign Intelligence Surveillance Act (if not Section 702). He communicates directly with agents of foreign governments. He has massive and questionable financial deals. His ability to harm this country is, literally, unmatched. The FBI could almost certainly obtain proper warrants, from real judges, for Trump and his associates’ information, and it could have done so well before the election.
But it is still troubling that the intelligence community didn’t need a warrant in this case. That’s because if the FBI decided to investigate you, even informally, it would, as a matter of routine practice,search through all of its collected information, including databases stuffed with information collected under Section 702, for you, any American, and anyone else in the world — without a warrant to collect initially or one to search it specifically for you. Meanwhile, the House Permanent Select Committee on Intelligence, which was established in the ’70s after horrific abuses of power by intelligence agencies to protect Americans against an overzealous and overly intrusive surveillance state, has become its biggest cheerleaders.
This is a massive problem. Section 702 and even HPSCI itself are in desperate need of dramatic reform. And Nunes has just proven that he and the House Permanent Select Committee on Intelligence are utterly unequipped to lead on intelligence matters for Congress.