The following op-ed was co-authored by Daniel Semelsberger, a research assistant with the R Street Institute.
An unappreciated subplot of Lt. Gen. Michael Flynn’s departure as national security advisor is the role it could play in the pending reauthorization debate over Section 702 of the FISA Amendments Act. A broad intelligence authority created in 2011, 702 also may have been what made Flynn’s unmasking possible.
The battle over Section 702 reauthorization figured to be contentious long before President Trump took up residence at the White House. The provision authorizes U.S. intelligence agencies to target, without warrant, the communications of foreign agents located outside the country. But in some cases, 702 also enables collection of emails and phone calls from law-abiding U.S. citizens, which are stored in intelligence databases where they may be exposed to future warrantless unmasking searches.
This is not to say 702 functions as a mass-communications data-collection authority, like the National Security Agency’s “upstream” interception of traffic from internet cables and switches or what it collects from internet companies through the PRISM program. Only U.S. citizens who interact with foreign targets—sometimes inadvertently—could see their communications swept up. By law, that data is then supposed to be handled using “minimization procedures,” meaning it cannot be stored or disseminated without masking all identifying details. Only in exceptionally rare circumstances could a citizen’s identity be unmasked as anything other than a “United States person.”
Few doubt that Section 702 is essential to American national security. In practice, however, critics of the provision historically have pointed to two key flaws: its lack of transparency and privacy protections. The Flynn affair may have underscored a third: lack of effective oversight. Intelligence agencies still haven’t revealed how many Americans’ communications have been swept up under 702. The intelligence community also hasn’t clarified how this information could be used in legal proceedings. Minimized communications of “masked” persons are subject to warrantless unmasking, which can reveal quite a bit that would be useful in courtroom prosecutions. Without specific legal limits, all that protects Americans’ privacy are a given agency’s internal policies and sense of responsibility.
Of course, if ever there were a circumstance that called for unmasking a U.S. citizen, it would be to investigate the former national security advisor’s ever-growing scandals. Flynn’s call with the Russian ambassador and subsequent misleading of Vice President Mike Pence and other White House officials initially was characterized as an isolated lapse in judgment. It has since been revealed that he participated in multiple undisclosed meetings with Russian officials and received more than $67,000 from Russian companies and state media. Flynn also has acknowledged serving as a paid foreign agent of the Turkish government in a dispute with the United States while serving as the president’s campaign adviser. Most recently, the general reportedly is offering to testify to investigators in exchange for immunity.
This dilemma has few comparisons in modern U.S. history. Optimistically, the disruptions it has created in the political landscape could stitch together an unlikely coalition to reform surveillance, joining Republican intelligence hawks with privacy and civil-liberties advocates. Alternatively, the issue’s touchiness could turn the debate into a binary ultimatum between reauthorizing Section 702 in full or letting it expire.
Given how deeply the White House and intelligence community currently distrust each other, Congress should take this opportunity to negotiate better approaches to 702 surveillance and to intelligence-agency structure, more generally. The core problem is that Section 702 lacks reporting requirements and oversight with teeth. Congress can address this by adding more reporting requirements on the intelligence community.
Most congressional representatives are badly uninformed about intelligence and forced to rely on often unverified media reports. Oversight boards could serve to brief members of Congress who don’t sit on the intelligence committees about basic intelligence details. Reenergized committees also could serve as advocates when overly broad or unconstitutional data collection methods require legislative correction.
There is no doubt that Section 702 has been an effective counterterrorism tool, but the intelligence community’s accepted discretion practices are largely unknown to U.S. officials. More clarity on these fronts would do much to rebuild public trust in the agencies and address skepticism about surveillance. If lawmakers take a balanced and bipartisan approach, we can hold out hope for unique coalitions who could finally bring about real reform.
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