For the sake of national security, the intelligence community must take stock of the underlying reasons why it is losing the trust and goodwill of the American people and their representatives in Congress.
Consider the recent, intense debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA). In that legislative struggle, the Biden Administration, the intelligence community, and its champions on Capitol Hill invested everything they had to defeat an amendment offered by House leaders of both the conservative Freedom Caucus and the Progressive Caucus. This unprecedented, pan-ideological reform coalition sought to add a warrant requirement for situations in which federal agencies inspect the communications of Americans caught up in the surveillance, pursuant to Section 702, of foreign threats on foreign soil.
The U.S. intelligence community (IC) turned to tactics that had worked well in the past. The IC and others opposed to the amendment turned to Russian nuclear space weapons. Members were herded into SCIFs – secure compartments safe from wiretapping – to hear classified briefings on other threatening developments. FBI Director Christopher Wray warned that a warrant requirement would have “real-world consequences” in a world bristling with terror threats.
U.S. intelligence won the vote in April – but this time only by a whisker – a vote of 212 to 212, which meant the warrant requirement failed by a single tie-breaking vote.. While barely scraping out a win on warrants, the intelligence community lost ground elsewhere. It wanted Section 702’s next reauthorization to be set five years from the vote. Congress dialed that back to two years, a short window that has already sparked a fresh debate about the reach of U.S. intelligence programs.
The left-right surveillance reform coalition posted other wins. Congress passed Rep. Chip Roy’s amendment putting the FBI under a microscope, requiring quarterly reports on the number of times the bureau searches, or “queries,” the communications of Americans in Section 702 databases. It also reduced the number of FBI personnel who can query Americans’ communications under Section 702 The practice of “abouts” collection, in which an American could be surveilled for a mere third-party mention, was moved from programmatic suspension to termination by a successful amendment offered by Rep. Ben Cline.
The House also passed the Fourth Amendment Is Not For Sale Act in a standalone vote with bipartisan support, 219-199. This bill would require the FBI and other federal agencies to obtain a probable cause warrant before purchasing Americans’ personal data, including internet records and location histories. Passage of this bill by the House validates it and gives it momentum in the Senate.
The response from the intelligence community and its defenders to these reverses and near losses has been incredulity.
Such reverses have occurred, some in the intelligence community assert, because of “bad faith attacks” by “U.S. lawmakers on the far left and the far right.” We are told these ill-informed attacks explain why the poll numbers show declining appreciation by Americans of the vital role played by intelligence agencies. David V. Gioe, Michael S. Goodman and Michael V. Hayden have written in Foreign Policy about a University of Texas at Austin (UT) & Chicago Council on Global Affairs study that shows “a growing number of Americans thought that the intelligence community represented a threat to civil liberties.” Some 17 percent thought so in 2022, up from 12 percent in 2021. They conclude: “A nontrivial percentage of Americans feel that the intelligence community is an insidious threat instead of a valuable protector in a dangerous world – a perspective that jeopardizes the security and prosperity of the United States and its allies.”
The word “insidious” was nowhere in the poll’s question. The question forced respondents to pick one choice, ranging from appreciating the “vital role” of the intelligence community in national security, to seeing it as a threat to Americans’ civil liberties. One can believe, as we do, that the United States and its allies need the protection of U.S. intelligence in a dangerous world growing more dangerous, while also believing that some elements of the intelligence community – the FBI being the primary bad actor – are, indeed, running roughshod over Americans’ civil liberties. These are not mutually exclusive descriptions.
The Imperative of Listening to Concerns from the Left and Right
This misperception shows how the intelligence community, which listens for a living, would do well to absorb the concerns of well-informed critics.
In the run up to this year’s Section 702 debate, Director of National Intelligence Avril Haines and other leaders of the intelligence community met with us, as well as other civil liberties groups, from the left-leaning American Civil Liberties Union to the right-leaning Americans for Prosperity. These invitations were appreciated. Surveillance reformers came away well briefed about the concerns of the intelligence community, but none of us felt that our substantive concerns were taken to heart. Perhaps it is time for a longer, and more in-depth dialogue, one that could also include Members of Congress and key staff, advancing the effectiveness of U.S. intelligence by removing the contentious issues of civil liberties violations.
We keenly wish intelligence community leaders to understand that such issues are real and painful. This is important to know because when one of the 18 intelligence agencies, or bad actors within those agencies, misuses the immense surveillance capabilities they’ve been entrusted with, it degrades and threatens the vital mission of U.S. intelligence – as the UT poll suggests.
For example, five years after the fact, it has yet to sink in just how awful and dangerous the FBI’s behavior was in 2016-17. Many on Capitol Hill – including some who are deeply critical of Donald Trump – remain dismayed by the tactics used against Trump campaign associates.
If this sounds like a right-wing talking point, you may not have absorbed the facts in DOJ Inspector General Michael Horowitz’s report on “Crossfire Hurricane.” Horowitz reported “17 significant ‘errors or omissions’ and 51 wrong or unsupported factual assertions in the applications to surveil [Trump aide Carter] Page.” The FBI’s actions misinformed the Foreign Intelligence Surveillance Court (FISC) into issuing four surveillance orders, one can reasonably say essentially against a presidential campaign and then against a new administration, by portraying as invaluable intelligence a document it knew or should have known was a shoddy political opposition research paper. At least one DOJ official was marketing this “intelligence” with the media. And when the FISC wanted to know if Page was a CIA asset, an FBI lawyer provided a doctored document hiding that exonerating fact from the court (the lawyer later pleaded guilty).
Conservatives were also alarmed by the 2020 letter signed by a Who’s Who of recently retired intelligence officials that the Hunter Biden laptop story had the “classic earmarks of a Russian intelligence operation.” The letter cast doubt on the authenticity of the Biden “laptop” (the letter itself puts that in scare quotes) and provides a bottom-line conclusion: “our experience makes us deeply suspicious that the Russian government played a significant role in this case.” Hunter Biden has since admitted the laptop was his, and the Justice Department just prosecuted him successfully based on some of the correspondence captured on that laptop. Based on what is currently known, their letter should have at a minimum been more highly caveated.
Former intelligence officials have a right to speak on any topic. Warnings about Russian disinformation and attempts to control our politics are real – and Russian involvement with political uses of the laptop has not been disproven in this very case. But these recent officials cannot help but reflect badly on the U.S. intelligence agencies they so recently led when they draw conclusions based on incomplete information days before an election.
The left also has its reasons for distrust. Progressives are concerned that non-violent protesters have been targeted for improper surveillance for simply exercising their First Amendment rights. Liberals voiced outrage when it was revealed that the Department of Defense warrantlessly purchased sensitive personal information on Americans from a Muslim dating app. People of all political persuasions are concerned that the FBI used Section 702 data to warrantlessly spy on political commentators, Members of the U.S. House and Senate, 19,000 donors to a Congressional campaign, journalists, and a state judge who had the temerity to report a local police chief’s civil rights violations to the FBI.
Such incidents are not internet conspiracies. They are established by information gleaned from mandated reporting and from the courts. For example, the FBI earned a rare rebuke – eventually made public – from the secretive Foreign Intelligence Surveillance Court (FISC) and Judge James E. Boasberg for “widespread violations” of the querying procedure of the Section 702 database against Americans. The FISC also revealed the FBI used warrantless NSA data for a wide range of purely domestic cases, though not explicitly contrary to then-existing policy. These cases include health-care fraud, bribery and other crimes posing no threat to national security.
How Use of Emerging Technology Exacerbates Mistrust
This leads to another realization we wish the intelligence community to absorb. There are now so many ways to warrantlessly surveil Americans that, for all practical purposes, the Fourth Amendment of the U.S. Constitution might as well be a dishrag. Consider the routine practice by federal agencies ranging from the FBI to the IRS, DEA, Department of Homeland Security and Department of Defense of buying and warrantlessly accessing Americans’ digital data scraped from apps and sold to the government by shadowy, third-party data brokers.
The justification for this practice is that Americans waive away their rights to this data when they sign the terms and conditions of a given social media platform or an app. Americans accept these terms because they know companies only want this anonymized information to place ads in their digital feeds. Until recently, few were aware that their own government is purchasing personal information that is more intimate than a diary. Some people, after all, lie to their diaries or omit some details. But our digital trails reveal everything about us.
Federal agencies collect bankruptcy information, employment history and income, credit histories, consumer purchase histories, and consumer interests. They acquire records about our ethnicities, voting registration, travel records, and attorney-client information. They purchase information about our medical and mental health, religious activities, browsing histories, and library records, communications with friends, expressions of political views, our associates, and details about our sex lives. All of this data is easily de-anonymized and searchable by name.
The authors of a report released by the Office of the Director of National Intelligence admitted that such data “could be used, for example, to identify every person who attended a protest or rally based on their smartphone location or ad-tracking records.” Such information could also be used, the report acknowledged, to “facilitate blackmail, stalking, harassment, and public shaming.”
As more Americans learn about this practice, they are understandably alarmed. Eighty percent of Americans in a recent YouGov poll say Congress should require government agencies to obtain a warrant before purchasing location information, internet records, and other sensitive data about people in the U.S. from data brokers. Yet these data purchases continue apace, and without any judicial oversight.
Shortly after the House of Representatives passed the Fourth Amendment Is Not For Sale Act, 219-199, to require warrants before the government can purchase Americans’ data, Director Haines issued a directive requiring agencies to formulate internal guidelines and reporting requirements on commercially acquired data. This is a welcome development. An associated report acknowledges that such data can be de-anonymized – that is, it can reveal information specific to individual Americans who’ve done nothing to justify having their entire lives X-rayed.
Data purchasing is just one example of why the Fourth Amendment is increasingly a dead letter. Add to this an 11th hour amendment to Section 702 that expands the definition of an electronic service provider to include almost every business with access to “communications equipment.” Such a broad definition could force employees and even custodial workers to insert thumb-drives to sweep Americans’ data, under compulsion and lifetime gag orders. At this writing, Congress is considering narrowing the definition of entities that must comply with government surveillance orders – but chooses to do so with secret legislation, preventing the rest of Congress and the American people from knowing the boundaries of this change. And the House Intelligence Committee so far is refusing even to allow this modification.
At the local level, private and public cameras are being linked to create comprehensive surveillance networks. Federal grants are proliferating cell-site simulators, often called Stingrays, that ping cellphones for location tracking and sometimes extraction of content from cellphones across a wide area. These are useful investigative tools. Many murderers, robbers, and rapists have been successfully prosecuted by evidence from surveillance cameras and Stingrays. The danger is that the networking of all these tools, with comprehensive data scraping from social media and apps, will be combined with ubiquitous facial recognition software and AI to create a Chinese-style Panopticon, in which everyone can be directly monitored by the government without being directly aware of it.
And, of course, when all else fails, the intelligence community can rely not on legislation but on Executive Order 12333. Sens. Ron Wyden and Martin Heinrich revealed that the CIA has engaged in collection of Americans’ data for years under 12333. The absence of statutory authority for such programs means they have no judicial oversight whatsoever.
What motivates U.S. intelligence to push for such capabilities? FBI Director Wray warns that China is targeting American infrastructure in a warlike way. Cyber attacks, election interference and other malign influence operations by adversarial foreign nations, new non-state terrorist threats, and other dangers have proliferated. In the UK, GCHQ Director Anne Keast-Butler reveals that Russia is not only preparing aggressive cyberattacks on Western targets but is also fomenting acts of physical sabotage. We understand that U.S. intelligence needs robust tools to track and counter such threats. But Americans left and right should fear the use of these awesome powers of surveillance to be targeted at a lawful protester, or to warrantlessly examine the personal communications of a U.S. senator or a judge.
Granted, most people in the intelligence community are dedicated and hard-working civil servants, and are assuredly not seeking to create a panopticon for political interference or harassment of people or organizations they don’t like. But a panopticon is coming – and is in many ways already here – as technology weaves together its elements. And when an American Panopticon is established, it is inevitable that bad apples and rogue agencies will use it for purposes at odds with our democracy. There is nothing hackneyed about calling such threats “Orwellian.”
Two years before the next round of debate over Section 702, an earlier, deeper, and more wide-ranging conversation needs to take place between the intelligence and civil liberties communities. It is in the best interests of U.S. intelligence and its mission to keep Americans safe from escalating foreign threats that we discuss ways to ensure that powerful technologies and programs come within some recognizable version of the American constitutional system. Congressional passage of measures like the Section 702 warrant requirement and the Fourth Amendment Is Not For Sale Act would be a good first step.