Every American should be concerned about the Flynn leaks — here's why
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Put aside partisan politics and U.S.-Russia relations for just a moment.

The resignation (or firing) of Michael Flynn as national security adviser raises a serious and troubling question about when and under what circumstances the sort of government surveillance operation that ended his career may be used against a private American citizen.

Flynn, we all now know, resigned amid a flurry of conflicting statements about what he did or didn’t say on the telephone with a Russian ambassador before he became the national security adviser.

It’s no surprise to just about anyone that such a call was recorded by U.S. intelligence officials. But the very same laws that authorize the routine interception of a foreign national’s telephone conversations also include important protections for American citizens.


So one question looming large right now is whether proper protocol was followed by the agents who identified Flynn and transcribed the series of phone calls between Flynn and Russian Ambassador Sergey Kislyak.

Don’t conflate this issue with the leaks of those transcripts to media outlets. The leaks are separate bad acts — and not enough noise has been made about them. The question I am asking is whether the transcripts should exist at all.

Shouldn’t Flynn’s status as a private American citizen have forced the agents to stop listening, or at the very least to wash out the recording? Or did they instead ride roughshod over the rights of an American as they overstepped their license to listen in on a foreign agent?

At the very least, the law appears to require that “minimization procedures” be used to protect a private American citizen’s identity in such an instance so that, in place of Flynn’s name, the transcripts would have said only “U.S. Person.” 

When viewed through this lens, the leaks take on a new and compelling dimension. News accounts have suggested that a large number of sources confirmed the accounts published in The Washington Post and The New York Times. Separate and apart from the inquiry into who did the actual leaking, we must now also ask: How did such a large group gain access to this information?

If Flynn’s status as a private American citizen had been accorded the proper weight and respect from the outset, U.S. officials overseeing the surveilling of Ambassador Kislyak’s phone would, at a minimum, have taken immediate steps to limit the universe of individuals who were privy to the knowledge that Flynn had been identified as a speaker.

Leaks often take place when the wrongdoers sense tacit permission or feel the comfort of anonymity that derives from being part of a crowd. Conversely, when a secret is known only by a very few, each one of those in the know feels a greater reluctance to leak because the risk of being fingered is much higher.

Here we have one circle, the “intelligence community,” and a second circle — entirely within the first — made up of those made aware of the Flynn/Kislyak calls. A third, even smaller circle exists, made up of those who had access to the transcripts before they were leaked. It now seems quite clear that circles No. 2 and No. 3 were far too large. Only by allowing an irresponsibly broad dissemination did the ultimate leakers and wrongdoers sense tacit permission and become emboldened to ignore the law. 

So go ahead. Hunt down the leakers. But don’t drop the ball on an equally important probe into how the universe of potential leakers grew so large in the first place. 

As this story unfolds, we must not lose sight of whether Flynn’s rights were ignored or violated. The government’s power to monitor foreigners on our soil must be carefully constrained to respect the bedrock of every American’s protections under the U.S. Constitution and the Fourth Amendment.


Scott L. Vernick is a trial attorney at Fox Rothschild LLP and chairman of the firm’s Privacy and Data Security Practice Group. A noted authority on privacy law, he counsels multinational businesses and the middle market on how to mitigate risk and overcome challenges posed by the federal and state enforcement environment. Vernick was named to The National Law Journal’s 2016 list of Trailblazers in Cybersecurity and since 2007 has been ranked by Chambers USA as a leading litigation attorney in Pennsylvania.

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