The FBI’s investigation into former national security adviser Michael Flynn is spurring fresh debate about a controversial law on foreign surveillance that is set to expire at the end of the year.
Republicans have expressed outrage over reports that Flynn’s calls to a Russian ambassador were intercepted by law enforcement.
That’s music to the ears of civil liberties and privacy advocates, who have long argued that the Foreign Intelligence Surveillance Act (FISA), and particularly Section 702, should be curtailed.
“It shows the need for restrictions on sharing and restrictions on use,” Nathan White, senior legislative manager at Access Now, told The Hill. “You don’t want to build the wall again, but it shows that information that is collected for a legitimate purpose can be used in ways that you may not agree with.”
FISA authorizes the surveillance and collection of information from foreign powers and agents of foreign powers. The law was amended in 2008 to include Section 702, which set up procedures for targeting non-citizens outside the United States for foreign intelligence purposes.
Flynn’s communication with Russian ambassador Sergey Kislyak was likely picked up as a result of routine surveillance of agents of foreign powers under FISA. Though minimization rules require the names of U.S. persons picked up in surveillance of foreigners’ communications to be redacted, there is exception for individuals whose identities are necessary to understand the foreign intelligence information, which Flynn likely fit.
Section 702 of the surveillance law is poised to sunset at the end of this year, setting up a battle in Congress over whether it should be reformed.
Flynn resigned as national security adviser on Monday after the Washington Post, citing details from an FBI probe, reported that he had discussed American sanctions on Russia in a phone conversation with Kislyak, despite public denials by Trump officials.
Rep. Devin Nunes (R-Calif.), who chairs the committee with oversight of the intelligence community, said he would investigate the leaks that prompted Flynn’s resignation.
“I expect for the FBI to tell me what is going on, and they better have a good answer,” he told the Washington Post. “The big problem I see here is that you have an American citizen who had his phone calls recorded.”
The comment was something of a role reversal for Nunes, who in the past had opposed efforts to scale back foreign intelligence collection.
“These are issues that have been very clear for years. It seems to have at least for a moment caused a change of heart for surveillance reform’s biggest opponents,” said Jake Laperruque, senior counsel at the Constitution Project.
“The idea that Americans’ communications are incidentally collected in foreign intelligence when there are foreign targets, that’s foreign intelligence 101.”
Proponents of the FISA law describe it as crucial to national security, saying it has helped thwart terror plots such as the 2009 plot to bomb the New York City subway.
Civil liberties organizations and privacy advocates support aspects of the law but say it grants far too much leeway for Americans’ communications to be swept up and shared across the government for domestic law enforcement purposes.
Critics also argue that the NSA’s “minimization” procedures — aimed at protecting the sharing of information from U.S. citizens acquired through surveillance of foreigners —don’t sufficiently protect Americans’ rights.
“The dissemination rule that is currently written, the minimization rules, the exceptions to the minimization rules are very broad, and that’s something that we’ve been saying and others in the civil liberties community have been saying for many years and certainly since 702 was drafted,” Alan Butler, senior counsel at the Electronic Privacy Information Center, told The Hill. “If anything, this [Flynn] episode proves that those exceptions are as broad as we’ve said.”
“But, unlike Americans’ whose international communications might be collected incidentally under 702, Mr. Flynn appears to have been the target of surveillance of a foreign agent and thus subject to FISA,” Butler said.
“If the chair of the intelligence committee doesn’t know that the U.S. government is routinely monitoring communications with foreign ambassadors, then we have much bigger problems than Mike Flynn’s phone calls,” he added, referring to Nunes’s statement.
It is not clear whether Flynn’s communications with the Russian ambassador were swept up in intelligence collection authorized by Section 702 or whether the surveillance was a result of traditional FISA application.
Still, Butler and others say the Flynn leaks could play a role in the debate over Section 702, giving ammunition to supporters of reform.
“I think it’s an important part of the narrative,” Butler said. “I think that what has been highlighted, the problems with 702 have been gone over at length at this point and they’re there for the advocates to lock onto.”
When contacted, a spokesman for the Intelligence Committee confirmed Nunes’s statement and clarified that he wants to discover whether those who handled Flynn’s communications with the Russian ambassador committed “infractions.”
“There are very strict procedures for monitoring phone calls involving U.S. citizens and for handling the information derived from those calls. We already know the leak of the purported contents of Gen. Flynn’s calls was illegal, and Chairman Nunes wants to ensure no other infractions were committed in the handling of these calls, if they took place as widely reported,” the spokesman said.
“He’d like to find out whether Gen. Flynn was the target of surveillance, whether that surveillance was lawful and proper, and whether his identity was properly revealed and disseminated in the executive branch,” the spokesman said.
Trump has taken aim at the intelligence community for leaks, warning that they will be “caught” for “illegally” giving information to the press.
White said the tension between Trump and the intelligence community could undermine efforts to push for reauthorization of Section 702 at the end of the year.
“If the intelligence community and the White House are at odds with one another, they will be less united in advocating for a clean reauthorization or permanent reauthorization,” White observed. “I’m not saying the programs will not be reauthorized, but it would be a structural change in the way that the conversation is happening that, I think, would affect the outcome.”