Alleged surveillance abuses by officials in the U.S. intelligence community are under investigation by an inspector general, Congress and the Justice Department. It’s impossible to yet know whether the probes will conclude there were policy, ethical or criminal violations. But it’s worth reviewing some important background.
In January 2018, Congress renewed the controversial law that allows U.S. intel agencies to surveil American citizens on U.S. soil without a court warrant. A majority of Democrats and Republicans reportedly favored adding new privacy safeguards. But surprisingly, shortly before the vote, party leaders instructed members to reject the safeguards — and so they did.
In general, the surveillance program was intended to authorize the U.S. government to secretly collect communications of foreign terror suspects. But, increasingly, it has been expanded for use on Americans here in the United States.
Intel officials have adopted secret policies and exceptions that have allowed them to monitor and comb through communications of innocent Americans without so much as court approval in the form of a warrant.
As a result, U.S. citizens have been swept into the intel dragnet by the millions.
If you unknowingly communicate with a foreign target, even so much as visiting a webpage he’s affiliated with, U.S. intel officials may consider your private communications fair game to collect and review.
Then, all the people you communicate with are, in turn, considered fair game — even though they may have had no contact with the initial foreign target.
What information has the government collected? Examples include: online internet searches, the Facebook pages you visit, private phone conversations, video chats, photos, messages and texts, bank records and email.
What happens with all the material? Originally, the communications of innocent Americans were supposed to be quickly destroyed so there would be no question of abuse, such as potential for the information to be used for political or blackmail purposes.
But that policy has been subject to a slippery slope.
The intel community insisted it needed to store the information for a short time in a database, in case it proved relevant. Soon, the information began to be stored for a longer period of time.
On top of that, the surveillance law allows the FBI to search — without a warrant — the database of material gathered without a warrant. Sen. Ron WydenRonald (Ron) Lee Wyden 8 surprising times our intel community spied on US citizens Hillicon Valley: House panel takes on election security | DOJ watchdog eyes employee texts | Senate Dems urge regulators to block T-Mobile, Sprint deal | 'Romance scams' cost victims 3M in 2018 GOP Iowa lawmaker proposes decriminalizing psychedelic drugs for medical use MORE (D-Ore.), who secretly learned of possible abuses as a member of the Senate Intelligence Committee, called that arrangement a “backdoor” end run around Fourth Amendment protections of U.S. citizens.
As the potential for abuse seemed to grow behind the scenes, the intel community agreed to “mask” or hide identities of innocent Americans even within the intel community. And they promised the database would be carefully guarded — accessed only by people with special approval.
However, the inspector general and the Foreign Intelligence Surveillance Court (FISC) have found multiple violations of these policies.
We know that the private communications of journalists and political figures have been secretly captured through controversial government surveillance practices .
Here are eight surprising examples of practices that show our intel community spying on us:
- In 1998, America’s intel agencies reportedly were paying U.S. phone companies hundreds of millions of tax dollars, via classified contracts , to monitor and surveil customers.
- After Sept. 11, 2001, a secret presidential order enabled U.S. intel officials to use one legal wiretap of a single terrorist suspect to sweep up communications of 20 million phones and “the majority of the entire U.S. population” if it analyzed all its suspects, according to a Stanford analysis .
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- After National Security Agency (NSA) whistleblower Edward Snowden exposed the controversial “three hop” policy, intel agencies reverted to a “two hop” policy. This still permits the NSA to access 25,000 phones with a single legal wiretap, according to Stanford .
- Also after 9/11, intel agency policies permitted surveillance of Americans who merely mention a foreign terrorist target “in a single, discrete communication.” In other words, the U.S. citizen may not have any contact at all with the terrorist suspect, but may simply refer to him in an email. That’s good enough to get wrapped up in surveillance.
- In 2011, NSA secretly eroded longstanding protections of U.S. citizens’ privacy by creating a “loophole” that allowed “backdoor searches” of “incidental collection” of their communications.
- In 2015, Congress passed a law requiring private internet companies to secretly “transmit cyber-threat indicators” to the Department of Homeland Security and granting the companies immunity from prosecution for sharing customers’ personal data in those cases.
- In 2016, intel officials vastly expanded their searches of an NSA database for sensitive, protected content of Americans’ emails and phone calls. The numbers increased from 9,500 searches involving 198 Americans in 2013 to 30,355 searches of 5,288 Americans in 2016.
- Also in 2016, an inspector general concluded that intel agencies had violated Americans’ privacy protections by allowing certain searches through an NSA database. The agencies also improperly allowed third-party contractors to access protected data and failed to report the violations to the FISC on a timely basis, waiting until days before the 2016 election. The FISC judge criticized NSA for “institutional lack of candor” and stated “this is a very serious Fourth Amendment issue.”
In October of 2016, the FISC demanded the intel community adopt policies to correct abuses flagged by the court and inspector general. The court accepted improvements proposed under the Trump administration in April 2017.
The American Civil Liberties Union and the Electronic Frontier Foundation, along with private attorneys, are trying to convince a powerful federal appeals court that the program is unconstitutional, violating people's Fourth Amendment rights because it allows the government to access millions of Americans' communications without a warrant.
Among the privacy safeguards rejected by Congress when it renewed the government’s surveillance authority in January 2018: a requirement that intel agencies get a court warrant before searching through communications of certain U.S. citizens.
Sharyl Attkisson is an Emmy Award-winning investigative journalist, author of The New York Times best-sellers “The Smear” and “Stonewalled,” and host of Sinclair’s Sunday TV program, “ Full Measure .” Follow her on Twitter @SharylAttkisson .