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The federal law authorizing a vast amount of the United States government’s foreign intelligence collection is set to expire in two months, a deadline that threatens to mothball a notoriously extensive surveillance program currently eavesdropping on the phone calls, text messages, and emails of no fewer than a quarter million people overseas.
The US National Security Agency (NSA) relies heavily on the program, known as Section 702, to compel the cooperation of communications giants that oversee huge swaths of the internet's traffic. The total number of communications intercepted under the 702 program each year, while likely beyond tally, ostensibly reaches into the high hundreds of millions, according to scraps of reportage declassified by the intelligence community over the past decade, and the secret surveillance court whose macroscopic oversight—even when brought to full bear against the program—scarcely takes issue with any quotidian abuses of its power.
As of now, members of Congress have introduced exactly zero bills to prevent 702 from sunsetting on January 1, 2024, even though many—perhaps a majority—view this intelligence “crown jewel” as fundamental to the national defense, a flawed but fixable law. The Democrats, who control the Senate, are not blameless in stalling the reauthorization, with more than a handful vying to ensure its renewal is contingent on forcing the government to obtain warrants before using 702 data to investigate its own citizens. Nevertheless, the internal conflict roiling the Republican Party—many of whose members share in the desire to rein in the government’s far-reaching domestic surveillance capabilities—deserves the lion's share of the credit right now for neutralizing any hope of a consolatory agreement.
The US intelligence community is not without blame. A litany of reported errors, ethical violations, and at least some criminal activity bearing the telltale signs of having been swept under the proverbial rug have gone a long way in validating the concerns of Section 702’s most ardent detractors: Career Fourth Amendment defenders on both sides of the aisle, implausible joined by a colorful cast of Trump loyalists, lawmakers whose animosity for the intelligence community routinely explodes with allegations of partisan bias, among other “treasonous things.”
A US report published in September by an independent government privacy watchdog describes a number of new “noncompliant” uses of raw Section 702 data by analysts at the NSA, an agency where military and civilian staff have been repeatedly caught abusing their access for personal, even sexual, reasons. Issued by the Privacy and Civil Liberties Oversight Board (PCLOB), a body effectively commandeered by Congress in 2005 in an effort to expose the scope of the post-9/11 surveillance explosion, the report adds to a decade’s worth of documented surveillance abuse.
Months after the start of the Edward Snowden scandal in 2013, The Wall Street Journal reported that NSA staff members had been caught numerous times spying on individuals the paper unfortunately relegated as “love interests.” This motive—stalking—grew into a bona fide intelligence meme, the abuses ”common enough" at the agency to warrant an internal designation: LOVEINT.
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While reductive, clearly, the existence of the term necessarily implies that intelligence practitioners in 2013 were well aware of a sexually-motivated pattern of misconduct. Nevertheless, Senator Dianne Feinstein, who died on September 29 at the age of 90, came to the NSA's defense amid the Journal's exposé, saying the violations “in most instances” did not involve Americans' personal data—awkwardly, another way of saying people's constitutional rights were being violated, only less than half of the time. Meanwhile, nearly all known violations of similar stripe appear to have been self-reported, typically by employees fearful of failing a polygraph.
Law enforcement officials at nearly every level of government across the US have been documented abusing access to confidential databases. Invariably, when the misconduct is laid bare, the desire to feel omniscient in a relationship, or exercise godlike power over a complete stranger, tops the list of determinants IDed by investigators.
Last month, the watchdog report released by the PBLOB revealed that, in 2022, an NSA analyst had abused their 702 access to conduct illegal searches on two individuals they'd encountered “through an online dating services,” showing that years of rejiggering the agency's rules and procedures had done little to obviate the most pedestrian of offenders: analysts who allow their own toxic egos to get the better of their duty.
“The US government’s incredible surveillance powers are intended to keep Americans safe from global threats, but we’ve seen time and again how officials have misused this authority at the expense of Americans’ civil liberties,” US senator Chuck Grassley, a Republican from Iowa, tells WIRED. “Instead of aiming this tool at terrorists and international criminals, some have put their political rivals and even love interests in the crosshairs.” The intelligence community’s continued access to the 702 data hinges, in part, on its ability to demonstrate that it can cooperate with oversight attempts, Grassley says, and send an “unequivocal message that abuses will be met with steep consequences.”
While any substantive detail about 702 violations in the past remains largely omitted from the public record, what can be gleaned from the handful of unclassified reports available show the “consequences” of violating 702 procedure are practically nonexistent. A 2013 letter from the NSA’s then-top internal watchdog, George Ellard, for examples, describes years’ worth of abuses that coincide and even predate the existence of the 702 program, which Congress enshrined in 2008 as part of an effort to legalize the already rampant wiretapping of Americans' calls, and to immunize telecommunications companies like AT&T for their capitulation.
Ellard’s letter, combined with more recent disclosures, paints a picture of employee misconduct that flies inexplicably under the radar; that is, up until the point one is connected to a machine, unaware that its greatest utility lies in provoking spontaneous confessions. In a particular egregious cases, predating the 702 program by several years, an NSA employee admitted to wiretapping as many as nine phones belonging to women. As with other like offenses, Ellard noted that the employee “resigned before discipline had been proposed.” (Incidentally, Ellard’s decade as the NSA's inspector general came to an unceremonious end following allegations that he’d retaliated against an agency whistleblower.)
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Members of the armed forces who improperly use 702 data appear not to fair as well, almost certainly due to the fact that they're unable to simply walk away from their jobs. A member of a “tactical military unit,” for instance, was demoted and docked one month’s pay after using the 702 program to target the communications of his wife, while another’s access was severed after it was revealed they’d been eavesdropping on random people’s calls—purportedly to immerse themselves in the language of the people they were stalking.
Having targeted more than 246,000 “non-US persons" last year, Section 702 allows the NSA to collect both text and audio of communications belonging to Americans, even when they are not the target of an investigation, or suspected of any foreign or criminal ties. According to the PCLOB's findings, these communications are “highly personal and sensitive, capturing exchanges with loved ones, friends, medical providers, academic advisers, lawyers, or religious leaders,” and may betray “an individual’s whereabouts, both in a given moment and in patterns over time.” While the communications of Americans captured in the Section 702 surveillance may be subject to “minimization” procedures down the line, they are nevertheless stored in a “raw,” or unredacted format, and can be viewed through the use of a simple Google Search-like interface.
It's unclear how many government employees are able to access 702 data, but US lawmakers have offhandedly estimated the figure at upwards of 10,000. This includes many at the Federal Bureau of Investigation (FBI), which, in some ways, is held to relaxed standards due to its dual role as a domestic law enforcement agency—one permitted, unlike the NSA, to target Americans directly. Under its own procedures, the FBI is allowed to conduct searches of the 702 database without probable cause, so long as it believes it is “reasonably likely” to retrieve information connected to a crime—the evidentiary equivalent of a hunch.
According to a 2016 memorandum authored by the secret Foreign Intelligence Surveillance Court, the FBI has at times failed to abide by what are already notably loose restrictions on using the 702 database to review communications likely protected by attorney-client privilege. The FBI's procedures have long permitted its agents to extract from the database correspondence between US citizens and their attorneys, as well as disseminate that information internally, so long as the target of the search has not been charged with a crime.
While the NSA refers to the communications of Americans captured under the 702 program as having been collected “incidentally,” it is important to note that the word “incidental” does not mean “by mistake.” It is accepted, rather, that each year, as a cost of doing business, the NSA will “inevitably” intercept the calls, text messages, and emails of an unknown but “substantial” number of Americans. This collection should be understood not as having occurred in error, but as collateral surveillance, justified by the government under an ever-expanding list of national security threats: Islamic terrorists, Russian spies, North Korean hackers, and Chinese opioid manufacturers.
Since the enactment of Section 702 some 15 years ago, US intelligence leaders (and their lawyers) have insisted that it would be impossible to provide accurate data on how many Americans are incidentally surveilled each year. Ironically, it is the sheer size of the 702 program that is to blame, they say, for obscuring its impact on freedoms in the homeland. “We do not yet know the scope of incidental collection,” the nearly two-decade-old PCLOB acknowledged earlier this year. Though it should not be understood as “occurring infrequently," it said, nor as some “inconsequential part” of the program.
