Authored by Gene Schaerr via RealClear Wire,
It was T.S. Eliot who coined the phrase “wilderness of mirrors” in his poem, “Gerontion.” It was the saga of the CIA’s James Jesus Angleton’s betrayal by Soviet double-agent Kim Philby that made the phrase a byword in the shadowy world of intelligence.
In that world, deception, deceit, and disinformation are just tools of the trade. These are, no doubt, useful tools when dealing with all manner of criminals and agents of despotic powers. But this culture of deception seems to have infected the ability of the intelligence community – and a few of their champions on Capitol Hill – to play it straight with Congress and their constituents, the people intelligence agencies are meant to serve.
That culture of deception even seems to infect the so-called FISA Reform and Reauthorization Act, proposed this week by the House Permanent Select Committee on Intelligence, a bill that represents the wish-list of the intelligence community.
First, the bill’s marquee “reform” is the prohibition of only a handful of searches or “queries” of information about Americans under Section 702, the authority enacted by Congress to enable foreign surveillance but often used by the government for domestic spying. The type of search the bill would prohibit is “evidence-of-a-crime only” queries. But in 2022, out of over 200,000 queries of Americans’ data, there were only two instances of the FBI accessing Section 702 data under this rubric. And even if that prohibition were in place, the FBI could easily evade it simply by claiming in every instance that agents were looking for some (hypothetical) terror threat in addition to possible crimes. The bill’s non-reform “reform” would thus do nothing to stop the routine snooping on Americans, from 19,000 donors to a congressional campaign, to a House member and a \senator, a judge, and numerous protesters of the left and right. Nor would this “reform” prevent known abuses, such as the NSA agents who used this powerful search program to check out online dating prospects and potential tenants.
Even more outrageous is a problematic provision tucked away in this “reform” bill but not so much as mentioned in the committee’s report. Section 504 of the House Intelligence bill requires that those who have access to the “equipment that is being or may be used to transmit or store such communications” shall be treated as “electronic communication service providers” and thus subject to Section 702’s general requirement to (secretly) disclose our data to the government.
Let us unpack this: Under current law, electronic communication service providers include Internet service providers such as Google, Facebook/Meta, and Microsoft. It also includes telecom providers such as AT&T and Verizon. Under the law, these big companies are routinely compelled to hand over billions of foreign communications in addition to vast amounts of Americans’ communications that are “incidentally” caught up in this surveillance net.
But the House Intelligence bill’s expansion to include “equipment” would cover, for example, any small or medium-sized business that simply provides Wi-Fi or stores data. This means that your business landlord, Airbnb host, hotel manager, or coffee shop barista will have a legal obligation to give the government any of your emails, texts, or phone metadata that ran through their equipment. Larger entities, such as data centers, would also be enlisted in spying on Americans.
To call the expansion of government-mandated spying to baristas and landlords “reform” shows the contempt the intelligence community has for Congress and the very idea of oversight. It is nothing less than a Trojan horse buried in the House Intelligence bill.
The good news, to quote the poet again, is that “every moment is a fresh beginning.” Now that these tricks have been spotted in the House Intelligence bill, House members will have a chance to toss out that bill and vote instead for the Protect Liberty and End Warrantless Surveillance Act, which passed the House Judiciary Committee with overwhelming support. That bill likewise reauthorizes Section 702, but also imposes real reforms that will better protect Americans’ privacy from our nation’s overgrown and (sometimes) deceptive intelligence apparatus.
Gene Schaerr, a Washington, D.C.-based attorney and former associate counsel to President George H.W. Bush, serves as general counsel to the non-partisan Project for Privacy and Surveillance Accountability.
It was T.S. Eliot who coined the phrase “wilderness of mirrors” in his poem, “Gerontion.” It was the saga of the CIA’s James Jesus Angleton’s betrayal by Soviet double-agent Kim Philby that made the phrase a byword in the shadowy world of intelligence.
In that world, deception, deceit, and disinformation are just tools of the trade. These are, no doubt, useful tools when dealing with all manner of criminals and agents of despotic powers. But this culture of deception seems to have infected the ability of the intelligence community – and a few of their champions on Capitol Hill – to play it straight with Congress and their constituents, the people intelligence agencies are meant to serve.
That culture of deception even seems to infect the so-called FISA Reform and Reauthorization Act, proposed this week by the House Permanent Select Committee on Intelligence, a bill that represents the wish-list of the intelligence community.
First, the bill’s marquee “reform” is the prohibition of only a handful of searches or “queries” of information about Americans under Section 702, the authority enacted by Congress to enable foreign surveillance but often used by the government for domestic spying. The type of search the bill would prohibit is “evidence-of-a-crime only” queries. But in 2022, out of over 200,000 queries of Americans’ data, there were only two instances of the FBI accessing Section 702 data under this rubric. And even if that prohibition were in place, the FBI could easily evade it simply by claiming in every instance that agents were looking for some (hypothetical) terror threat in addition to possible crimes. The bill’s non-reform “reform” would thus do nothing to stop the routine snooping on Americans, from 19,000 donors to a congressional campaign, to a House member and a \senator, a judge, and numerous protesters of the left and right. Nor would this “reform” prevent known abuses, such as the NSA agents who used this powerful search program to check out online dating prospects and potential tenants.
Even more outrageous is a problematic provision tucked away in this “reform” bill but not so much as mentioned in the committee’s report. Section 504 of the House Intelligence bill requires that those who have access to the “equipment that is being or may be used to transmit or store such communications” shall be treated as “electronic communication service providers” and thus subject to Section 702’s general requirement to (secretly) disclose our data to the government.
Let us unpack this: Under current law, electronic communication service providers include Internet service providers such as Google, Facebook/Meta, and Microsoft. It also includes telecom providers such as AT&T and Verizon. Under the law, these big companies are routinely compelled to hand over billions of foreign communications in addition to vast amounts of Americans’ communications that are “incidentally” caught up in this surveillance net.
But the House Intelligence bill’s expansion to include “equipment” would cover, for example, any small or medium-sized business that simply provides Wi-Fi or stores data. This means that your business landlord, Airbnb host, hotel manager, or coffee shop barista will have a legal obligation to give the government any of your emails, texts, or phone metadata that ran through their equipment. Larger entities, such as data centers, would also be enlisted in spying on Americans.
To call the expansion of government-mandated spying to baristas and landlords “reform” shows the contempt the intelligence community has for Congress and the very idea of oversight. It is nothing less than a Trojan horse buried in the House Intelligence bill.
The good news, to quote the poet again, is that “every moment is a fresh beginning.” Now that these tricks have been spotted in the House Intelligence bill, House members will have a chance to toss out that bill and vote instead for the Protect Liberty and End Warrantless Surveillance Act, which passed the House Judiciary Committee with overwhelming support. That bill likewise reauthorizes Section 702, but also imposes real reforms that will better protect Americans’ privacy from our nation’s overgrown and (sometimes) deceptive intelligence apparatus.
Gene Schaerr, a Washington, D.C.-based attorney and former associate counsel to President George H.W. Bush, serves as general counsel to the non-partisan Project for Privacy and Surveillance Accountability.
