Over the holiday break, Congress was up in arms over a Wall Street Journal report revealing lawmakers' private conversations with Israeli officials and interest groups were swept up by the National Security Agency during the US-Iran nuclear negotiations. But these aren't the only congressional communications collected by the NSA.
How vast is the dragnet? On what other national policy matters has NSA surveillance impacted Members of Congress? A congressional investigation remains long overdue, but these revelations should prompt Congress to create a Church Committee for the 21st Century.
Why Were the Communications Collected?
The communications were partly collected by the ubiquitous surveillance authorized by Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333. The authorities don't just collect the communications of a specific suspect or target like with a FISA or probable cause warrant. Section 702 and EO 12333 collect communications about broad swaths of topics and categories—even the entire set of communications exiting a city or entire country. Indeed, even communications between two Americans routed abroad (a not uncommon occurrence given the structure of the Internet) may also be collected.
Innocent American (including Congressional) communications will be collected even if the NSA is targeting legitimate foreign intelligence targets. That's a huge—Constitutional—problem. After conducting a sample of Section 702-collected communications a federal judge found that millions of innocent Americans' communications ended up in NSA databases. It shouldn't surprise anyone that many communications between a lawmaker or their staff and foreign leaders (or their staff) might be collected by the NSA.
If lawmakers are surprised about the communications uncovered by the Wall Street Journal, they may also be surprised to learn that discussions with entities like the International Atomic Energy Agency and the United Nations are also probably collected. Even discussions about foreign trade topics with foreign partners may also be in NSA databases. That's because these broad categories and topics are listed as priorities in the classified version of the National Intelligence Priorities Framework (NIPF)—a document where the President prioritizes what countries and topics the intelligence community should report on. Priorities don't only include Chinese, Iranian, or North Korean leaders.
Congress Must Demand (Public) Answers
Ubiquitous collection is a fact of the NSA's surveillance regime. The NSA's surveillance methods have been causing near-monthly controversy since 2013 over the collection of innocent users' phone calls, emails, address books, buddy lists, calling records, online video game chats, financial documents, browsing history, text messages, and calendar data. The newest controversy dealing with Israeli communications should prompt Congress to ask serious questions.
The House Intelligence Committee and Oversight Committee is looking into NSA data collection, but lawmakers should also be asking their own questions and demanding their own briefings. Why wasn't the Intelligence Committee notified of the collection of Congressional communications? Other key questions lawmakers may want to ask include:
- Approximately how many communications or transactions involving Senators, Representatives, or their staff were subject to Section 702 or EO 12333 surveillanceon a yearly basis?
- How many times, if any, were lawmakers notified when their name was included in a communication or revealed to the Executive branch in summaries of intercepted communications?
- How many times, if any, were lawmakers information minimized by the NSA and disseminated (whether to the Executive branch, international partners, etc.) outside of the NSA?
- How many communications seized or shared involve policymakers' communications with constituents, or other Americans or organizations?
- What are the exact policies and guidelines for when the intelligence community can collect communications by lawmakers or their aides, and what happens to that information after it is collected?
In response to recent concerns, NSA officials will likely tell Congress that Americans' information is "minimized"—a fancy legal term for blacking out, or "masking," a name. But at any time the NSA can undo the deletion if someone decides that doing so is necessary to understand anything related to foreign intelligence, which is broadly defined in law.
Nor is the NSA the only agency implicated. The FBI can search for an American name in databases even without any probable cause to review your communications, which is commonly referred to as the "702 backdoor search" loophole.
The NSA may also tell policymakers that communications between members and foreign targets are destroyed upon interception, but this doesn't include staffers and doesn't appear to be a rule in any of the publicly released minimization policies.
These non-answers and deflections ultimately reveal what many lawmakers already know: the Intelligence Committees are not acting as diligent overseers. Many lawmakers have been skeptical about the modern Intelligence Committees’ ability to properly investigate Intelligence agencies and their practices. Such skepticism must be addressed immediately as one of the government’s main surveillance authorities is scheduled to expire at the end of 2017.
Congress must heed the call of lawmakers like Vice President Walter Mondale, John McCain, and over a dozen former Church Committee staffers—including its Former Chief Counsel Fritz Schwarz—to create a separate Congressional investigation into the signals intelligence programs revealed by Edward Snowden. Only after establishing meaningful transparency can the real work on substantive reform finally begin.
These latest revelations of spying on the people’s representatives in Congress expose how little policymakers still know about mass surveillance, and how many questions they have yet to ask. Congress must take this opportunity to delve deeply into the Executive Branch's surveillance in order provide a full accounting to the public, to our allies, and to its own Members.