Privacy and civil rights groups have been warning for years about the potential abuse of surveillance authorities, but only now are certain Republican lawmakers waking up to that possibility—fearing that they’ve been targeted.
During a Senate Judiciary Committee hearing Tuesday focused on renewing Foreign Intelligence Surveillance Act (FISA) authorities, including Section 702, which expires at the end of the year, Sen. Lindsey Graham (R-S.C.) demanded to know if he personally has been spied on.
“Is it possible to find out if I, Lindsey Graham, was incidentally collected on talking to a foreign leader abroad?” Sen. Graham asked a panel of intelligence community witnesses hailing from the NSA, the FBI, and the Office of the Director of National Intelligence.
Section 702 surveillance allows the government to target individuals abroad and collect their communications. That data is then stored in NSA databases that can, under certain procedures, be queried by federal investigators across several agencies.
Since the NSA casts such a wide net on a target, however, American citizens often have their communications incidentally collected and stored, too. The warrantless collection could implicate the privacy of US citizens who speak to individuals abroad or even US lawmakers conducting foreign policy.
Although the agencies have to abide by secret minimization procedures when dealing with collected US persons’ data, lawmakers were skeptical on Tuesday about the robustness of those guidelines—particularly after the Michael Flynn affair.
A former National Security Adviser, Flynn was brought down in February after it was revealed he was discussing sanctions last year with Russian Ambassador Sergei Kislyak. Since Kislyak was stateside at the time, it’s likely the conversation was scooped up under a Title I FISA warrant, and not Section 702. Still, the episode left lawmakers more conscious about the consequences of foreign surveillance that licks Americans, too.
It was revealed during Tuesday’s hearing that Sen. Graham had inquired with the ODNI “months ago” about whether or not his communications with foreign officials had been collected. “Should I be worried about that conversation falling in the hands of political people that may be used against me?” he asked.
“As a career intelligence professional, Senator, I don’t think you shouldn’t be concerned,” Bradley Brooker, the ODNI’s Acting General Counsel responded. Brooker told Graham that the agency was working on responding to his inquiries.
Intelligence officials already do periodically brief Congressional leadership on instances of lawmakers having their communications incidentally collected, and their identities unmasked in spy reports. Graham admitted he has not been informed through that channel.
The senator’s line of questioning took him over his allotted time in the hearing, but the committee’s chairman Sen. Chuck Grassley (R-Iowa) allowed Graham to continue, citing the important of the probing.
“I wish my colleagues would appreciate what he’s trying to do here and give him a little extra time,” Grassley implored.
It was a teaching moment for Democrats on the panel, who noted that their GOP colleagues appear more concerned about spying on themselves than spying on the vast American citizenry.
“Did you hear the exchange with Senator Lindsey Graham?” Sen. Dick Durbin (D-Ill.) said. “Did you note the emotion in his voice as he thought of the possibility that his privacy was being invaded by his government?” Durbin went on.
“But what about the privacy of the Americans that are not in this room?” he added.
Durbin noted that the ODNI can’t even provide an answer to the most basic question of how many Americans have their communications incidentally collected under Section 702.
“How are we supposed to believe that transparency is really the guiding principal, and we have such great data collection if you can’t even identify for us how many American have been innocently swept up into this effort?” Durbin asked.
Sen. Sheldon Whitehouse (D-R.I.) then submitted a question for the record, demanding that the spy agencies on hand provide lawmakers with secret details of internal safeguards intended to prevent Section 702 abuse.
“Get your heads together and create a document that explains for us all the different way in which you…police the use and abuse of 702 information,” Whitehouse said. “You ought to be able to give it to us.”
Along with the Senate Judiciary Committee, the Intelligence Committee also holds jurisdiction over FISA reauthorization. Republican members of the intel panel have introduced legislation that would grant a clean extension of Section 702, and remove any future sunset provisions.
Sen. Dianne Feinstein (D-Calif.)–the ranking member of the Judiciary Committee, a member of the Intelligence Committee, and a reliable spy hawk–said Tuesday the proposal was a non-starter.
“I believe any reauthorization should include a sunset provisions, and without it, it will not have my support,” she said.
