The President's accusations of wiretapping at Trump Tower have launched a news cycle focused on surveillance
To understand the story, one must understand the terms involved
A flurry of stories surrounding President Donald Trump has brought the US intelligence community’s massive surveillance capabilities to the forefront of the political conversation.
Whether the topic is ex-national security adviser Michael Flynn’s leaked contacts with Russian Ambassador to the US Sergey Kislyak, Trump’s unsubstantiated claim that former President Barack Obama wiretapped Trump Tower or House Intelligence Committee Chairman Devin Nunes’ recent pronouncement that some of Trump’s communications may have been swept up, to understand the story, one must understand the terms involved.
Here are a few terms to know:
National Security Agency
The National Security Agency, or NSA, is a US intelligence organization primarily tasked with the collection and analysis of foreign signals intelligence – communications, generally through electronic means, be it a phone call, an email or something else entirely. This can also include metadata – the information about the communications themselves – like when, where and to whom a message is sent or received.
The NSA’s mandate is to deal with foreign intelligence targets, like militants overseas or members of another government.
It is headquartered in Maryland, but its presence is felt globally, scooping up and processing information from people located virtually anywhere.
Its activities are covert, wide-ranging and linked to any number of US security efforts.
’Masking’ and ‘unmasking’
NSA has wide discretion to conduct surveillance on people outside of the US, but there are supposed to be legal barriers to snooping on US citizens. If the NSA picks up communications from a US citizen in the course of monitoring a foreign national, it is practice to “mask” the identity of the US person. Additionally, the identification of a US citizen mentioned in discussions between two foreign nationals is supposed to be masked.
NSA Director Mike Rogers explained Monday that the agency would instead refer to the masked person as “Individual A, Individual B” and so forth.
But if the NSA or another agency with which NSA is sharing the information, like the FBI, wants to identify the person, it can do so if it believes it’s necessary in the course of investigations or have probable cause to indicate there may be criminal conduct involved. Rogers said the number of people who have unmasking authority was limited in the NSA to about 20 people, while FBI Director James Comey said there were necessarily many more in the FBI who could do so because the agency’s work involves domestic affairs.
Nunes said Trump’s communications and those of people involved in his campaign may have been collected by the government through “incidental collection.”
That means that in the course of monitoring for foreign intelligence purposes, the government may have caught the private communications of then President-elect Trump. But as noted later Wednesday by Democratic Rep. Adam Schiff, the ranking member on the House Intelligence Committee, incidental collection could refer simply to the mention of a US citizen, not that their communications were collected.
“If we are listening to two foreign spies, for example, talking to each other on foreign soil or two representatives of a foreign government, and they mention a US person – that is incidental collection,” Schiff said.
The Fourth Amendment
Passed alongside nine other amendments together known as the Bill of Rights, the Fourth Amendment is meant to curtail “unreasonable” searches from the government and require warrants based on probable cause for searches.
It is the main constitutional right that the US surveillance state butts against.
The Foreign Intelligence Surveillance Act of 1978 established the Foreign Intelligence Surveillance Court (FISC), a secretive court that can approve or disapprove spying requests. Its authority grew following the Sept. 11 terrorist attacks.
After The New York Times revealed surveillance taking place by former President George W. Bush’s administration without even the approval of FISA, a slate of amendments were passed in 2008. Then-Sen. Barack Obama was among those who drafted the language and voted to approve the bill. As President, Obama also signed its renewal in 2012.
Former NSA contractor Edward Snowden leaked documents in 2013 exposing US surveillance activities and techniques, leading to the passage of the USA Freedom Act in 2015. The law implemented a set of reforms to FISC, which as of 2016 had rarely turned down requests from the government.
Additionally, FISA is often used not just to refer to the law itself but authorized surveillance under it. Similarly, the terms FISA orders, FISA warrants, etc. are used regularly.
In order to invade a US citizen’s privacy for a search or seizure, law enforcement is legally required to have a warrant.
But as mentioned above, the Bush administration engaged in surveillance without even FISA approvals – what has been termed warrantless wiretapping. Incidentally, Comey, who worked in the Bush administration, testified before Congress in 2007, speaking publicly about the Bush White House’s attempts to implement domestic surveillance.
Laws passed following the revelation have attempted to narrow the scope of warrantless wiretaps.
Section 702 of FISA is set to expire at the end of this year unless Congress votes to renew it and Trump signs that renewal into law.
It was one of the changes to FISA introduced in 2008 and establishes rules for the Justice Department and the director of national intelligence together target people located outside the US.
One of the initial findings from the Snowden leaks as reported by Glenn Greenwald, then of The Guardian, showed the existence of the PRISM program, which used this section of FISA as its legal underpinning.
Supporters, like the Republican leadership of the House Intelligence Committee, have credited it with saving lives and said it only affects foreigners, while opponents of its use, like Rep. Ted Lieu, have said it allows unconstitutional searches of US citizens.
Government Communications Headquarters is essentially the equivalent to the NSA in the United Kingdom.
It entered the news recently on the US side of the pond when White House press secretary Sean Spicer read an uncorroborated Fox News contributor’s report that the Obama administration asked GCHQ to wiretap Trump Tower. In turn, the GCHQ issued a rare public statement rebuking the report. Fox News anchors have since disavowed Napolitano’s claims.
The Five Eyes
The United States has an intelligence alliance with four other English-speaking nations: The United Kingdom, Canada, Australia and New Zealand.
The five nations share intimate intelligence as part of what they call the “Five Eyes” agreement.
In his appearance before the House Intelligence Committee on Monday, Rogers said asking GCHQ to wiretap Trump would be at odds with the Five Eyes agreement.