RUTHFULLY YOURS

• [T]he NSA’s surveillance network “has the capacity to reach roughly 75% of all U.S. Internet traffic”… the NSA, working with the FBI, engaged in the bulk collection of phone records of U.S. citizens’ phone records. Other programs may allow for data collection from Google, Facebook, YouTube and other platforms. These are the alleged capabilities that have been leaked to the media and government watchdog groups. One can only imagine what the federal government’s more secretive and advanced programs might be capable of collecting.
• We also must consider data collected by the CIA, the Defense Intelligence Agency, and from our constellation of spy satellites.
• Then there are the other federal security and surveillance agencies such as the FBI, the Department of Justice, the Department of Homeland Security and the Internal Revenue Service, to name but a few.
• [I]t is time for Congress to fully update the laws surrounding data collection and privacy. This also would give us the ability to see what still works, determine best practices to protect American security and civil liberties, and to end the things that do not — especially those that leave open a backdoor for abuse.
• [W]e must examine whether the government has deferred to the rights of American citizens, or has utilized perceived openings to expand its reach and power.
• Law enforcement has acted in a way that enhances its capabilities and erodes the rights of American citizens. Three examples include the FBI’s use of Section 215, where the FBI can get secret court orders for business records.
• A second example is the use given the FBI of National Security Letters (NSLs). These can be issued by the FBI without a court order. The use of NSLs has expanded massively. In 2000, about 8,500 NSLs were issued. From 2003-2006 that number increased to 192,000. “Sneak and peek” warrants are also now being used more extensively. Without any notification, these allow law enforcement to raid and search someone’s home and computers, among other private property. The target may not be notified of the search for months.
• In an investigation involving conservative attorney Victoria Toensing, the FBI used the sneak and peek authorization to gain access to personal records without notifying her, even though she was not a target of any investigation. After 18 months, the Justice Department notified her the case was being closed without ever identifying who was being investigated or even what the issue being investigated was.
• With the advent of new technologies, and passage of legislation after 9/11 that possibly has not aged well, the legal framework protecting American citizens’ rights has been shredded. It seems abundantly clear that our government at multiple levels likely abused its powers, and the Select Subcommittee on Weaponization has a tremendous opportunity to set things right.

Recently the U.S. House of Representatives created the new Select Subcommittee on the Weaponization of the Federal Government, chaired by Congressman Jim Jordan, a Republican from Ohio. There are at least three areas where this Subcommittee needs to do extensive research. They include but are not limited to:

• The scope and extent of the information that the various federal government agencies collect and store.
• The restrictions and their effectiveness that are built into the process to protect the rights of American citizens.
• Evidence that government policies may have been broken and individuals or organizations may have been targeted inappropriately by the federal government.

A comprehensive review should then result in proposed legislation that will better protect American citizens from governmental abuse while at the same time enable government agencies to effectively do their work. How do we fix a system that may be broken, keeps America safe, and protects American civil liberties? It has to be done similar to the work Congress did after the 9/11 attacks, but using the lessons learned in the time since then to prevent government abuse.

This new Subcommittee should start by evaluating the tools various government agencies use to collect information, what the rules are for collection, how much information they collect, and what safeguards are in place to ensure agencies work within their legal boundaries. Understanding the scope of what is going on provides an excellent starting point.

Our foreign intelligence agencies are masters at collecting data. The National Security Agency (NSA), it has been revealed, is able to collect a large amount of data from around the world through its surveillance techniques. According to a Wall Street Journal report from 2013, the NSA’s surveillance network “has the capacity to reach roughly 75% of all U.S. Internet traffic”. The Electronic Frontier Foundation reported in 2011 that the NSA, working with the FBI, engaged in the bulk collection of phone records of U.S. citizens’ phone records.

Other programs may allow for data collection from Google, Facebook, YouTube and other platforms. These are the alleged capabilities that have been leaked to the media and government watchdog groups. One can only imagine what the federal government’s more secretive and advanced programs might be capable of collecting.

In addition, the NSA, while maybe the largest collector of data in the intelligence community, is not the only collector. We also must consider data collected by the CIA, the Defense Intelligence Agency, and from our constellation of spy satellites.

Then there are the other federal security and surveillance agencies such as the FBI, the Department of Justice, the Department of Homeland Security and the Internal Revenue Service, to name but a few. Indeed, with all its capabilities, the stream of data collected by the federal government might be never-ending.

After 9/11, Congress authorized additional collection and sharing of data between various government and private sector actors. An extensive audit of how these authorities and tools are being utilized, especially as new technologies and tools have been developed, is probably long overdue.

If the government has this massive treasure trove of information, what are the protections built into the systems regarding the legal rights of the American citizen? With foreign intelligence collection, the rules are straightforward. Data collection on Americans by our intelligence community is strictly prohibited. Except under the most stringent exceptions, through the Foreign Intelligence Surveillance Court (FISA Court), data collection on Americans cannot be done. Inadvertent foreign collection on Americans must be destroyed.

Within our borders, the intelligence community, again with the exception of FISA Court approval, is prohibited from collecting information on Americans. Domestic law enforcement has a broad legal framework for information collection approved by courts. But whether one is discussing foreign collection or domestic collection, there are probably major gaps in the legal framework for what information government agencies are permitted to collect and how they act on that collection. Wiretap laws were designed and written considering the technology of the day, mostly land lines. How do those protections and rules apply to the current ways data travels? Are they open to acquisition by today’s new technologies or not, and if so, what are the rules governing what happens to that data?

Again, with the massive advances in the way we communicate, and the way governments can capture data, it is time for Congress to fully update the laws surrounding data collection and privacy. This also would give us the ability to see what still works, determine best practices to protect American security and civil liberties, and to end the things that do not — especially those that leave open a backdoor for abuse.

Finally, with all the developments over the last 30 years, and the failure of government to update legal frameworks, we must examine whether the government has deferred to the rights of American citizens, or has utilized perceived openings to expand its reach and power.

The evidence seems overwhelming. Law enforcement has acted in a way that enhances its capabilities and erodes the rights of American citizens. Three examples include the FBI’s use of Section 215, where the FBI can get secret court orders for business records. “The Foreign Intelligence Surveillance Court must issue the order if the FBI so certifies, even when there are no facts to back it up,” according to the Electronic Frontier Foundation.

A second example is the use given the FBI of National Security Letters (NSLs). These can be issued by the FBI without a court order. The use of NSLs has expanded massively. In 2000, about 8,500 NSLs were issued. From 2003-2006 that number increased to 192,000. “Sneak and peek” warrants are also now being used more extensively. Without any notification, these allow law enforcement to raid and search someone’s home and computers, among other private property. The target may not be notified of the search for months.

But at a tangible level, how does this play out? The Department of Justice’s Inspector General report on the FBI’s performance in the “Russiagate” investigation provides a prime example. Glenn Greenwald, then writing for The Intercept, characterized the report, noting in 2019:

“In sum, the IG Report documents multiple instances in which the FBI – in order to convince a FISA court to allow it spy on former Trump campaign operative Carter Page during the 2016 election – manipulated documents, concealed crucial exonerating evidence, and touted what it knew were unreliable if not outright false claims.”

In an investigation involving conservative attorney Victoria Toensing, the FBI used the sneak and peek authorization to gain access to personal records without notifying her, even though she was not a target of any investigation. After 18 months, the Justice Department notified her the case was being closed without ever identifying who was being investigated or even what the issue being investigated was.

The work ahead for the Select Subcommittee on Weaponization is huge. It seems the collection of data by our law enforcement and intelligence communities is massive, much larger than any of us would have imagined even just a few short years ago. With the advent of new technologies, and passage of legislation after 9/11 that possibly has not aged well, the legal framework protecting American citizens’ rights has been shredded. It seems abundantly clear that our government at multiple levels likely abused its powers, and the Select Subcommittee on Weaponization has a tremendous opportunity to set things right.

Peter Hoekstra was US Ambassador to the Netherlands during the Trump administration. He served 18 years in the U.S. House of Representatives representing the second district of Michigan and served as Chairman and Ranking member of the House Intelligence Committee and is a Distinguished Senior Fellow at Gatestone Institute.