Dems urge changes to 'backdoor search loophole,' citing Flynn case
The government’s recording of former national security adviser Michael Flynn’s telephone call with Russia's ambassador to the U.S. appears set to become a flashpoint in the fight over reauthorization of a controversial part of U.S. surveillance law.
The incident — which prompted Flynn’s resignation in February — is a sign that significant reforms are needed, a dozen Democrats said Tuesday.
Changes are needed to prevent warrantless collection of U.S. persons’ data, currently permitted under a commonly used loophole in the law, Rep. Ted Lieu (D-Calif.) argued in a letter to House Intelligence Committee chair Devin Nunes (R-Calif.).
The part of the Foreign Intelligence Surveillance Act (FISA) that allows for such collection — known as Section 702 — expires at the end of this year, setting up a potentially bruising congressional fight over reauthorization.
“While it’s unclear what exact authority was used to acquire General Flynn’s communications, we agree that warrantless seizures and searches of Americans are unconstitutional,” Lieu wrote, noting that Nunes himself had expressed concern over the collection of Flynn’s calls.
“Since its inception, FISA's Section 702 has too often been used as a vehicle to engage in activities violating the Fourth Amendment rights of Americans. We urge you to join us in reforming the law to ensure that the activities of our intelligence agencies do not violate our constitutional rights.”
Democrats are no fans of Flynn — some have gone so far as to call him a traitor — but if he was surveilled under 702, he would be seen as the poster child for the issue.
And Republicans, despite by and large having supported the law in the past, have decried the surveillance.
“The big problem I see here is that you have an American citizen who had his phone calls recorded,” Nunes told reporters earlier this month.
In February, Flynn was forced to resign after The Washington Post reported that he had misled Vice President Pence about the contents of a Dec. 29 phone call with Russian Ambassador Sergey Kislyak.
The Justice Department reportedly uncovered the discrepancies when it compared Flynn’s public account with transcripts of the call, apparently obtained through routine surveillance of Kislyak.
Experts widely believe that the recordings were legal under 702, which permits warranted spying on foreign persons within U.S. borders. Flynn appears to have been caught up incidentally. The U.S. government was then able to legally use that information under FISA.
The law allows intelligence agencies to conduct so-called backdoor searches of Americans’ communications — without a warrant — if the intended target of the surveillance was not a U.S. citizen.
The loophole outrages civil liberties advocates, who say it violates the Fourth Amendment. Sen. Ron Wyden (D-Ore.) has long demanded for a public accounting of the number of Americans caught up through inadvertent collection.
Supporters say it is a critical tool in identifying and disrupting terrorist plots at home and abroad.
“When the Intelligence Community acquires the communications of targets abroad, among the most critical issues is to determine if they are communicating with persons in the United States,” Nunes wrote in a letter to colleagues last June.
But the chairman is now hinting that the fight to reauthorize Section 702 may be more complicated than expected thanks to the public disclosure of a U.S. citizen apparently surveilled under the inadvertent collection provision: Flynn.
“I think it’s very problematic,” he told reporters earlier this month.
“I’ve expressed this concern to [the intelligence community]. We have sent them many follow-up questions as it relates to intelligence that’s been collected. And we expect prompt answers.”
Long the purview of surveillance wonks, the backdoor search loophole has also gained national prominence in recent weeks thanks not only to Flynn but President Trump’s unfounded allegations that former President Obama had Trump's "wires tapped."
“I'd bet a good lawyer could make a great case out of the fact that President Obama was tapping my phones in October, just prior to Election!” Trump said in a tweet last week.
While it’s unlikely that Trump or his associates were wiretapped directly — congressional intelligence leaders say they have seen no evidence and legal experts call the scenario far-fetched — it is possible that agencies could have inadvertently collected and then searched then-candidate Trump’s phone records.
The reauthorization of the law is a top priority for the intelligence community.
“I’m not sure that there’s a program in the national security area that has a more robust compliance regime than FISA and certainly Section 702,” said Greg Brower, the head of the FBI’s office of congressional affairs.
“There’s compliance requirements and review after review after review.”