The U.S. Senate last week approved a six-year extension to Section 702 of the Foreign Intelligence Surveillance Amendments Act (FISA), in a move that could put journalists at risk. Because people targeted by Section 702 are often of interest to the press as well as the NSA, journalists are more likely than most to have their communications inadvertently collected under the act.
As Jim Dempsey, a former member of the independent government advisory agency Privacy and Civil Liberties Oversight Board, told CPJ, “[U.S.] journalists are more likely than your average Joe” to talk to a foreign target and have the conversation picked up. Despite this, their voices were largely absent during the debate phase of the bill, which gives the NSA broad powers to collect the communications of foreign targets abroad from U.S. companies, without warrant.
The bill, signed into law by the president on January 19, ultimately passed without reforms that civil liberties advocates and a bipartisan group of representatives proposed to try to limit its impact on the privacy of people living in the U.S. Some privacy advocates even argued that by extending the law, the government enshrined some of its most controversial practices into the statute for the first time.
The most troubling aspect of Section 702 for the press is that while the NSA can use it only to target foreigners living outside the U.S., data from Americans on the other side of communications with a target–which could include anything from emails and calls, to group chats–is also gathered. Other government agencies, including the CIA and FBI, can then search some of that data, without a warrant, for information about Americans. Privacy advocates estimate that the agency could potentially collect tens of millions of records from Americans.
At a time when many journalists say they feel like it has become more difficult to protect their sources, concerns about surveillance are acute. The Obama administration used the Espionage Act to go after leakers more than all previous administrations combined, and Attorney General Jeff Sessions said last year that the current administration is investigating three times as many leak investigations as Obama.
Little public information is available about the number or type of backdoor searches taking place. However, national security reporter Marcy Wheeler speculated about how the information could be used, telling CPJ, “I’d be shocked if they weren’t using some of this in leak investigations.” She pointed out that a number of high-profile articles that have sparked leak investigations may have involved sources overseas.
Proponents of FISA frequently point out that under 702, the government cannot directly target anyone inside the U.S. or U.S. citizens living abroad. An explainer put out by Republicans on the U.S. House intelligence committee said that it is illegal to use Section 702 to target the communication of American journalists and added that no such violations have taken place.
The Privacy and Civil Liberties Oversight Board also said that it was extremely rare for the NSA to directly target an individual who turned out to be an American or U.S. resident. A report by the agency said that if the government mistakenly targeted an American, it would be required to stop immediately and would usually be required to delete the collected data.
“No one claims [Americans] are being targeted. Targeted is a term of art that means that your phone number is marked for collection by NSA and everything that comes out of your account will be put in an NSA database,” said Michelle Richardson, deputy director of the Freedom, Security, and Technology Project at the online civil liberties group, Center for Democracy and Technology. “But everyone in this database is speaking to someone on the other end, and that might be a U.S. journalist.”
Robert Deitz, a former general counsel for the NSA, defended this type of “incidental” collection as inevitable and at times valuable, especially if it indicates that terrorists or other high-level targets have contacts in the U.S.
“If Al-Qaeda is being targeted [the NSA is] going to pick up any conversation and it’s not as if the analyst says, ‘Wait a minute, I think we have a journalist on the line’,” Deitz, who is now a professor at George Mason University, told CPJ. He compared the situation to criminal investigations in the U.S., where a drug dealer might be wiretapped and his communications with anyone–including journalists–could be caught up.
The so-called “incidental collection” of U.S. communications, and how it can be used, was at the heart of the debate over reform. Under the current law, the FBI can query data collected under 702 for information about Americans in both criminal and national security matters. The proposed reforms included requiring a warrant for any search of the data that used identifying information about a U.S. citizen or resident.
“There was always a seductively fallacious proposition at the heart of 702, which is that you could selectively spy on people outside the United States without trampling on the privacy rights of U.S. people,” said Lee Tien, a senior staff attorney at the Electronic Frontier Foundation. “Because NSA does collect all this stuff and it sits there, the FBI gets to search it and they don’t need a warrant. First you didn’t comply with the Fourth Amendment or pushed it to its limit by collecting all this information, and then you are letting law enforcement search this communications info without a warrant.”
Deitz said that in cases when a wholly domestic communication is inadvertently captured, the NSA is supposed to delete it. In many cases, it may be required to hide the name of the U.S. person communicating with a target in intelligence reports. “The NSA is filled with lawyers who are deeply concerned about civil liberties,” he said.
While the debate in Washington around FISA focused almost exclusively on the communications of Americans, Section 702 could pose a greater risk to foreign journalists, who have none of the protections afforded to Americans. Section 702’s broad scope means that analysts need only to determine that a target has foreign intelligence information, which is defined as anything related to “foreign affairs.”
“ authorizes the government to conduct surveillance for anyone who may have information of interest. That means that foreign journalists covering topics of interest for the government would be natural targets,” said Alex Abdo, senior staff attorney at the Knight First Amendment Institute.
Richardson added, “Foreign affairs–that’s global warming, education, health issues–and the information is just relevant to those issues. It doesn’t mean that there is a bad guy on one end. A journalist would be a legitimate target if they were covering one of those issues.”
Deitz acknowledged that this type of surveillance of a foreign journalist under 702 might be possible under the law, but said, “I think it’s very unlikely.”
However, CPJ is aware of cases in which the U.S. apparently targeted foreign journalists and media outlets including the German magazine Der Spiegel’s 2013 report alleging that the NSA hacked into the internal communication system of Al-Jazeera; and the Intercept report in 2015 alleging that the U.S. government spied on Al-Jazeera’s Islamabad bureau chief, Ahmad Muaffaq Zaidan. In another case, a Wall Street Journal report included a claim that Pakistan’s current ambassador to the United Nations, Maleeha Lodhi, was surveilled during her previous career as a journalist.
Beyond direct targeting of individuals, Wheeler warned that Section 702 may allow for the possibility that the government could target VPNs, circumvent or weaken technical protections like encryption, or intercept traffic to a particular news site.
Far reaching surveillance, such as Section 702, has already had an impact on some U.S. journalists. In 2014, Human Rights Watch spoke with 46 journalists who discussed the chilling effects of large-scale surveillance, including sources drying up and the feeling that the reporters needed to act like spies.
Scott Shane, a national security reporter at The New York Times, told CPJ, “Probably every time I call overseas I tend to briefly think about NSA, and I guess on occasion there are instances when I resort to some other mode of communication or I’m careful about what I’m saying to someone because of the possibility that NSA might be listening.” Shane added, “There are stories that you don’t want to share with the U.S. government, and especially not ahead of publication.”