Multiple covert government surveillance operations hoovering up Americans’ information without oversight have been exposed in the last year. Those not following closely may not have noticed.
Recent revelations about government spying have failed to make a major splash in Congress, the media or public discourse.
Stories about surveillance have broken through before — perhaps most notably in the case of Edward Snowden’s disclosures about the National Security Agency but also in the 1970s when the Senate’s Church Committee investigated abuses by multiple intelligence agencies.
What made those cases so much more salient? And how can privacy advocates get the public’s attention more consistently?
Over the past several months, lawmakers and reporters have revealed that the country’s intelligence agencies have been using broad executive authority and taking advantage of a loophole in the Fourth Amendment to obtain much more data than was previously known.
Three of these major discoveries, all made public by Sen. Ron Wyden’s (D-Ore.) office, concern the CIA gathering American data, a defense agency buying consumer data from a third-party broker and the Department of Homeland Security (DHS) participating in a program stealthily compiling money transfer records.
There are some major differences between these revelations and ones that have attracted public attention in the past.
First, details about the programs exposed recently are scarce. Essentially all that the public knows about the CIA’s program is that it was conducted under Executive Order (EO) 12333 authority and collected bulk data.
Little is known about what the analysts at the Defense Intelligence Agency did with smartphone location data they purchased or what DHS agents used money transfer receipts for.
Snowden’s disclosures, in contrast, included weeks of reporting on specific programs backed by leaked documents, making it easier for media and the public to latch onto the story.
Also in the case of Snowden, Congress was very involved, holding high-profile hearings and ultimately overhauling the Foreign Intelligence Surveillance Act (FISA) in the spring of 2015.
Recent disclosures have gotten less attention from Congress. No hearings have been held focused on the possible abuses of EO 12333, a Reagan-era framework for intelligence gathering, or on third-party data acquisitions. The bill most directly addressing them, the Fourth Amendment Is Not For Sale Act, has not gotten a glimpse in committee.
Wyden urged other lawmakers to follow his lead and start bringing up surveillance issues when they have tie-ins to other hearings or world events.
“Members of Congress should use every opportunity, particularly in open sessions, to ask questions … on those key privacy and surveillance issues,” he said. “I relate them to the national security issues that often dominate the headlines.”
The lack of action in Congress has frustrated privacy advocates.
A group of 45 civil liberties groups on Friday sent a letter to the chair and ranking member of the intelligence and judiciary committees in both chambers calling for Congress to flex its oversight power and act on legislation.
“Given the breadth of this type of surveillance and its roots in an unaccountable claim of inherent presidential power, Congress must act now or risk diminishing its own power to conduct intelligence oversight and to establish the rules governing intelligence surveillance of Americans,” wrote the groups, including the American Civil Liberties Union, the Electronic Privacy Information Center and the Project on Government Oversight.
The Hill has reached out to each relevant lawmaker for comment.
Surveillance issues could be forced into the congressional spotlight when Section 702 of FISA, the statutory basis for targeting foreign communications, comes up for reauthorization. But that will not happen until the end of 2023, and leadership in both chambers showed a willingness to stymie reforms by letting authorization of Section 215 of the act, used to collect business records, expire in 2020.
Just because exposing these programs in recent months has not brought widespread attention does not mean the efforts to rein them in have not been successful.
CIA Director William Burns during the Senate’s hearing on worldwide threats last week committed to requiring analysts to log when they search data reams that could include Americans under questioning by Wyden. Immigration and Customs Enforcement suspended its participation in the law enforcement money transfer tracking program before it even became public.
“That’s my experience doing heavy lifting on privacy work — if you’re willing to do your homework [and] make it clear what the issue is,” Wyden explained. “We get a fair amount done that way.”
There are several other factors that may contribute to surveillance stories failing to make a big splash in media and with the public.
One that could be relegating surveillance to a secondary issue is what Elizabeth Goitein, director of the Liberty and National Security Program at the Brennan Center for Justice, calls “outrage prioritization”
Former President Trump dominated headlines for years even before COVID-19 swept through the U.S. claiming almost a million lives. And now with attention drawing away from the pandemic, the public’s focus has understandably turned to Russia’s invasion of Ukraine.
“Attention can be a finite resource,” Goitein told The Hill. “Needless to say, I think surveillance abuses should be high up on the list, but there’s a lot going on right now. It’s hard to break through.”
“Unless there is a major privacy meltdown,” Wyden noted, “you’re dealing with the fact that every night on the news there’s a war going on that Americans are clearly concerned about.”
Another factor is that many Americans may now assume that their privacy is already shot.
“I think when the Snowden disclosures happened, people weren’t jaded yet as to surveillance abuses inside this country,” Goitein said.
Beyond knowledge of government surveillance, the public has become used to handing over private information to companies for access to platforms.
Advocates must work to distinguish the risks of data going to Google versus to an intelligence agency with coercive power, Goitein said.
“Facebook can try to sell you products, but Facebook can’t put you in jail,” Goitein explained. “Ideological prosecution or suppression isn’t in the monetary interest of these companies.”
The difficulty linking surveillance policies to impacts on people’s day-to-day lives may also explain why the public is less interested in government spying programs than climate change or higher gas prices.
Individuals trying to draw attention to the issue should try to explain surveillance in more human terms, lawmakers and experts who spoke with The Hill agreed.
“I think being able to show the causal connection between a type of technology and like a very concrete harm to individuals, whether it’s like deportation, incarceration [or] racial profiling … has been really important,” said Julie Mao, who works on curtailing surveillance of immigrants in her role as the deputy director of Just Futures Law.
“What’s really important is to drive this stuff to the real world,” Wyden said. “And that’s what I’ve always tried to do.”