US Lawmaker Cited NYC Protests in a Defense of Warrantless Spying

At a private meeting about the reauthorization of a major United States surveillance program late last year, the Republican chairman of the US House Permanent Select Committee on Intelligence (HPSCI) presented an image of Americans protesting the war in Gaza while implying possible ties between the protesters and Hamas, an allegation that was used to illustrate why surveillance reforms may prove detrimental to national security, WIRED has learned. Sources who attended the meeting say it alarmed Republicans who are pursuing new limits on the US government’s power to warrantlessly access the communications of US citizens.

In December, as many as 200 Republican staffers gathered behind closed doors to hear a presentation by House Intelligence chair Mike Turner, one of several such meetings that day aimed at shoring up support for a US surveillance program known as Section 702.

House lawmakers were expected to cast votes the following day to determine which of two rival bills would become law. While both aimed to reauthorize the 702 program, they shared little else in common. The first bill was backed by Turner and Jim Himes—HPSCI’s leading Democrat—and had the support of the US intelligence community. The second, a bill chock full of privacy reforms, had been introduced by the House Judiciary Committee and was opposed by the Biden White House.

While Turner addressed the Republican staffers, representatives from the intelligence community conducted their own briefing with Democrats on Capitol Hill. Both meetings were designed to dissuade House members from supporting the privacy reforms offered under the Judiciary bill—chiefly among them, an amendment that would force the FBI to obtain warrants before accessing the communications of Americans collected under the 702 program—phone calls, emails, and text messages intercepted by US spies in the process of eavesdropping on foreigners overseas.

The briefing conducted by Turner at roughly 2 pm EST on December 11 carried on for more than an hour. Roughly 15 minutes into the presentation, two slides were introduced referencing American protesters. The implication, sources present for the briefing tell WIRED, was that the demonstrators were suspected of having ties to Hamas, which the US government classifies as a terrorist organization.

A spokesperson for the House Intelligence Committee said in an email on Friday that the protesters depicted in the slide had “responded to what appears to be a Hamas solicitation.”

A WIRED review of the slides shown by Turner casts doubt on that claim. Notably, while the two slides were portrayed as being related to a single protest in November outside Senate majority leader Chuck Schumer’s Brooklyn residence, WIRED has since learned that the slides reference two separate events that occurred nearly a month apart.

What’s more, the allegation that the protesters were following Hamas’ lead is based on a post on X that contains false information about who organized one of these two events.

Three Republican staffers who attended Turner’s briefing that day tell WIRED the images immediately set off alarms. Section 702 authorizes the government to surveil foreigners located physically overseas, they said, but not Americans or individuals on US soil. Even while Turner spoke, a few staffers began privately debating whether what Turner described was a lawful use of the program.

While eavesdropping on foreigners is permitted, doing so for the explicit purpose of gaining access to an American’s communications—a practice commonly referred to as “reverse targeting”—is strictly forbidden.

"At the outset of the presentation, he’s running through slides, making his case for why 702 reauthorization is needed,” a senior Republican aide tells WIRED. “Then he throws up that photo. The framing was: ‘Here are protesters outside of Chuck Schumer’s house. We need to be able to use 702 to query these people.’”

Another aide in attendance said: “The sentiment was that [Turner] wanted to know if these people were talking to Hamas. That’s how I interpreted why he brought up those slides.”

Jeff Naft, the HPSCI spokesperson, says the purpose of the slides was to illustrate that, even if the protesters did have ties to Hamas, they would “not be subject to surveillance” under the 702 program. “702 is not used to target protesters," he says. “702 is used on foreign terrorist organizations, like Hamas. Chairman Turner’s presentation was a distinction exercise to explain the difference between a US person and Hamas.”

WIRED’s sources, who are not authorized to discuss closed-door briefings and requested anonymity to do so, describe this as a conflation of two separate issues—a tactic, they say, that has become commonplace in the debate over the program’s future. “Yes, it’s true, you cannot ‘target’ protesters under 702,” one aide, a legislative director for a Republican lawmaker, says. “But that doesn’t mean the FBI doesn’t still have the power to access those emails or listen to their calls if it wants.”

Under the 702 program—authorized under the Foreign Intelligence Surveillance Act (FISA)—the term “target” refers to foreign individuals whose communications are primarily sought after by US spies. But a person needn’t be a “target” (or a foreigner, for that matter) for the US government to intercept their calls or emails. Nor does a person need to be a “target” for the FBI to access and review those conversations, a practice that privacy advocates have come to call a “backdoor search.”

The government’s claim that 702 is not used to target protesters may be misleading to those not steeped in the program’s specifics. Between 2020 and early 2021, the FBI conducted “tens of thousands” of queries related to “civil unrest” in the United States. Even had those queries been lawful, the FBI would never have referred to those Americans as “targets.” For people whose communications are being accessed, it’s a distinction without much of a difference.

A Biden administration official tells WIRED that it was made clear at the briefing that individuals “can never be queried due to the fact that they participated in a protest.” Any suggestion to the contrary, they said, is inaccurate. “US person queries of lawfully collected 702 data are based on information such as contact with a foreign terrorist, since such queries must be reasonably likely to return foreign intelligence information,” the official says.

The bar for justifying a query, though, is far below “contact with a terrorist,” according to Elizabeth Goitein, a senior director at the Brennan Center for Justice at the NYU School of Law. “The law’s definition of ‘foreign intelligence’ is extremely broad and sweeps far beyond matters relating to terrorism or espionage,” she says.

A query for an American’s communications may be allowed, for instance, if it’s deemed necessary for “purposes of security," Goitein says, noting that the term “security” isn’t defined. The information sought by the government can merely be necessary to understand the “conduct of foreign affairs,” something that the Center for Strategic & International Studies says may apply to “almost any activity.”

Last year, the FISA court approved three definitions of foreign intelligence information, adds Goitein. One of them is simply information related to “foreign governments and related entities.”

James Czerniawski, a senior policy analyst at Americans for Prosperity, a libertarian think tank, says the idea that US protesters could be queried under 702 without a warrant, simply based on accusations of harboring overseas ties, represents “an affront to Americans’ privacy.”

"It manifests why trust has eroded in the very institutions meant to protect us, and it represents a material threat to the millions of Americans who will undoubtedly soon join protests,” Czerniawski says, “no matter what happens in November.”

Beyond what the slides represented to Turner’s audience at the time, they are more controversial now for reasons that weren’t quite apparent during that December 11 briefing.

The first of Turner’s slides includes a photograph of anti-war activists sitting cross-legged at an intersection in Brooklyn’s Park Slope neighborhood, arms interlocked. The second slide features a tweet by Matthew Foldi, a conservative staff writer at the Washington Free Beacon. It also relates to a protest outside of Schumer’s home. The implication of Foldi’s tweet, sources say, was that the protesters in both cases had gotten their marching orders overseas from an organization Foldi referred to as a “Hamas front group.”

Regardless of whether Turner and his staff bought into the claim, there are several issues with this portrayal, and HPSCI had no evidence on hand to support the allegation—not to staff members in December and not last week when questioned by WIRED about the veracity of the claim.

The first of the two slides, showing protesters sitting in the street, can be traced back to a demonstration on October 13, organized by the US nonprofit Jewish Voice for Peace. Thousands of Americans had attended protests across New York City that day.

According to a local news report, several rabbis as well as descendants of Holocaust survivors were among the 57 people arrested for blocking traffic near Schumer’s home. New York State Assembly members Zohran Mamdani and Marcela Mitaynes were also present and were issued citations for acts of civil disobedience. Statements gathered from journalists at the scene show the demonstration was being closely monitored by the FBI’s New York field office. But aside from a few “scuffles” with counter-protesters earlier in the day, there are no reports of the protests turning violent.

Sean Vitka, a policy director at the civil-liberties-focused nonprofit Demand Progress, says Congress enacted FISA specifically to stop the FBI from spying on protesters. "Spying on protesters is ice in the heart of democracy—and if someone trolling the ‘other side’s’ protest on Twitter is cause to spy on those protesters, we have an enormous problem,” he says.

The second slide in Turner’s presentation featured the tweet by Foldi, which likewise references a march on Schumer’s home. That protest, however, took place nearly a month after the first. HPSCI’s claim that Hamas may have incited the demonstration appears solely based on this remark by Foldi, who claims the protesters were responding to a call issued by a pro-Palestinian group known as Samidoun.

However, that wasn’t the case.

The only evidence of the Palestinian group’s involvement is that the protest was included on a calendar maintained by Samidoun on its website. The calendar currently lists more than 5,000 protests that have taken place around the world, from Australia and England to Finland, Nigeria, Iceland, and Japan. The same site bears a disclaimer that notes the list includes protests not organized by Samidoun, and visitors are encouraged to submit details about events being organized in their respective countries.

Foldi went on to portray Samidoun as having been “banned from Germany and booted from numerous payment processors over suspicions of acting as a Hamas front group.”

A German branch of Samidoun was dissolved in November, but not as a result of evidence it had ties to Hamas. Rather, the group, formed to protest the imprisonment of Palestinians, was accused of spreading “anti-Jewish conspiracy theories,” an allegation that the organizers vehemently deny, while noting their ranks boast many Jewish members.

For obvious reasons, Germany has some of the strictest antisemitism laws in the world, enabling Berlin to issue blanket bans against protests aimed at raising awareness of the humanitarian crisis in Gaza. Such bans would be unlawful in the United States under its constitution.

Branches of Samidoun have also faced bans by payment processors overseas. This also happens frequently in the United States. The bar for being banned by a payment processor is notably far below having terrorism ties.

Payment processors last year severed ties with a French branch of the group, known as Collectif Palestine Vaincra, a result of the French government attempting to dissolve the organization under allegations it was “anti-Jewish.” This attempt was blocked by a French court in May, however, after it rules the Macron government’s allegations of “antisemitism” against the group were “unfounded.”

Neither Foldi nor Samidoun immediately responded to requests for comment.

That the chairman of a US intelligence committee chose such questionable examples during a presentation aimed at garnering support for a US surveillance authority gave many Republican staffers pause.

None of the House sources who spoke to WIRED work for lawmakers that could be credibly accused of showing anything but support for the Israeli government. Yet all agreed the issue of domestic surveillance transcends political ideology—one of the purest examples of the “pendulum politics” that define America’s two-party system.

“What we know for sure is this,” a Republican aide says, “However the government decides to treat left-wing protesters today, that’s how we should expect protesters in our party to be treated under future administrations.”

A House Democratic staffer—half-jokingly referencing the Cold War doctrine of “mutually assured annihilation”—says that they agreed “wholeheartedly” with the sentiment. “Our fates are aligned,” they say. “That’s the best defense we have.”

“Political protest is literally how America was founded. It’s in our DNA,” says Jason Pye, senior policy analyst at the nonprofit FreedomWorks. “Whether you agree with these protesters or not is irrelevant.”