Trump’s Spy Chief Urged to Declassify Details of Secret Surveillance Program

Former US congresswoman Tulsi Gabbard’s ascendance to director of national intelligence last month signaled a major shift in views toward government surveillance at the highest rung of the US intelligence community. While backing down from some of her more extreme anti-surveillance views in the run-up to her confirmation, Gabbard nevertheless held fast to a few promises of reform that have been traditionally eschewed by federal law enforcement leaders.

Now, some of the nation’s premier civil liberties organizations have begun lobbying America’s “top spy” to follow through on a pledge to bring about new levels of oversight and transparency to a key US surveillance program that’s long been plagued by reports of misuse.

Led by the American Civil Liberties Union, at least 20 major privacy groups this week urged Gabbard to declassify information concerning Section 702 of the Foreign Intelligence Surveillance Act (FISA)—the nation’s cornerstone wiretap authority that, while aimed at collecting intelligence on foreigners overseas, is known to vacuum up large quantities of calls, texts, and emails belonging to Americans.

In a letter first obtained by WIRED, the groups privately urged Gabbard this week to declassify information regarding the types of US businesses that can now be secretly compelled to install wiretaps on the US National Security Agency’s (NSA) behalf.

While it’s no secret that the government routinely compels phone and email service providers like AT&T and Google into conducting wiretaps, Congress passed a new provision last year expanding the range of businesses that can receive such orders. Legal experts had warned in advance that the provision was far too ambiguous and likely to vastly increase the number of Americans whose communications are wiretapped. But their warnings were not heeded.

It is widely assumed that the classified purpose behind the expanded authority is allowing the government to obtain access to communications in US data centers. Lawyers for the US Justice Department attempted to unilaterally expand the reach of the program in 2022, but its efforts were foiled by the secret surveillance court that oversees FISA. Only Congress has the power to expand FISA, the department was told.

As its a matter of secret law, lawmakers were unable to specify much about the limits of the government’s access in the provision they ultimately passed. This inevitably led to the adoption of a vague new definition for what the government calls an “electronic communications service provider” (ECSP)—the term for companies whose cooperation can be compelled under FISA.

Privacy experts and industry leaders had likewise raised concerns about introducing ambiguity into a law that defines the scope of a powerful surveillance tool, warning the changes could expose a near limitless new range of new businesses to secret government demands.

As WIRED reported last spring, opponents of the provision in Washington had cast the surveillance program’s new parameters as effectively “Stasi-like”—a reference to the defunct East German secret police agency notorious for infiltrating industry and forcing private citizens to spy on one another.

Senator Ron Wyden of Oregon, a renowned privacy hawk who has served on the Senate intelligence committee since just after 9/11, has referred to the new provision as “one of the most dramatic and terrifying expansions of government surveillance authority in history.”

Declassifying the new types of businesses that can actually be considered an ECSP is an essential step in bringing about clarity to an otherwise nebulous change in federal surveillance practices, according to the ACLU and the other organizations joined in its effort. “Without such basic transparency, the law will likely continue to permit sweeping NSA surveillance on domestic soil that threatens the civil liberties of all Americans,” the groups wrote in their letter to Gabbard this week.

The Office of the Director of National Intelligence did not respond to multiple requests for comment.

In addition to urging Gabbard to declassify details about the reach of the 702 program, the ACLU and others are currently pressing Gabbard to publish information to quantify just how many Americans have been “incidentally” wiretapped by their own government. Intelligence officials have long claimed that doing so would be “impossible,” as any analysis of the wiretaps would involve the government accessing them unjustifiably, effectively violating those Americans’ rights.

The privacy groups, however, point to research published in 2022 out of Princeton University, which details a methodology that could effectively solve that issue. “The intelligence community’s refusal to produce the requested estimate undermines trust and weakens the legitimacy of Section 702,” the groups say.

Gabbard is widely reported to have softened her stance against government spying while working to secure her new position as director of the nation’s intelligence apparatus. During the 116th Congress, for instance, Gabbard introduced legislation that sought to completely dismantle the Section 702 program, which is considered the “crown jewel” or US intelligence collection and crucial to keeping tabs on foreign threats abroad, including terrorist organizations and cybersecurity threats—exhibiting a stance far more extreme than those traditionally held by lawmakers and civil society organizations who’ve long campaigned for surveillance reform.

While begging off from this position in January, Gabbard’s newly espoused views have, in fact, brought her more closely in line with mainstream reformers. In response to questions from the US Senate ahead of her confirmation, for example, Gabbard backed the idea of requiring the Federal Bureau of Investigation to obtain warrants before accessing the communications of Americans swept up by the 702 program.

Slews of national security hawks from former House speaker Nancy Pelosi to former House intelligence committee chairman Mike Turner have long opposed this warrant requirement, as traditionally have all directors of the FBI. “This warrant requirement strengthens the [intelligence community] by ensuring queries are targeted and justified," Gabbard wrote in response to Senate questions in late January.

The Section 702 program was reauthorized last spring, but only for an additional two years. Early discussions about reauthorizing the program once more are expected to kick off again as early as this summer.

Sean Vitka, executive director of Demand Progress, one of the organizations involved in the lobbying effort, notes that Gabbard has a long history of supporting civil liberties, and refers to her recent statements about secret surveillance programs “encouraging.” “Congress needs to know, and the public deserves to know, what Section 702 is being used for,” Vitka says, “and how many Americans are swept up in that surveillance.”

“Section 702 has been repeatedly used to conduct warrantless surveillance on Americans, including journalists, activists, and even members of Congress,” adds Kia Hamadanchy, senior policy counsel for the ACLU. “Declassifying critical information, as well as providing long-overdue basic data about the number of US persons whose communications are collected under this surveillance are essential steps to increasing transparency as the next reauthorization debate approaches.”