Whether Tucker Carlson is an actual victim of government spying or a fraud trying to rile up his viewers, Americans should remember: no matter how much you hate the smug, punchable face of said Fox News darling, the National Security Agency is not your friend and surveillance in our country is out of control.
Case in point, the Carlson episode has reared its head not long after confirmed reports about how the Trump Justice Department spied on journalists, as well as members of Congress and their staff—secretly subpoenaing their phone records and emails, in an effort to track leakers. But while that may sound shocking to some, it’s increasingly normal—and a federal hearing on the matter this week showed why.
The hearing, held by the House Committee on the Judiciary, was largely spurred by the DOJ revelations and was concerned with the government’s use of secrecy orders—the legal protocol that essentially allows law enforcement agencies to subpoena data records on a target without notifying them. Such orders, which are regularly rubber-stamped by courts, are basically the digital equivalent of cops searching a house and turning its contents upside down without a public warrant.
At Wednesday’s hearing, guest speaker Tom Burt, Microsoft’s Corporate Vice President of Customer Security & Trust, said that the way in which law enforcement agencies throughout the country have so routinized invasive, clandestine information requests from tech companies represents “a sea-change from historical norms.” Between a quarter and a third of the requests to his company come from the federal government, some “2,400 to 3,500 secrecy orders each year, or 7-10 per day,” he said, adding that those were “just the demands that Microsoft, just one cloud service provider, received” and that you should “multiply those numbers by every technology company that holds or processes data” to “get a sense of the scope of the government’s overuse of secret surveillance.”
“I want to be clear: The overuse and abuse of secrecy orders is not new, and in fact, it has remained an ongoing problem since the ascendancy of cloud computing. It is not unique to one administration or political party. And it is certainly not limited to investigations targeting the media and Congress,” said Burt. “They are often approved even for routine investigations without any meaningful analysis of either the need for secrecy or the orders’ compliance with fundamental constitutional rights.”
Indeed, Trump’s Justice Department was not the first to spy on journalists. In 2013, it came to light that the DOJ under Obama had subpoenaed phone records from the Associated Press, in an apparent effort to track down the source for a story about an overseas CIA operation. The agency similarly spied on Fox News reporter James Rosen in 2010, reading his emails and monitoring his phone calls. Obama’s CIA also illegally spied on Senate Intelligence staffers as they investigated the agency’s role in torture operations abroad. His administration is remembered for its intense anti-whistleblower tenor, leading one journalist to offer that Obama’s Justice Department “did more damage to reporters’ rights than any administration since Nixon.”
Despite all this, the mechanisms put in place to mitigate—or even just moderately oversee—this kind of clandestine surveillance are woefully lacking, as is demonstrated by another recent controversy.
The Privacy and Civil Liberties Oversight Board (PCLOB), which is an independent agency of the executive branch and self-described federal “watchdog,” recently completed a five-plus year investigation into XKeyscore, a powerful search tool used by the NSA. XKeyscore allows the agency to use a Google-like function to search through pretty much anybody’s emails, web browsing data, social media activity, associated metadata, and “nearly everything a user does on the internet,” as one early report put it. When the program was first revealed close to a decade ago, searches were performed without any court order and only a slim paper trail existed to justify its intrusions. When a review of XKeyscore was commissioned several years ago, one of PCLOB’s ostensible goals was to look into whether the government was using it in an ethical manner.
However, PCLOB’s report on XKeyscore apparently sucks. That’s according to Travis LeBlanc, a member of the board, who recently filed a critique about the report, arguing that the watchdog hadn’t really watched out for anything. For one thing, the 56-page report compiled by the Board is classified—so it will be of no real use to the public (though it was delivered to Congress and to the executive branch in March). According to LeBlanc, the PCLOB failed to investigate the NSA’s actual collection activities, focusing instead on how the tool worked, which he said made the report akin to a “book report” instead of a meaningful audit. He also notes that, while the purpose of the report was to warn the public about potential abuses, the Board “made no effort to seek declassification.” Furthermore, while evidence of potential abuses of the tool was apparently uncovered during the investigation, the Board never meaningfully followed up.
On top of this, the opinions that the watchdog did offer were basically the same as the NSA’s, LeBlanc claims. “In many instances, the former majority simply regurgitates NSA’s own analysis or talking points on legal and constitutional issues, or disregards modern judicial precedent,” he continues.
“What most concerned me was that we have a very powerful surveillance program that eight years or so after exposure, still has no judicial oversight, and what I consider to be inadequate legal analysis and serious compliance infractions,” LeBlanc later told the Washington Post.
In essence, what you have in America are immense surveillance powers, an irresistible political incentive to use them, and sleeping watchdogs who spend half a decade writing reports on said powers while forgetting to ask fundamental questions about their use. At the same time, there is no real political will in America to reform or restrain agencies like the NSA. Both Republicans and Democrats consistently make like the PCLOB and cover their eyes and ears, only to turn around and throw an undiscerning amount of taxpayer dollars at the agencies to keep them the bulbous police state organs that they are.
In truth, our country’s national security state is completely and utterly out of control—and it always has been. Since the 1970s, there’s been a public understanding—albeit one that is often swept under the rug—that our spies have basically been given carte blanche to run roughshod over legal and constitutional barriers if they think it will help them do their job better. And, if history’s taught us anything, the light taps on the wrist they occasionally catch when their misdeeds stumble clumsily out into public view are not a strong enough deterrent to force them to change their ways.