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Marcus Montgomery

Spy tools and intelligence sharing: What does Trump know, and who is he sharing with?

Concerning many critics, is the conflation of otherwise innocent individuals with 'terrorists' [AFP]

Date of publication: 27 June, 2017

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Comment: How intelligence sharing operates and what, if any, intelligence Trump might provide to his autocratic US allies in the region, is of utmost concern, writes Marcus Montgomery.

Many in US Congress currently feel compelled to have a familiar discussion, one that pits personal privacy and civil liberties against public and national security concerns.

The Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 'sunsets' (or terminates) at the end of this year and Congress must decide whether to reauthorise a tool that the Director of National Intelligence (DNI) Dan Coats and National Security Agency (NSA) Director Admiral Mike Rogers insist is of utmost importance.

However, civil liberty groups and wary congress members of both parties have long raised concerns about the authorities contained in the 2008 amendments, particularly Section 702. Additionally, the controversy swirling around President Donald Trump and the "unmasking" of his former National Security Adviser Michael Flynn will certainly add fuel to the flame that is government surveillance.

What does FISA Section 702 do?

In short, it is a spy tool. It was added in 2008 to address the fact that technology had changed significantly since the original FISA legislation was adopted in 1978.

By 2008, millions of people around the world were using communications services from US-based companies and the government wanted a more efficient way to keep an eye on its foreign targets.

Through Section 702, the government can force US-based telecom and service providers to hand over the communications of foreign targets

So, through Section 702, the government can force US-based telecom and service providers to hand over the communications of foreign targets. That is significant because now any foreign individual using internet from Verizon or AT&T, sending emails with Google, Yahoo, or Hotmail accounts, or connecting with friends via Facebook or YouTube are potential subjects of surveillance by the US government.

If the US government works with US-based service providers to gain access to electronic communications, what standard must the government meet to be allowed this access?

The threshold for foreign surveillance is shockingly low. Under the current law, one must simply be a non-US person reasonably believed to be residing abroad. There is no evidentiary requirement. In fact, the agency does not even have to indicate a specific target.

The threshold for foreign surveillance is shockingly low

Instead of obtaining a warrant, the Attorney General and Director of National Intelligence submit a "certification" annually to the Foreign Intelligence Surveillance Court (FISC) with a set of loosely defined measures (eg. categories of foreign intelligence being sought and targeting protocols).

One category of information that is frequently sought in the annual certifications is "information relevant to the foreign affairs of the United States," a broad category that can be used for any purpose.   

Implications for the Middle East

While the debate over FISA Section 702 will be heated, the international surveillance of foreign persons is hardly the real concern of the parties.

It is plausible that President Trump will demand even more resources be poured into conducting foreign surveillance in the region

Instead, congress members and the public are more concerned about the incidental collection of Americans' international communications during the dragnet collection process. However, as surveillance policy is explored, it is wise to consider how FISA Section 702 could affect US relations with foreign governments and populations.

 
Under Section 702, the government can force US-based telecom and
service
providers to hand over the communications of foreign targets [AFP]

One of the most glaring downsides to mass surveillance of foreign entities or individuals, is the potential for stoking anti-American sentiment. The Pew Research Center indicated in 2015 that a large majority of those polled disapproved of US surveillance of them, their leaders, or their fellow citizens.

It is conceivable that as the world becomes more interconnected and US online services and applications grow more popular, so too will concerns of American pervasiveness and resentment of the United States' spying.

Another realistic concern is how the NSA and other agencies within the executive branch will use the broad surveillance authorities under President Donald Trump. This should be of significant concern for citizens in the Middle East.

Many fear that this would result in the targeting of academics, journalists, business people, and lawyers

The Trump administration is currently hyper-focused on the region. It is plausible that President Trump will demand even more resources be poured into conducting foreign surveillance in the region, or push the limits of the authorisation even further.  

A third concern must be understood through the context of US intelligence sharing with allies abroad. The Office of the Director of National Intelligence cites successes in warning an ally of the presence of an al-Qaeda operative within its borders, in a report about FISA.

This is undoubtedly a positive use of the Section 702.

However, concerning many critics, is the conflation of otherwise innocent individuals with "terrorists".

As noted before, the certification issued by the Attorney General and DNI broadly defines what can be collected (information relevant to US foreign affairs) and many fear that this would result in the targeting of academics, journalists, business people, and lawyers.

What if Trump agrees to gather the electronic communications of critical journalists in Egypt or political dissidents in the Gulf?

With this in mind, what if - in his affinity for Middle East autocrats who have lavished praise on him - Trump agreed to gather the electronic communications of critical journalists in Egypt or political dissidents in the Gulf and turn them over to his counterparts, thus exacerbating ongoing crackdowns on human rights?

It should be of real concern how intelligence sharing operates and what, if any, intelligence is provided to autocratic US allies in the region.

FISA Section 702 is a useful tool but, like any other, real considerations should be given to its use. It is crucial that information is responsibly gathered and cautiously shared.



Marcus Montgomery is a Junior Analyst for Congressional Affairs at Arab Center Washington DC.

Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, al-Araby al-Jadeed, its editorial board or staff.

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