Here’s what Trump can do about surveillance if he really wants to

“We’re still waiting to hear whether the president has concerns… so far he hasn’t shown that he does.”

President Barack Obama meets with President-elect Donald Trump in the Oval Office of the White House in Washington, Thursday, Nov. 10, 2016. CREDIT: AP Photo/Pablo Martinez Monsivais
President Barack Obama meets with President-elect Donald Trump in the Oval Office of the White House in Washington, Thursday, Nov. 10, 2016. CREDIT: AP Photo/Pablo Martinez Monsivais

In a series of tweets heard ‘round the world, President Donald Trump accused his predecessor of spying on him Saturday. Trump offered no evidence to support his claims that former President Barack Obama ordered a wiretap to monitor his phone calls, and FBI Director James Comey called on the Justice Department to publicly and unequivocally rebuke Trump’s accusation.

But if the former real estate mogul is truly concerned about being the target of broad surveillance, he now has the power to change that by calling on Congress to reform the Foreign Intelligence Surveillance Act, or FISA.

“If people are truly concerned about warrantless wiretapping, than they should work to reform section 702 of FISA,” said Patrick Toomey, a staff attorney on the ACLU’s national security team. “There are opportunities to reform those programs and should be heard by Congress.”

Section 702 focuses on international communications of foreign targets and authorizes the government to collect and listen in on them. But U.S citizens are hardly immune. “[Section 702] targets foreigners but sweeps up Americans communications in the process,” Toomey said.

“The internet is a very globalized system for communication, so things are not always confined to a single country as they move across the internet,” he added.

For example, if a person in New York sends an email to someone in Kansas, it could digitally bounce around to servers or connections outside of the country before reaching the intended recipient. Additionally, a copy of that email could be stored on a company’s servers in another country and therefore be susceptible to surveillance measures, a loophole that U.S. law enforcement agencies have used—and tech companies have fought—to further investigations. (Microsoft has been fighting the Justice Department in court since 2013 over emails stored in Ireland, for instance.)

Several FISA amendments are set to expire this year, and, with the help of a GOP-led Congress, Trump could close these backdoor search loopholes and end upstream surveillance.

For upstream surveillance under Section 702, intelligence agencies can examine foreign targets’ online and telephone communications as they cross the internet’s backbone, such as telecom switchboards and cables that transmit phone and digital data.

“The government targets under 702 are not limited to suspected criminals or terrorists, just foreigners located overseas that the government believes has intelligence information,” he said.

Those are broad parameters that privacy advocates argue violate Americans’ privacy rights.

Cindy Cohn, the Electronic Frontier Foundation’s executive director, said in a statement that “the government has consistently stonewalled any effort to bring more transparency to secret spying orders. We’re still waiting to hear whether the president has concerns about government spying on ordinary, innocent Americans — so far he hasn’t shown that he does.”

In fact, quite the opposite. While Congress has already begun to hold hearings on the expiring FISA amendments, the Trump administration says it wants to keep FISA’s section 702 intact, Reuters reported. Rather than curtail surveillance efforts, Trump instead called for increased surveillance of Muslim communities and Americans en masse during his candidacy. Moreover, the commander-in-chief previously called NSA whistleblower Edward Snowden a “terrible threat,” suggesting he should be killed for treason.

That doesn’t really jibe with a commitment to greater government transparency — one of his other campaign promises, and something he’s expressed a sudden renewed interest in.

It’s currently unknown how many Americans’ communications are caught in government surveillance, Toomey said. And without that, “it makes it very difficult to have an informed debate.”