The CIA spies on Americans (again), and Cheney & Kinzinger get censured

Plus my contribution to the New Atlantis symposium on social media

Feb 18, 2022

Good Friday morning!

I have a few new essays to share on a variety of topics.

First up is a piece I published yesterday in The Federalist on new revelations that the CIA is once again collecting bulk metadata on Americans — this time, potentially by circumventing statutory restraints by purchasing it through the third party data market. This is completely legal, but should it be? (No.)

Second, I’m sharing my contribution to a symposium hosted by The New Atlantis. Nicholas Carr laid out a path toward Big Tech regulation based on the public interest standard that governs the telecommunications industry. I responded, along with Sen. Josh Hawley, Antón Barba-Kay, Paul Matzo, and Martha Bayles.

Finally, I’m including a piece I wrote roughly a week ago following the formal censure of Rep. Liz Cheney and Rep. Adam Kinzinger by the Republican National Committee. A handful of conservative commentators sought to frame the censure as “punishing” Cheney and Kinzinger for “disagreement.”

But, as I lay out, this was not simply a dispute over ideology. The pair are serving on the January 6th Select Committee at the request of Democrats (not Republicans), and actively seeking to politically harm their GOP colleagues. The RNC censure is a purely rational response.

Thank you, as always, for reading!

Rachel

The CIA Got Caught Spying On Americans Again. It’s Time For Congress To Make Them Stop

The CIA’s surveillance authorities need to be sharply curtailed and the market for third-party data restructured or eliminated entirely.

Nearly a decade ago, Edward Snowden dropped a series of bombshell revelations on the world, chief among them revealing the presence of the PRISM program: a constitutionally dubious surveillance program under which the National Security Agency, Federal Bureau of Investigation, and Central Intelligence Agency gather and search through the emails, internet calls, photos, and chats of Americans without obtaining a warrant, usually through the backdoor of America’s major tech companies.

In response, Congress passed the USA Freedom Act in 2015, a bill that amended the Foreign Intelligence Surveillance Act (FISA) to ban the bulk collection of Americans’ telephone records and internet metadata under Section 215 of the PATRIOT Act. In its place, Congress authorized more targeted measures subject to transparency, declassification, and reporting requirements.

But based on recently released information from the Senate Intelligence Committee heads Sen. Ron Wyden, D-Ore., and Sen. Martin Heinrich, D-N.M., the CIA received Congress’s directive and apparently responded with a big, fat LOL.

The pair of senators announced last week they had pressured the CIA into releasing a partial de-classification of two Privacy and Civil Liberties Oversight Board (PCLOB) reports, “Deep Dives,” both of which suggest the CIA is collecting more data on American citizens than even Congress is aware of.

To accomplish this, the CIA cites authority under Executive Order 12333, a broad-based, Reagan-era presidential directive that established a framework for data collection by intelligence agencies during foreign missions. The CIA is technically prohibited from collecting data on Americans, but given the bulk nature of modern surveillance – where all kinds of identifiable information is swept up in giant dragnets – the data of Americans is invariably captured.

Intelligence agencies are required to take steps to protect domestic information, including redacting the names of any Americans from reports unless they are deemed relevant to the investigation, a process called “unmasking.”

Deep Dive I, the first PCLOB report partially declassified by the senators, focuses on a program targeting potential sources of ISIS funding with connections to Americans and suggests that data from American citizens is being unmasked at a high rate. Former CIA analyst and Cato Institute scholar Patrick Eddington put it this way:

The report also notes that requests by CIA and non-CIA elements for the unmasking of [U.S. Person] data or identities is common and seemingly on a large scale . . . If you look at the redacted portion on the number of unmasking request, the redaction encompasses at least 8 and perhaps as many as 10 numeric characters – potentially a huge number.

“I find it hard to believe that there are literally tens of thousands or hundreds of thousands of people in this country who are engaged in financial transactions that were designed to benefit ISIS,” he later told The Hill. Moreover, according to the PCLOB report, analysts are not required to provide a justification for initiating queries on U.S. citizens.

The CIA May Still Be Spying Via Third Parties

The second report, “Deep Dive II,” was left almost entirely classified but raises potentially even greater concerns, namely that an undisclosed data repository on American citizens exists, as the senators put it, “entirely outside the statutory framework that Congress and the public believe govern this collection.”

Given the redactions, it’s hard to know exactly how this bulk data is being collected. But prior reporting on bulk data collection from the government can inform reasonably educated speculation that this program may involve the government purchasing data from the third-party commercial market.

Hundreds of times a day, popular smartphone apps broadcast their location, demographic information, and unique phone-ID numbers to an industry of online data brokers and advertising companies, which resell them to other firms – and to the government.

In 2013, it was revealed that the CIA was paying AT&T more than $10 million a year under a “voluntary contract” (that is, not under subpoena or court order) to exploit the company’s database of phone records, including international calls made by Americans. The U.S. military, law enforcement arms, the Internal Revenue Service, and even a National Guard unit tasked with carrying out drone strikes have all purchased various data sets from data brokers.

You can see the appeal. There is currently nothing illegal about purchasing a person’s minute and intimate details, which are used to inform everything from political campaign targeting to product advertising. For the government, it is an easy way to circumvent constitutional protections when gathering details on Americans.

While data brokers promise these details are anonymous, late last year a Catholic newsletter was able to purchase app data from the dating app Grindr, cross-reference it with other publicly available information, and identify and out a gay Catholic priest.

Time to Reform the Intelligence Community

At the very least, the Wyden/Heinrich disclosures make clear how much oversight and reform is needed over the intelligence community’s capabilities and ongoing actions.

But such efforts between Congress and the IC are rarely cooperative, and sometimes downright adversarial. The intelligence community has long exuded arrogance toward congressional attempts at oversight of their activities. In 2013, Wyden asked then-Director of National Intelligence James Clapper in an open congressional hearing if the NSA collected “any type of data at all on millions or hundreds of millions of Americans.”

“No,” Clapper responded. “Not wittingly.”

Just months later, Snowden revealed the NSA’s access to the bulk data of Americans through U.S. tech companies and millions of call records from telecom providers. Clapper was later forced to apologize to the Senate Intelligence Committee for his “clearly erroneous” statement.

A year later, rather than responding to the post-Snowden era with a more cooperative attitude toward congressional oversight and, where possible, transparency, the CIA responded by hacking the computersof Senate investigators examining the agency’s role in perpetrating torture.

But the IC has had numerous allies on Capitol Hill. During the FISA reauthorization debate in 2020, Sen. Richard Burr, R-N.C., seemed to scoff at the exercise itself, noting that under EO 12333, the NSA “can do all of this without Congress’s permission, without guardrails . . . that authority exists.”

In lieu of this, Congress should be more aggressive in its oversight and statutory reform, not less. This includes ignoring the inevitable fear-mongering that intelligence agencies and Department of Defense regularly engage in whenever Article I attempts to assert itself. These are the same people, after all, who told us Kabul wouldn’t fall, swore there were nuclear weapons in Iraq, repeatedly told bald-faced lies to Congress about the status of the war in Afghanistan, and call anything they don’t like “Russian misinformation” in an effort to protect the politically powerful and discredit dissent.

But Congress must also update the rules about commercial data brokerage, which exists in a largely lawless space. Sen. Ron Wyden, Sen. Rand Paul, R-Ky., and 18 other senators introduced the Fourth Amendment Is Not For Sale Act, which would close the legal loophole allowing data brokers to sell American’s personal information to law enforcement and intelligence agencies without court oversight.

Rep. Warren Davidson’s, R-Ohio, office confirmed to The Federalist that his office will soon introduce the It’s Your Data Act, which will restrict third-party data collection and sharing, and ban the sale of such data to the government.

All of these efforts begin what will be an uphill but necessary climb for Congress: getting control of the massive and largely accountable surveillance activities of the federal government. This is the work of the legislature. As Wyden and Heinrich noted, “it is critical that Congress not legislate without awareness of a . . . CIA program, and that the American public not be misled into believing that the reforms in any reauthorization legislation fully cover the IC’s collection of their records.”

Rachel Bovard is The Federalist's senior tech columnist and the senior director of policy at the Conservative Partnership Institute. She has more than a decade of policy experience in Washington and has served in both the House and Senate in various roles, including as a legislative director and policy director for the Senate Steering Committee under the successive chairmanships of Sen. Pat Toomey and Sen. Mike Lee. She also served as director of policy services for The Heritage Foundation.

Rule Social Media, or Be Ruled by It

A response to “How to Fix Social Media” by Nicholas Carr

In the debate over how or whether to manage social media platforms, we are often presented with a binary: do something; but if that means stifling innovation and breaking the Internet, then do nothing. In such a formulation, there is very little room for self-government.

Nicholas Carr, in an essay that is a welcome contribution to the social media debate, mercifully rejects the binary. In his expertly espoused history of modern radio and telecommunications, Carr examines the perils, pitfalls, and promise the nascent broadcast industry presented — and, critically, the path America took to integrate technological advancements into a democracy, rather than be subject to them.

His exegesis could not come at a better time. Major tech companies like Apple, Amazon, Google, Twitter, and Facebook have tipped the scales toward what Justice John Paul Stevens, then referring to radio broadcasting, called a “uniquely pervasive presence.” These companies now shape public opinion, contorting and restricting the flow of information at a massive scale to suit political or financial incentives. The most powerful corporations the world has ever seen are placing significant costs on the freedom of expression, undermining the values of free speech, diversity of views, and dissent, re-shaping behaviors and interactions along the way.

Tech platforms are also the gatekeepers to major access points of capitalism, with a handful of corporate platforms acting as the mercurial masters of drawbridges to the burgeoning digital economy. These companies harvest our intimate details, provide national security services to the U.S. government, and are the digital backbone of our computing infrastructure. Amazon’s marketplace and web hosting services, Facebook’s ad platform, and Google’s search engine are indispensable tools of business for legions of entrepreneurs. This is also true for upstart and established political campaigns, where the speech and advertising services of Big Tech platforms act as critical infrastructure for political speech and voter engagement.

Ian Bremmer recently argued in Foreign Affairs that social media platforms act more like sovereign states than they do mere private companies, exerting geopolitical influence abroad as well as at home. The platforms, says Bremmer, “will drive the next industrial revolution, determine how countries project economic and military power, shape the future of work, and redefine social contracts.”

Many policymakers, particularly on the right, seem to accept all of this as simply inevitable, as the natural consequence of innovation, which must exist in an ungovernable space for a truly free market to exist. But the key truth of Carr’s illuminating essay is that it is not. The position in which we now find ourselves — with private platforms reformulating the contours of the social order, polarizing our increasingly chaotic political lives while hectoring our free speech traditions and manipulating our markets — is the result of an explicit set of policy choices.

That is precisely what Carr outlines in the case of radio broadcasting, which is less a story of the triumph of so-called permissionless innovation than it is of a democratic society setting the terms for how it will live with technological advances. It is the story of America choosing to govern technologies that radically altered the country, instead of being governed by them.

Our history abounds with examples of similar choices. Carr points to the various telecommunications acts, but there are also the Hepburn Act of 1906, which, among other things, prohibited railroads from transporting commodities in which they had an interest; the Public Utility Holding Company Act of 1935, when Congress chose to democratize the nation’s electric power production; and the Bank Holding Company Act of 1956, which restricted banks from entering non-financial business.

Legislatures of the past have had more guts, will, and clarity to see their role as one that, as Carr puts it, “assures the people’s right to have a say in the workings of the institutions and systems that shape their lives — a right fundamental to a true democracy and a just society.”

But the last fifty years or so have been dominated by a neoliberal philosophy that has, in many cases, inverted that calculus, preferring to emphasize the economic benefits to consumers as the only metric worth using, setting aside how these systems interact with the self-determined social consensus and the rights and wishes of citizens.

The emphasis on the consumer, to the exclusion of his consideration as a citizen, has left us with a representative legislature that seems bereft of will and direction. On one side, the left talks about setting up dystopian bureaus of misinformation, while, on the other, the right struggles to overcome rote ideological hurdles about interfering with private industry — neglecting that private industry is subject to thousands of rules and government assistance which many on the right support — and it retains the blinkered belief that the effect of these platforms is merely on one or two sectors, rather than on the economy as a whole.

Carr provides some proposals that begin to integrate tech companies into a governable structure: a robust framework for privacy of communication and applying a public interest standard to online broadcasting. To that I would add robust antitrust enforcement, and a more active role for Congress to break the structural dominance of these platforms.

For example, as seventeen state attorneys general recently noted in an antitrust filing against Google, the company owns every side of the market in the most dominant digital ad business in the world — it controls both the buyers and the sellers of ads, and the exchange between the two. According to one senior Google employee cited in the filing, “the analogy would be if Goldman or Citibank owned the [New York Stock Exchange].” Congress should perhaps consider requiring a legal separation of the buy-side and sell-side of the digital ad business.

The looming question behind debates over the major technology platforms is one of sovereignty: Who rules — us or them? It is a question of whether or not we still have the will to govern the products of innovation where necessary, to fit them into our values and traditions, rather than limply accepting a fate that will reform us in their image.

The end of this story is not inevitable. At least, it doesn’t have to be. Our self-government can write another story, to assert itself again on behalf of the people it represents, as it has many times in the past. We simply have to choose to do it.

The RNC’s Censure Of Cheney And Kinzinger Is Absolutely Necessary

Cheney and Kinzinger are working against the interests of their own party at the request and behest of congressional Democrats.

The Republican National Committee formally censuredRepublican Reps. Adam Kinzinger and Liz Cheney on Friday for “engag[ing] in actions in their positions as members of the January 6th Select Committee not befitting Republican members of Congress,” including “participating in a Democrat-led persecution of ordinary citizens engaged in legitimate political discourse.” The RNC resolution calls on the party to no longer support the pair as Republicans.

Republican-led condemnations of the RNC have been swift. “The RNC is censuring Liz Cheney and Adam Kinzinger because they are trying to find out what happened on January 6th – HUH?” Sen. Bill Cassidy, R-La., tweeted in response. Nebraska Republican Sen. Ben Sasse took issue with the resolution’s description of anything that happened on Jan. 6 as “legitimate political discourse.” And Sen. Mitt Romney, R-Utah, intoned that “shame falls on a party that would censure persons of conscience, who seek truth in the face of vitriol.”

Axios called it “a major political party siding with the people who attacked the Capitol.” Conservative commentator Erick Erickson calledit “stupid.”

Reasonable people can and do disagree about the stakes of what unfolded on Jan. 6, but let’s get one thing clear: what the Jan. 6 Select Committee is engaging in is not “truth seeking.” Its clear partisan agenda involves sweeping privacy violations against Americans who were miles away from the U.S. Capitol. As members of that committee, Cheney and Kinzinger are not acting on behalf of Republicans, but at the behest of the Democrats who put them there.

The actions of the Jan. 6 Committee and Kinzinger and Cheney’s role in them are intentionally sidestepped in all of the criticism, which makes it appear they are being punished simply for what they think or what they say.

From leftist media, this is not surprising. Corporate media doesn’t desire to cultivate conservative sources or seek to understand what drives half the country. They simply call them fascist racist rubes and move on. This complete lack of interest (and, you know, journalistic intellect) is why their pundits were blindsided by Donald Trump’s election in 2016. It’s why they’re likely to be completely wrong about what happens in 2024, too.

But if they took an honest look at what Cheney and Kinzinger have been up to, they’d see that the RNC’s response is entirely rational.

The Jan. 6 Select Committee is investigating an event that has already been investigated by federal law enforcement. The FBI – which seized banking, phone, social media, and geolocation records from the more than 700 people they arrested and charged – found no evidence of any central coordination or organization. Moreover, investigations demanded by Democratic House members into Republican House members, conducted by both the inspector general of the Capitol Police and the Government Accountability Office, have turned up nothing.

Despite this, the Select Committee insists there was some sort of central planning. In an attempt to harass as many people as possible to prove law enforcement wrong, they have issued huge dragnets for the personal emails, text messages, location records, and social media posts of a secret list of people that includes private American citizens who had nothing to do with entering the Capitol. They have likewise breached centuries of protocol by demanding the private phone records and testimony of their own House colleagues.

The Select Committee has now twice issued criminal contempt charges to the Department of Justice, suggesting they are comfortable with jailing their political opponents if they don’t comply with every single outrageous request. Moreover, the committee stubbornly refuses to investigate the known security failures that allowed entrance to the Capitol in the first place. Cheney and Kinzinger have been willing participants in every part of this exercise – from unjustly violating the privacy of an untold number of Americans, to levying the threat of jail time against their House colleagues and members of their own party.

Critically, the duo isn’t “representing Republicans” in this effort. Republican Majority Leader Kevin McCarthy, R-Calif., appointed Reps. Jim Jordan, R-Ohio, and Jim Banks, R-Ind., to represent their party on the committee. House Speaker Nancy Pelosi, D-Calif., in another flagrant breach of protocol, refused to let them serve, resulting in McCarthy barring his members from participating in what is now, by the Select Committee’s own rules, an improperly constituted committee.

Pelosi reached out to Cheney and Kinzinger and asked them to participate, to which they both agreed. They are not serving at the behest of Republicans but at the request of the Democratic speaker. Thus they are not Republican members of the committee. They are Republicans acting as Democratic proxies.

All of this provides the proper context to understand why the RNC took the actions it did. Cheney and Kinzinger are not just issuing disapproving statements about Jan. 6 or publicly rebuking it. Rather, the pair are actively working against the interests of their own colleagues, and their own party, at the request and behest of congressional Democrats.

Cheney and Kinzinger both appear completely comfortable with and willing to aid Democrats in political weaponization of the House against Republicans. The appropriate response is for them to change parties – not to continue to claim the mantle and benefits of being members of a party they are actively seeking to undermine with their actions.

It is simply illogical for a party to continue to privilege members who repeatedly and tangibly work to oppose its interests. So in this sense, the actions of the RNC are not overwrought or even needlessly partisan. They are entirely rational. You don’t continue to bunk up with people who continually try to shiv you.

This article was originally published in the BRIGHT newsletter.

Things Rachel Writes