Trump Might Get Unfettered Surveillance Powers. How Did We Get Here?

If Donald Trump wins on Tuesday, he will regain the keys to a global surveillance apparatus with few limits.

Privacy advocates have warned since Edward Snowden’s revelations in 2013 that the government’s surveillance tools could be misused by presidents of any stripe. In the intervening decade, however, Congress has failed to rein in those powers.

Now, Trump is preparing to retake office with a plan that includes deploying the military on domestic enemies. He would have at his disposal a program that compels American companies to cooperate with the National Security Agency, rules for “foreign” surveillance that changed at the stroke of a pen, and data peddlers who sell location information to the government.

“The only thing that really stands between a president misusing all of these authorities and not are the individuals who work in these agencies, who have sets of rules and standards that they follow,” said Cindy Cohn, executive director of the Electronic Frontier Foundation. “But one of the things we have seen, on the side of President Trump, is that is something he is trying to eliminate.”

“KILL FISA”

Trump spoke out loudly this spring against the reauthorization of a key spying law, the Foreign Intelligence Surveillance Act.

“KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!” Trump said on social media.

Trump was right that the law was used, by FBI agents who lied to a court to obtain warrants, to spy on his campaign. The debate raging in Congress when Trump sent out his message, however, centered on another part of the law that allows warrantless surveillance.

Ultimately, some Trump-aligned Republicans in Congress warmed up to the surveillance bill thanks to concessions that included a two-year “sunset” allowing Trump the chance to help rewrite the bill if he wins.

Still on the books: a section of the law that allows “backdoor” searches of Americans’ phone calls, emails, and text messages collected without a warrant because the government was ostensibly trying to collect foreign intelligence. The FBI alone conducted 200,000 such searches in 2022.

After the Snowden revelations, advocates fought hard to pry open a window into warrantless surveillance. The view they gained has been troubling.

The FBI has violated its own rules thousands of times, including when searching for information on January 6 rioters and demonstrators protesting against the murder of George Floyd. The bureau also searched for information on 19,000 donors to a congressional campaign, according to a partially declassified document released in 2023.

Still, the House of Representatives this year narrowly failed to approve a warrant requirement for searches about Americans, long one of the highest priorities for privacy advocates. The vote scrambled party lines, with some MAGA Republicans lining up with progressives in favor of a warrant.

If Trump wins, he would have a chance to haggle with Congress over the program. Many advocates, though, are skeptical that he would try to rein in warrantless surveillance. They note that he signed a similar spying law in 2018.

“He only hates the so-called deep state because the FBI went after him.”

Patrick Eddington, a senior fellow at the Cato Institute and former congressional aide, said he anticipates that Trump would try to purge perceived enemies rather than curb spying.

“He only hates the so-called deep state because the FBI went after him,” Eddington said. “So how do you solve that problem? You ‘reform’ the FBI. And I don’t think there’s any question that’s what they have in mind.”

Cohn said she fears in particular surveillance being misused to target immigrants — but she will fight for stricter limits on spying whether Trump or Kamala Harris is in office.

“I think EFF will be fighting this regardless of who wins the election,” she said. “The Democrats and Harris especially, they’re not standing up for reforms of these things either. The Biden administration was supportive of this (FISA) extension.”

Growing Powers

Advocates have won some victories since 2013, including greater oversight from a special surveillance court and more transparency. The latest reauthorization from Congress, however, includes a section that gives the government even greater power to compel companies to comply with its orders.

Apparently in an attempt to bring data centers under the law’s reach, Congress rewrote it so broadly, critics say, that almost anyone could be forced to help the government spy.

“Whoever the next president is can go to the cleaning crew for the New York Times or The Intercept and compel them under gag without a warrant to ‘facilitate’ NSA access to those communication systems,” said Sean Vitka, the policy director for Demand Progress. “And it is incredibly dangerous.”

“The next president has a terrifying ability to rewrite those rules in secret and without notice.”

Sen. Mark Warner, D-Va., says he is trying to pass a “fix” for the law this year, but it is unclear whether he will succeed.

While government critics have fought a decadelong battle for a warrant requirement in FISA, they warn there are other government authorities and emerging technologies that may pose just as big a threat.

One is Executive Order 12333, signed in 1981 by President Ronald Reagan, which is supposed to provide a framework for surveillance focused abroad.

“It’s not a statute, it’s not a law,” Vitka said. “In the executive branch’s mind, it’s the executive branch’s own set of limits on its own inherent authority. However, the next president has a terrifying ability to rewrite those rules in secret and without notice.”

Private Data-Mongering

Then there is the government’s growing reliance on private data brokers who have amassed massive quantities of data on ordinary Americans. Apps ranging from navigation to dating sell their data to the brokers, who turn around and sell it to the federal and local law enforcement agencies. The brokers’ clients include the FBI, the DEA, and Immigration and Customs Enforcement.

The data also gets sold to private actors: One broker sold information about people who had visited Planned Parenthood clinics to an anti-abortion group.

As of now, the government argues that the information it buys from those brokers does not require a warrant.

“Even though you need a warrant to put a GPS tracker on a car for a month, they” — courts — “have not said the same thing about buying that information from a data broker scraping it out of your car or out of your phone,” Vitka said.

Beyond the programs that privacy advocates are already concerned about are the ones that haven’t yet come to light. 

Advocates noted that the Snowden revelations shocked the same members of Congress who had voted for the laws authorizing the surveillance, and that the George W. Bush administration used twisted legal interpretations to justify domestic surveillance for years before being exposed.

“It’s been the failures of previous Congresses, Republican and Democrat, and previous administrations, Republican and Democrat, to recognize the absolutely toxic danger that a centralized, imperial presidency represents to the republic,” Eddington said. “We’re perhaps on the cusp of seeing the effects of that, whether it’s Trump or somebody like Trump down the road, being able to seize power and behave in fascistic, autocratic or even totalitarian ways.”

The post Trump Might Get Unfettered Surveillance Powers. How Did We Get Here? appeared first on The Intercept.