By: Sarah Hartman-Caverly

Untold numbers of Americans likely had their personal communications snagged in yet another FISA surveillance dragnet  — and no one is talking about it. 

Edward Snowden’s 2013 disclosures of NSA capabilities prompted the last national conversation about electronic surveillance and civil liberties. This discussion is newly relevant given the Department of Justice Inspector General December 2019 report detailing faults in the FISA-sanctioned surveillance of a member of a national political campaign, preceded days earlier by the FISA Court’s rebuke of factual errors and omissions in the same FBI FISA application, and 2017 findings of significant noncompliance in NSA, FBI, and CIA use of FISA Section 702 metadata. 

Exploratory analysis published by Stanford’s Computer Security Laboratory in 2016 concludes that, for every target of surveillance, current practices allow agencies like the NSA to collect metadata from approximately 25,000 additional people. Using a process called contact chaining or the two-hop rule, intelligence analysts begin their queries with a ‘seed’ target of surveillance, and can gather information about communications between that seed and their direct contacts (first hop), and from those primary contacts to secondary contacts (second hop). This is a useful method to identify the key players in a terrorist conspiracy, and also increases the risk for incidental collection of personal data on entirely innocent individuals. 

So, where is the media coverage to inform corrective action and public oversight? 

Given the media’s unprecedented overt access to former intelligence officials  — many outlets retain them as paid contributors — thorough and nuanced analysis of state surveillance practices in light of current events doesn’t seem like too much to ask. Though former Director of National Intelligence James Clapper, CIA Director John Brennan, and FBI Deputy Director Andrew McCabe appear regularly on NCB News/MSNBC and CNN, they are more likely to be roasting the current administration than to be roasted by investigative journalists. Likewise, former FBI director James Comey is a frequent contributor to the opinion pages of the Washington Post and New York Times, from which his memos launched three thousand subpoenas. But establishment media has still not thought to inquire precisely how many United States residents’ personal data was examined, even unmasked or operationalized, in the dragnet of FISA’s two-hop rule. 

Any such attempt to hold power to account would threaten the pipeline of intel and innuendo from the intelligence community that powers the mass media rumor mill. Take the “salacious and unverified” Steele dossier, which the aforementioned Horowitz report called “central and essential” in meeting the probable cause threshold for the FBI’s FISA application. The dossier was an open secret within the DC media, which refrained from reporting on it pending some semblance of verification. CNN first broke news of the dossier — citing Comey’s presidential briefing in determining it newsworthy — and was swiftly one-upped when BuzzFeed published the document in full. Comey, for his part, cited the potential for reporters to use dossier content as a “news hook” in his rationale for briefing the president. And it was Comey’s disclosure of the Midyear Exam investigation that prompted Glenn Simpson and Peter Fritsch, co-founders of Fusion GPS which hired Christopher Steele, to leak the dossier to David Corn at Mother Jones as part of a broader pressure campaign aimed at the FBI. At the same time, Steele himself was providing Fusion GPS-funded off-the-record briefings to New York Times, Washington Post, and Yahoo! News, which the FBI then referenced in its FISA application as open-source intelligence to buttress the dossier’s credibility. 

Thus “multiple layers of hearsay upon hearsay” derived from opposition research and validated by the surveillance-industrial complex sustained countless news segments and worked the chyron alerts overtime. The FBI and CIA competed to shape the media narrative. The New York Times and Washington Post shared a Pulitzer. On the intelligence side of the equation, the FBI was swayed by the media’s beatification of Steele, cited news stories to support their FISA application, and burned a CIA source; and the claim of state secrets privilege shielded the entire FISA process from oversight. Howard Fineman offered this boil down to media critic Eric Wemple: “bad oppo + zealous feds = bad journalism, erosion of the rule of law and threats to civil liberties.” 

Forty-five years ago, members of the Church and Pike committees reached similar conclusions. The progenitors of contemporary congressional committees tasked with intelligence oversight, Church and Pike investigated the excesses of the FBI, CIA, and NSA. Tucked amid revelations of assassination plots, exotic weapons, and human experimentation were accounts of politicized abuses of the state surveillance apparatus, and manipulation of public sentiment and public policy through mass media. Church and Pike unveiled covert intelligence operations in both the domestic and foreign press (the CIA’s Warren Commission conspiracy theory directive is one such example); not long after, Carl Bernstein detailed the media’s ofttimes witting complicity. Book II of the Church Committee’s report discusses “The Adverse Impact of Improper Intelligence Activity,” including media manipulation, distorting facts to influence policy and the public, chilling the exercise of First Amendment freedoms, and the disruption of innocent people’s day-to-day lives — not to mention the material costs. When Pike pointedly asked CIA Director William Colby whether anyone working in television or wire services like the AP was on the CIA payroll, Colby demurred: “This, I think, is getting into the details, Mr. Chairman, that I would like to discuss in executive session.” That was in 1975, the Year of Intelligence. Funny, then, that the current degree of media exposure enjoyed by modern intelligence officials should have led to so many years of unintelligence. 

As an intellectual freedom scholar, I take particular interest in the efforts to censor, disparage as conspiracy theorists, or dehumanize as Russian bots the many people who came to recognize these codependent media-surveillance industrial complex abuses for what they are. But it’s no matter.  They’re burning the strawmen for fuel.

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Sarah Hartman-Caverly, MS(LIS), MSIS, is a reference and instruction librarian at Penn State Berks, where she liaises with Engineering, Business and Computing programs. Prior to her current appointment, Sarah was a reference and instruction librarian at a community college, and was an electronic resources manager and library system administrator in both community and small liberal arts college settings. Sarah’s research examines the compatibility of human and machine autonomy from the perspective of intellectual freedom. Recent contributions include “Version Control” (ACRL 2017), “Our ‘Special Obligation’: Library Assessment, Learning Analytics, and Intellectual Freedom” (ACRL 2018), and “Human Nature is Not a Machine: On Liberty, Attention Engineering, and Learning Analytics” (Library Trends, 2019). She earned her MS(LIS) and MSIS from Drexel University in 2011.