While Fox News host Tucker Carlson’s claims that the NSA has been spying on him may sound like his latest effort to lob a conspiracy theory out into the universe to see what sticks, he might not be as off his rocker as the spy agency would have you think.
Carlson launched into a diatribe Monday evening accusing the surveillance giant of spying on him and of having plans to boot his show off air—without providing any evidence to that effect. That prompted the NSA to drop a rare statement denying his claims and calling him out for lying Tuesday evening.
The NSA is no stranger to hoovering up information about Americans. In 2019 a judge found the NSA deliberately ignored a rule meant to protect Americans’ privacy in order to collect information on foreign targets, according to court documents. That same year, the NSA also reported it unmasked the identities of 16,721 U.S. individuals or entities incidentally caught up in surveillance of foreign targets.
Generally speaking, the NSA, a foreign signals intelligence agency, is supposed to have procedures in place that prevent it from collecting information from communications that take place entirely in the U.S. as well as those from Americans abroad. But Americans get swept up in these kinds of reports all the time.
And the long rap sheet of flagrant violations of Americans’ privacy isn’t isolated to the NSA: The FBI frequently sifts through massive NSA datasets on Americans—without court orders—hunting for information on Americans, as the Foreign Intelligence Surveillance Court revealed in an unsealed opinion this April. Judge James E. Boasberg, who serves on the secret surveillance court, found that FBI officials were sifting through massive troves of NSA data, obtained through warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA), and hunting down information on domestic issues such as gang violence, organized crime, and health-care fraud.
In more than 100 cases, the FBI conducted background checks on business and religious leaders—not foreign targets—using information obtained through Section 702 surveillance as well.
The FBI was continuing these sorts of so-called “backdoor” searches even after the FISA Court had already warned the FBI in 2018 that that behavior raised all kinds of red flags about unreasonable searches and seizures, the court found.
Efforts to rein in this kind of workaround haven’t historically been very successful. After a new safeguard was introduced in 2018 meant to require a court approval before the government accessed information obtained using Section 702, the FISA Court revealed earlier this year that the FBI didn’t seek out those court approvals.
Although the NSA has sought to shut down Carlson’s handwringing, this issue is not likely to go away any time soon, as his claims are already stirring the pot on Capitol Hill. House Minority Leader Kevin McCarthy announced Wednesday evening he had tasked Rep. Devin Nunes with investigating the NSA over the allegations that the agency is spying on Carlson.
Nunes’ spokesperson did not immediately return a request for comment, although we all know how well it went the last time Nunes stepped in the fore with allegations about U.S. government spying on Americans—he ended up having to step aside from the Russia investigation by the House Intelligence Committee while the House Ethics Committee investigated him.
While Carlson’s comments may or may not just be casting aspersions on the NSA, Congress does need to do more moving forward to rein in the NSA’s broad surveillance powers under Section 702, the senior counsel at the Constitution Project at the Project on Government Oversight, Jake Laperruque, told The Daily Beast.
“This is kind of playing with fire when you’re collecting on that scale,” Laperruqe said. “It opens the door to a lot of abuse. Any sort of system that allows for pretty large-scale type of warrantless collection of Americans’ communications that is sort of doing this by [first] going to collect it by looking at people abroad, but then… going to seek out Americans’ communications deliberately once that’s happened” is dangerous, Laperruque said.
And while government officials may claim that fears of NSA surveillance are more a relic of the past—or 2013, when former NSA contractor Edward Snowden revealed the extent of the NSA’s surveillance programs—the agency’s massive dragnet of surveillance to this day still raises a host of privacy and civil liberties questions, according to a member of a prominent privacy watchdog agency within the executive branch of the U.S. government, the U.S. Privacy and Civil Liberties Oversight Board (PCLOB).
The member, Travis LeBlanc, just this week issued a statement lambasting one of the NSA’s most notorious surveillance programs over concerns the program still has major privacy shortcomings, no judicial oversight, and isn’t keeping up with current privacy case law.
According to his statement, the NSA’s use of XKeyscore, one of the agency’s most notorious surveillance programs, triggered multiple “Questionable Intelligence Activities”—a term intelligence and Pentagon officials sometimes take to mean that U.S. officials may have improperly surveilled Americans’ electronic communications. The program has historically allowed NSA access to sensitive information on Americans’ online activity, including emails, internet searches, and social media activity, according to Snowden’s disclosures.
“That is extremely serious,” LeBlanc told The Daily Beast. “Someone concluded that there was reason to believe there was violation of law or an activity that was directly contrary to an executive order, presidential directive, or DOD [Department of Defense] policy. Those are very serious infractions. We also found U.S. person queries.”
The NSA said in a statement that the “majority” of the questionable intelligence activities referenced in the report were related to typos or “overly broad queries.”
Laperruque cautioned that NSA’s assurances about not abusing its surveillance infrastructure don’t track with reality.
“I do take issue with the fact that government does say we don’t abuse this authority,” Laperruque told The Daily Beast. “I mean we have had dozens upon dozens of serious compliance issues [and] abuse issues on a large scale.”
Even so, the NSA’s statement trying to shut down Carlson’s claims left some wiggle room for interpretation as to whether the agency has ever actually monitored any of Carlson’s communications, according to Bobby Chesney, a law professor at University of Texas at Austin. The NSA only notes in its statement that Carlson is not a “target,” which does not necessarily mean his communications haven’t ever been picked up in the agency’s surveillance in the course of monitoring foreign intelligence targets, Chesney said.
“But even if that’s the case, it proves nothing. NSA is subject to elaborate rules about minimization of incidental communications involving U.S. persons,” Chesney told The Daily Beast. “I’m sure Tucker Carlson has talked to or emailed people internationally, just as most of us have. Perhaps in his case he communicated with someone who was of foreign-intelligence interest to the U.S. government. Whenever that happens, there is of course a chance of incidental collection. There’s nothing nefarious about that.”
A Fox News spokesperson when reached for comment declined to clarify whether Carlson suspects he has been incidentally caught up in NSA’s surveillance of foreign targets or whether he thinks he is actually a “target” of NSA surveillance. The spokesperson instead directed The Daily Beast to his Tuesday broadcast, during which Carlson claimed the agency’s statement was “an entire paragraph of lies written purely for the benefit of the intel community’s lackeys at CNN and MSNBC, all those people they hire.”
