Donald Trump’s claim of FISA use against him puts focus on spying scope

President Trump’s claim that the Obama administration used a law meant for snooping on foreign agents against him during the presidential campaign has raised new questions about the scope of government spying, just months before the law is due for renewal.

The White House has offered no evidence to back up Mr. Trump’s claim, but the allegation has sent ripples through Capitol Hill, where lawmakers will have to decide by the end of the year whether to renew key parts of Foreign Intelligence Surveillance Act (FISA).

“I think it’s very problematic,” House intelligence committee chairman Devin Nunes said this week, ramping up the pressure on the intelligence community to make the case for renewal.

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The controversial part of FISA is Section 702, which allows federal agencies to monitor communications as long as the target is a foreigner who is located outside the U.S.

But when that foreigner is communicating with someone in the U.S., those communications can be incidentally monitored — raising critical privacy and civil liberties questions that Mr. Trump’s accusations have raised to front page headlines.

Mr. Nunes said the Trump charges should put pressure on the intelligence community to be more forthcoming about what they’ve actually been doing, in order to clear up any misconceptions Americans might have.

“We expect prompt answers and we also expect unprecedented answers,” Mr. Nunes said.

Adam Klein, a fellow at the Center for New American Security, said the Trump charge is compounded by the recent “unmasking” of then-National Security Adviser Michael Flynn, whose communications with the Russian ambassador to the U.S. were monitored — and then made public, despite strict controls in law about how information gleaned from foreign surveillance can be used.

“I think the effect of these concerns is there’s going to be more focus on reform efforts,” said Mr. Klein.

Mr. Trump, in a series of Twitter posts, said President Obama ordered “tapping my phones” in the run-up to the election. He was apparently piggy-backing on reports that Obama administration officials had sought — and perhaps obtained — an order under the FISA.

Mark Zaid, a lawyer in the District of Columbia said he doubts Mr. Trump’s allegation will have a significant impact on the reauthorization, pointing to the fact that a FISA court had issued a warrant for the alleged wiretapping, according to multiple news reports over the weekend.

“If it was issued lawfully, the fact that it might have included Mr. Trump, his associates, his business, his building, I don’t see why that would demonstrate any need for reform if it was done properly,” said Mr. Zaid.

Hemanshu Nigam, a former federal prosecutor for President Clinton’s Justice Department, predicted Congress would renew the Section 702 powers, particularly at a time when the U.S. is facing higher cybersecurity threats from enemy countries.

“I think trying to reform it is going to raise all sorts of challenges — that it’s better that Congress not slow down the momentum of what FISA is actually needed for at a time when countries are all gearing up to increase the attacks they do in the digital age,” said Mr. Nigam.