Treat Tucker Carlson's NSA Snooping Claims Seriously, but Not Literally
The Fox News pundit’s emails were probably reviewed legally—and that’s part of the problem.
Toward the end of June, Fox News pundit Tucker Carlson made a remarkable on-air claim: He told viewers that the National Security Agency (NSA) had been reading his emails and planned to leak the contents in order to try to get his show off the air. He said a "whistleblower within the U.S. government" told him about the plan.
If the claim were true in the exact way that Carlson said it, this would be an outrageous abuse of the NSA's power. The job of the NSA is to monitor foreign intelligence to track down spies and terrorists, not snoop on American journalists.
The NSA's response was pretty lackluster and didn't exactly close the door on the possibility that there was a kernel of truth in Carlson's claims. The agency responded (which itself is unusual) that Carlson's claim that it "was monitoring [his] electronic communications and is planning to leak them in an attempt to take him off the air" was untrue and that Carlson has "never been an intelligence target of the Agency and the NSA has never had any plans to try to take his program off the air."
I've been covering the NSA and surveillance issues for Reason since Edward Snowden's leaks and through the twists and turns of the investigation surrounding then-President Donald Trump and his associates' interactions with Russian representatives. I immediately noticed the hole in this denial: Carlson does not actually have to be the "target" of the NSA for the agency to have been able to read his communications. Many of Carlson's claims could be true even if he were simply communicating with somebody else who was the target of NSA monitoring.
Sure enough, on Wednesday night, Axios reported that Carlson had been communicating with intermediaries to try and arrange for an interview with Russian President Vladimir Putin. It is therefore extremely likely that at least one or more of the people Carlson communicated with (some of whom Axios reports had direct ties to the Kremlin) were legitimate targets of NSA surveillance. And therefore, the NSA did, in fact, probably get access to whatever emails were part of this discussion.
This means that the insistence by the NSA that it didn't "target" Carlson is accurate, but it also means that Carlson's claim that the NSA had read his emails may be accurate, at least to the extent that they were emails to the actual surveillance target.
This is colloquially known as a "backdoor search," which is a way for the NSA or FBI to secretly and warrantlessly access communications by Americans in a way that normally would not be permitted. This was, in part, what happened with former National Security Adviser Michael Flynn when he was part of then-President-elect Donald Trump's transition team. Flynn wasn't the target of surveillance at the time—but Sergey Kislyak, the Russian ambassador he was talking to, was. The feds were aware of the nature of the conversations because they were snooping on Kislyak. Flynn got in trouble with the feds not for what he said but for lying about it and covering up the conversations.
It's not controversial that the NSA could have intercepted Carlson's emails to Russian intermediaries, especially if they're connected to the Kremlin. But what is potentially controversial and legitimately bad is what might have happened once somebody at the NSA saw them. Carlson's identity is supposed to be concealed, and there's a complex "masking" and "unmasking" process that's supposed to prevent government officials from knowing who is involved unless there's a legitimate government interest.
Carlson did absolutely nothing wrong as a journalist by attempting to arrange an interview with Putin. This is all activity protected by the First Amendment. Chris Wallace interviewed Putin for Fox back in 2018. In all likelihood, any email exchanges between Wallace's camp and Russian officials were intercepted by the NSA on the Russian end, just like Carlson's might have been. So why has Carlson's identity been apparently unmasked and this information leaked to Axios?
Let's be skeptical of Carlson's claims that this is an attempt to make him look bad. He says now, "The point, of course, was to paint me as a disloyal American. A Russian operative. Been called that before. A stooge of the Kremlin, a traitor doing the bidding of a foreign adversary." This simply doesn't seem to track with how the NSA has handled other journalists who have attempted to interview Putin.
We don't actually know who Axios' sources are here. And Axios reporter Jonathan Swan notes that the very people Carlson was talking to could have been responsible for distributing the communications to others. Even though Carlson says only his executive producer knew about his outreach to Putin, Carlson has no idea what those Russian intermediaries might have done with the emails. For all we know the NSA might have actually seen the contents of the email via the communications between two Russian surveillance targets.
Nevertheless, this entire affair helps shine a spotlight on the NSA's backdoor search problem. It remains far too easy for the federal government to skirt the Fourth Amendment and access Americans' communications without a warrant just because they're talking with a foreign target. A bipartisan group of privacy-minded lawmakers, including the likes of Sens. Rand Paul (R–Ky.) and Ron Wyden (D–Ore.), have been trying to close these backdoors.
Unfortunately in the past, when given the opportunity, Congress actually expanded the authority of the feds to access this backdoor search information in order to fight domestic crimes, and Trump signed these authorizations into law, even while at the same time complaining about how the NSA did him dirty with the Russian probe.
In response to Carlson's claims, House Republican Leader Rep. Kevin McCarthy (R–Calif.) announced last week that he has asked Rep. Devin Nunes (R–Calif.) as the ranking member of the House Permanent Select Committee on Intelligence to investigate the extent to which the NSA's conduct might have been politicized.
Nunes is, unfortunately, emblematic of a lot of the Republican response to the NSA's excesses since Trump was elected. Nunes has been very emphatic about calling out some bad conduct by the feds and surveillance, particularly the faulty warrants used to justify snooping on former Trump aide Carter Page. And he turned out to be correct. But historically, Nunes has been a massive cheerleader for the power of the surveillance state, voting in favor of the aforementioned expansion of domestic surveillance authorities and attacking former Rep. Justin Amash (L–Mich.), calling him "Al Qaeda's best friend in the Congress," for attempting to rein in the NSA and FBI's domestic surveillance powers.
The best outcome here would be for these former cheerleaders of the surveillance state, having seen its political abuse, to finally support some restraints. What we should all fear, though, is that this is all a populist performance and, as with Trump, they only care when they and their allies are targets, and they aren't actually interested in the possibility of reform at all.