PRIVACY

NSA: House Of Cards Plot Is “Illegal And Unbelievable”

What the show gets right (and wrong) about government surveillance

PRIVACY
(Illustration: Tara Jacoby)
Mar 09, 2016 at 3:13 PM ET

No one claims “House of Cards” is the most realistic depiction of American politics to grace the small screen. But many of the plots this season have at least a glimmer of plausibility—sometimes they’re even less strange than what’s really happening in politics. And then there’s Season Four’s subplot about the power of questionably obtained voter data and NSA corruption, which hits a little close to home. Could these fictional abuses of power actually happen?

[Spoiler alerts, ahoy.]

The NSA storyline isn’t the easiest to untangle, but we’ll try: In the show, Governor Will Conway, the 2016 GOP presidential candidate, is pals with the founder of a search engine called Pollyhop. The Pollyhop founder hands Conway enough user metadata to spur a campaign surge. Not to be outdone, President Frank Underwood hits up the secretive FISA Court (aka the Foreign Intelligence Surveillence Court), which issues surveillance warrants, and receives authorization for the NSA to spy on practically every American so that Underwood’s reelection campaign can access detailed voter data of its own.

The Underwood approach is definitely against the law. “Data on U.S. voters for an election? Absolutely illegal and unbelievable,” NSA spokesperson Vanee Vines told Vocativ. But that doesn’t mean it isn’t technically possible. It’s a long shot, yes, but with the right (read: incredibly corrupt) administration, it could happen.

What else on the show could happen in real life? We’ve analyzed and deconstructed certain plot points and ongoing ideas from House of Cards to assess their plausibility.

Voter data is extremely valuable to presidential candidates.

Definitely. Look at the recent minor scandal in the Democratic race. In December, a staffer for Vermont Senator Bernie Sanders improperly accessed voter data intended for former Secretary of State Hillary Clinton. The Democratic National Committee provides all candidates with voter databases, but their official program allows individuals to also add acquired additional entries—which are supposed to be private. An apparent error in the program allowed Sanders’s staff member to allegedly access data developed by the Clinton campaign. Sanders fired the staffer, but the DNC withheld Sanders’ access to its database anyway, prompting Sanders to sue. The DNC relented, and the campaign moved on.

A White House lawyer can go to a classified FISA Court and ask for a secret surveillance order …

Definitely. That’s what a FISA Court, whose rulings are almost always classified, does. They’re designed for sensitive national security matters, and often are used by the NSA, or the FBI on the NSA’s behalf, for surveillance orders.

which would be approved …

Maybe. On one hand, FISA surveillance orders have a reputation of being “rubber stamped” by the court. In 2012, for example, FISA courts received 1,856 surveillance applications. It approved them all.

But in the government’s defense, it knows what it’s doing. Plenty have argued that the government’s perfect “win” rate isn’t evidence that the court is lax—it’s evidence that the government simply knows what it takes to get an order approved.

as a 702 order to track Americans’ internet metadata in bulk.

Unlikely. First of all, Section 702 is designed for foreign surveillance, and would be much more likely to be used in cases of international communications. Instead, the government would be much more likely to lean on another legal authority. It might still be a longshot, but Section 214 of the Patriot Act would be a smarter bet. Section 214 was the NSA’s go-to authority when it conducted its program, discontinued in 2011, of tracking Americans’ internet and email metadata. That means it would track, for instance, the “to” and “from” fields of a given email, but not what’s written in the body, as well as which websites people visited—similar to the kinds of voter profiles developed in the show.

Such metadata could help you win elections.

Definitely. “It would be extremely valuable. It would give you the sites people are visiting, who they were communicating with and at what time,” Julian Sanchez, a senior fellow specializing in privacy and civil liberties at the Cato Institute, told Vocativ. “You would learn an enormous amount about someone’s political sympathies and what issues they were interested in.”

In a stunt to proclaim his transparency, a sitting governor would make all his official emails public.

Definitely. That’s what former Florida Governor Jeb Bush did in February 2015, though with a major misstep: He didn’t ask the people who emailed him for their permission. So thousands of people, many of whom revealed their real names, contact information and even social security numbers, watched in horror as formerly private communications became public.

Of course, in both cases, these were work emails only.

The NSA would actually let the president launch a totally bogus program to spy on Americans to get their votes.

Unlikely but not impossible. “It’s not inconceivable a director would agree to that,” Sanchez said. But for all the criticism of the NSA since Edward Snowden leaked many of its documents in 2013, there’s no evidence of the agency being used for personal gain.

But it could happen. The NSA is part of the executive branch, and it is true that intelligence officials have lied outright to hide the existence of controversial programs. James Clapper, who was and remains President Obama’s Director of National Intelligence, was asked in a March 2013 Senate hearing, “Does the NSA collect any type of data at all on millions, or hundreds of millions of Americans?” Clapper, visibly nervous, responded, “No, sir.” A few months later, Snowden revealed otherwise: Yes, the NSA did receive the phone records of millions of Americans.

The biggest reason this is so improbable, however, is the astronomical risk that a president would get caught. Snowden is far from the only NSA whistleblower, and a number of characters on House of Cards have risked their lives to bring Underwood to justice. Chances are someone would uncover this plan.