Once Again, Senator Wyden Wants To Know How Many Americans Are Being Surveilled By The NSA

from the why-is-this-so-difficult dept

Many people seem to forget that before Ed Snowden came along, Senator Ron Wyden was beating the drum in Congress about how the NSA was abusing Section 702 of the FISA Amendments Act to spy on Americans. Here's a story we did back in 2011 concerning Wyden raising concerns about the failure of the Director of National Intelligence to say how Section 702 was being used on Americans. Even earlier in 2011, we wrote about then Director of National Intelligence, James Clapper, refusing to answer this question, saying that "it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed."

Wyden kept up a series of similar requests, famously leading to the 2013 hearing in which Wyden directly asked Clapper about whether or not information was being collected on Americans and Clapper flat out lied. Snowden himself has credited that particular exchange as playing a big role in convincing him to leak documents.

Fast forward to now. Last week, Senator Wyden sent a letter to incoming Director of National Intelligence* Dan Coats, once again asking how many Americans are having their communications watched under Section 702 of the FISA Amendments Act (which, again, is supposed to be used for foreign intelligence, but which we now know is regularly used to do surveillance on Americans).

I and other members of Congress have been seeking an answer to this question since 2011. We posed the question again in the context of the reauthorization of Section 702 in 2012. It is now central to the debate this year over the reauthorization of the program, which you have described as your "top legislative priority."

As Wyden notes:

The lack of information on the extent to which Americans' communications have been collected under Section 702 is relevant not just to the question of whether Section 702 should be reauthorized, but to what reforms may be needed. For example, the government is currently authorized to conduct warrentless queries for Americans' communications collected under Section 702. Without data on the number of Americans' communications available to government, it is impossible to know the full extent to which these queries intrude on the privacy and constitutional rights of Americans.

Wyden was hoping to get an answer to this question, prior to Coats' being voted in. That, of course, did not happen. However, Wyden gave one of his big speeches about this issue:

In it, he calls out these issues quite clearly:

But I want it understood that the reason that I’m going through this background is that I believe the American people deserve a fully informed debate about the Foreign Intelligence Surveillance Act reauthorization. You cannot have that debate — you cannot ensure that the American people have security and liberty unless you know the impact of section 702 of that bill on the constitutional rights of law-abiding Americans. So for six years, Mr. President, in this body Democrats and Republicans — in the other body, Democrats and Republicans — have been asking the same question: How many law-abiding Americans are having their communications swept up in all of this collection? Without even an estimate of this number, I don’t think it’s possible to judge what section 702 means for the core liberties of law-abiding Americans. Without this information, the Congress can’t make an informed decision about whether to reauthorize section 702 or what kind of reforms might be necessary to ensure the protection of the individual liberties of innocent Americans.

There's a lot more in the nearly 50-minute speech (the transcript is in the link above). But it's truly incredible that the executive branch refuses to give Congress this information that it needs for oversight:

Mr. President, how many law-abiding Americans — innocent, law-abiding Americans are getting swept up in these searches? It will be an increasingly important issue, as the nature of telecommunications companies continues to change because it is now a field that is globally interconnected. We don’t have telecommunications systems just stopping at national borders. So getting the number of Americans whose communications have been collected in the first place is the prerequisite to doing real oversight on this law and doing our job at a time when it is being reauthorized and the American people want both security and liberty and understand that the two are not mutually exclusive. So, Director Clapper then suggested reviewing the classified number of targets that were later determined to be located in the United States. But the question has never been about the targets of section 702, although the mistaken targeting of Americans and the people in our country is another serious question. The question that Democrats and Republicans have been asking is about how many Americans are being swept up by a program that, according to the law, is supposed to only target foreigners overseas. So let me repeat that. That’s what the law says. The Foreign Intelligence Surveillance Act says that the targets are supposed to be foreigners overseas. And Democrats and Republicans want to know how many law-abiding Americans who might reside in Alaska or Oregon or anywhere else are getting swept up in these searches. So this bipartisan coalition has kept asking.

Wyden goes on to explain how many in the intelligence community are misleading the public on how broad the powers and searches under Section 702 really are. He even highlights the claims that some have made that anyone against 702 must be part of a "bad guy caucus." But the issue is that, as currently used, Section 702 can and likely is being used to broadly conduct warrantless surveillance on Americans:

I’ve heard my colleagues on the other side talk frequently. Well, you know, if law-abiding Americans are having their communications swept up, we shouldn’t get all concerned about that because this array of Americans’ communications is being minimized, and somehow that means that it’s not getting out. It’s being hidden. That’s not what necessarily happens. To begin with, all that collection does not stay at the National Security Agency. All the e-mails collected through the PRISM component of section 702 go to several other agencies, including the C.I.A. and the F.B.I. Then you have those three agencies in particular authorized to conduct searches through all the data for communications that are to, from, or about Americans. Look for an American’s name, telephone number, e-mail address, even a key word or phrase. They can do that without any warrant. There doesn’t have to be even a suspicion, even a suspicion that an American is engaged in any kind of wrongdoing. The F.B.I.’s authorities are even broader. The F.B.I. can also conduct searches for communications that are to, from, or about an American to seek evidence of a crime. Unlike the National Security Agency and the Central Intelligence Agency, the F.B.I. doesn’t even report how many searches for Americans it’s conducting. Moreover, neither the F.B.I. Nor the C.I.A. Reports on the number of searches for Americans it conducts using metadata collected under section 702. Now, the authority to conduct searches for Americans’ communications in section 702 data is new. Before 2011, the FISA court prohibited, prohibited queries for U.S. persons. I’m going to repeat that: Under the Bush Administration and the first two years of the Obama Administration, it was not possible to conduct these back-door, warrantless searches of law-abiding Americans. Then the Obama Administration sought to change the rules and obtained authority to conduct them. In April, 2014, the Director of National Intelligence in response to questions from myself and Senator Mark Udall publicly acknowledged these warrantless searches, and my June, the House voted overwhelmingly to prohibit them. That prohibition didn’t become law, but I can tell you it’s sure going to be considered in the context of this reauthorization, and the House voted overwhelmingly, overwhelmingly to prohibit these warrantless searches. So the question really is what exactly is the privacy impact of these warrantless searches for Americans?

There's a lot more in the speech as well, but this post is getting to be long enough. Unfortunately, of course, the speech will get little attention. It's not the exciting sort of political football that cable news likes to cover. There's no partisan horse race element to it. It's just the kind of thing that impacts the basic Constitutional rights of all Americans. And, apparently, only a few people actually seem to care about it -- and none of them seem to be in roles where they can stop this kind of 4th Amendment violation from happening again.

* Clapper, astoundingly, was never fired or otherwise punished for lying to Congress, and only left at the beginning of this year with the change in administrations.

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Filed Under: 4th amendment, dan coats, fisa amendments act, james clapper, nsa, ron wyden, section 702