How FISA Surveillance Affects Americans: In Search of Answers

The USA FREEDOM Act, signed into law in June 2015, ended the NSA’s bulk collection of America’s phone records but left other mass surveillance programs untouched. A case in point: Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), which enables the National Security Agency (“NSA”), operating inside the U.S. and without a warrant, to capture foreigners’ calls and e-mails – including communications with Americans. In a letter sent last October and a follow-up letter sent today, the Brennan Center and other civil liberties groups are challenging the Director of National Intelligence to provide some answers about the impact of Section 702 surveillance on United States citizens and residents.

Section 702 surveillance takes place under a law that Congress passed in 2008 to legalize the Bush administration’s warrantless wiretapping. The law removed the requirement of an individualized court order when the NSA eavesdrops on a foreign target’s communications with Americans. The target can be any foreigner overseas; no suspicion of terrorism or wrongdoing of any kind is required.

The NSA acquires more than 250 million Internet communications each year under this program. Given the ubiquity of international communication, this number is virtually certain to include tens of millions of exchanges that involve Americans. But there is no official public data on how many Americans’ communications are swept up. This leaves the public helpless to evaluate the government’s claims that warrantless surveillance targets only foreigners abroad, and that any collection of Americans’ calls and e-mails is purely “incidental.” 

And so, a few years ago, Senators Ron Wyden and Mark Udall – who both served on the Senate intelligence committee – asked the Inspectors General of the Intelligence Community and the NSA whether they could conduct an estimate of how many communications involving Americans are subject to Section 702 surveillance. The Inspectors General dismissed the idea. They said that providing such an estimate would take too many resources and would itself violate Americans’ privacy, because the NSA would have to closely examine the content of calls and e-mails to determine whether the participants were Americans.

In the “post-Snowden” era, and as the December 2017 deadline for reauthorization of Section 702 begins to glimmer on the horizon, this answer simply doesn’t pass muster. Lawmakers should not be asked to extend a surveillance program while they and their constituents are kept in the dark about the extent to which it is being used to surveil Americans’ communications.

In October 2015, the Brennan Center, joined by more than 30 other groups, wrote to the Director of National Intelligence and asked him to disclose basic information about how Section 702 affects Americans – including the estimate previously requested by Senators Wyden and Udall. The letter addressed the government’s previous arguments for non-disclosure and proposed a method for sampling communications that would minimize privacy intrusions. It stated:

In light of the overriding need for Americans to know how this massive surveillance program affects them, the undersigned groups, including many organizations whose missions are centrally focused on protecting privacy, believe that a one-time, limited sampling of these communications would be a net gain for privacy if conducted under appropriate safeguards and conditions.

On December 23, 2015, the Office of the DNI responded with a letter (“ODNI letter”) suggesting a meeting between intelligence officials and representatives of the civil liberties groups. But the letter hinted that much of the information the groups seek may not be forthcoming. Indeed, the “initial information” provided in the letter repeated the very reasons for non-disclosure that the groups’ October letter had sought to address, and contained no response to the groups’ proposal. Instead, it pointed to possible future government disclosures of other, more limited data about Section 702. These disclosures were recommended by the Privacy and Civil Liberties Oversight Board more than a year and a half ago, yet most of them – according to the ODNI letter – are still “under review.”

While the civil liberties community understands the need for a dialogue and welcomes the opportunity for an in-person exchange with intelligence officials, we believe it must be focused on moving the conversation forward, which can happen only if intelligence officials are willing to engage with us on our specific points and proposals. Today, we are sending a letter that explains why we believe the ODNI’s initial response falls short, and sets forth specific points of discussion we hope to cover at the meeting. If ODNI is amenable to a more forward-looking, in-depth conversation along these lines, it could be the first step toward achieving much-needed transparency and clarity regarding how Section 702 surveillance affects us all.