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How FISA Surveillance Affects Americans: In Search of Answers

In a letter sent today to the Director of National Intelligence, the Brennan Center and other civil liberties groups request clear answers about the impact of Section 702 surveillance on United States citizens and residents.

January 13, 2016

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.