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How Many Americans are Swept up in NSA’s Foreign Intelligence Surveillance?

A coalition of privacy groups from across the ideological spectrum urged the Director of National Intelligence to disclose how many Americans the NSA is spying on under a law targeting foreigners overseas.

October 29, 2015

Broad Coali­tion Sends Letter to Director of National Intel­li­gence James Clap­per

Today the Bren­nan Center for Justice, joined by more than 30 other privacy and civil liber­ties organ­iz­a­tions, urged Director of National Intel­li­gence (DNI) James Clap­per to determ­ine and disclose how many Amer­ic­ans are swept up in NSA surveil­lance under a law that author­izes the agency to target foreign­ers over­seas. Coming on the heels of the DNI’s release of a “Prin­ciples of Intel­li­gence Trans­par­ency Imple­ment­a­tion Plan” earlier this week, the letter chal­lenges the Intel­li­gence Community to put action behind its words.

“Amer­ic­ans deserve to know the truth about so-called ‘for­eign intel­li­gence’ surveil­lance,” said Eliza­beth Goitein, co-director of the Bren­nan Center’s Liberty and National Secur­ity Program. “The NSA claims it’s only target­ing foreign­ers over­seas, but it refuses to provide even an estim­ate of how many Amer­ic­ans’ commu­nic­a­tions are picked up and handed over to the FBI. And the FBI won’t reveal how many times it searches this data, without a warrant or any judi­cial over­sight, for inform­a­tion about Amer­ican citizens.”

The law at issue is Section 702 of the Foreign Intel­li­gence Surveil­lance Act (FISA), which will expire in 2017 unless reau­thor­ized. Section 702 allows the NSA to collect the phone calls and e-mails of anyone reas­on­ably believed to be a foreigner over­seas, as long as acquir­ing “foreign intel­li­gence” is a signi­fic­ant purpose of the surveil­lance. Because the law does­n’t require the target to be suspec­ted of any crime, and because inter­na­tional commu­nic­a­tion is common, Section 702 surveil­lance is virtu­ally guar­an­teed to acquire millions of commu­nic­a­tions between inno­cent Amer­ic­ans and foreign­ers. Moreover, the FBI routinely searches Section 702 data for Amer­ic­ans’ commu­nic­a­tions, accord­ing to the Privacy and Civil Liber­ties Over­sight Board, thus evad­ing the Fourth Amend­ment’s warrant require­ment for domestic invest­ig­a­tions.

U.S. Sen. Ron Wyden and former U.S. Sen. Mark Udall made repeated requests for an estim­ate of the number of Amer­ic­ans swept up in Section 702 surveil­lance. The NSA respon­ded that provid­ing such an estim­ate would itself viol­ate Amer­ic­ans’ privacy because it would require the NSA to exam­ine the content of commu­nic­a­tions. In a letter sent to DNI Clap­per today, a broad coali­tion of privacy groups from across the ideo­lo­gical spec­trum rejec­ted the NSA’s claim. The letter concludes that the NSA can assess the impact of Section 702 surveil­lance on Amer­ic­ans in a manner that is a “net gain” for privacy.

“The NSA claims that it cannot ascer­tain the effect of foreign intel­li­gence surveil­lance on Amer­ic­ans because that would viol­ate privacy. Lead­ing privacy organ­iz­a­tions across the coun­try disagree,” said Goitein. “It does not serve Amer­ic­ans’ privacy to keep them in the dark about how often the NSA scoops up their phone calls and e-mails.

“The fact that the NSA has made no effort to determ­ine how much of its intake consists of Amer­ic­ans’ commu­nic­a­tions is actu­ally quite alarm­ing,” she added. “The law requires the NSA to minim­ize collec­tion of Amer­ic­ans’ inform­a­tion, and the NSA’s mission state­ment includes protec­tion of privacy and civil liber­ties. How can the NSA claim to be protect­ing Amer­ic­ans’ privacy if it has no idea how much data about Amer­ic­ans it’s collect­ing?”