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

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?”