Former Director of National Intelligence James Clapper famously (or infamously) told Congress the National Security Agency did not “wittingly” collect data on Americans. That turned out to be false.
More recently, Sen. Ron Wyden (D-Ore.) asked the current director of national intelligence, Dan Coats whether the government could use Section 702 of the Foreign Intelligence Surveillance Act “to collect communications it knows are entirely domestic.”
“Not to my knowledge. That would be illegal,” Coats responded.
However, a subsequent letter from Coats’ office to Wyden’s office suggests the director’s answer was incomplete. The Office of the Director of National Intelligence clarified that “section 702(b)(4) plainly states we ‘may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.’ The DNI interpreted Senator Wyden’s question to ask about this provision and answered accordingly.”
Wyden has since gone on record with his contention that the DNI did not answer his question, requesting the office provide a public response. The exchange offers insight into how intelligence agencies use semantics to obfuscate their activities, while also illustrating the frustration many privacy advocates and lawmakers encounter in the search for Section 702 surveillance transparency.
FISA Section 702 authorizes two major NSA snooping programs. One is “upstream” collection, a process in which the NSA collects digital communications through the internet’s backbone — undersea cables that process large volumes of internet traffic, which internet service providers send to the government. The government attempts to sort the data for foreign targets’ information and then is supposed to discard the rest.
We know some Americans’ information is retained when they communicate with a target, though minimization procedures are in place to protect their identities. Until recently, the information also could be swept up if they communicated “about” a target. The NSA recently announced it was ending “about” collection in the wake of a series of compliance incidents and privacy concerns. Some other Americans’ data may be swept up due to “technological limitations that affect scope of collection.” In other words, the NSA hasn’t invested in infrastructure that can narrow their collection.
The problem is that we do not know how many Americans are swept up in 702 surveillance. We do not even have a rough estimate. A recent letter from privacy groups admonished Coats for refusing to provide information on the number of Americans swept up in 702 collection — information that both he and his predecessor had promised to deliver.
Coats’ intransigence follows a familiar pattern of the NSA promising transparency and then reneging on those promises. Indeed, for the past six years the agency has flummoxed congressional oversight, with its reluctance to give the public hard data on this matter. When a powerful bureaucracy ignores both civil-society groups and its constitutional overseers, what is the solution?
Congress should step in and do its job, which requires going beyond public reprimands from a handful of members. The first branch has the power to legislate and write laws requiring the executive branch to reveal the number of Americans swept up in 702 collection. The letter from privacy groups recommended such a deep dive, but the intelligence community argued it would be counterproductively invasive. A clear legal mandate from Congress could outline how the search would be conducted, with accurate protections for Americans who potentially could be unmasked.
As to why the NSA would be so reluctant to answer such a simple request, privacy blogger Marcy Wheeler recently detailed a culture of ignorance that has emerged within the NSA in the wake of an July 2010 ruling by Foreign Intelligence Surveillance Court Judge John Bates concerning “the deliberate collection of domestic content via upstream collection.” In Wheeler's characterization, “Bates said that if the government knew it had obtained domestic content, it had to delete the data, but if it didn’t know, it could keep it.” A perfect catch-22.
These instructions cultivate a practice of willful ignorance, which probably explains the hesitance of the intelligence community to answer Wyden's question publicly. A new law would nip this habit in the bud and place heavy incentives for transparency. Until a new law is passed, privacy advocates will be at the mercy of the NSA’s mood.
Civil-society groups have nobly tried to fill the gap where Congress has been lacking in its oversight and lawmaking role. It is imperative then that Section 702 be updated substantially, before it is reauthorized at the end of the year. Both Americans’ privacy rights and the intelligence community stand to benefit from clearer legal boundaries. It is Congress’ job to hold the executive branch’s feet to the fire — the very notion of the separation of powers, of checks and balances and of a free democracy depend on it.