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?