Today, a bipartisan group of members of the U.S. House of Representatives Committee on the Judiciary sent a letter to Director of National Intelligence (DNI) James R. Clapper, urging him to provide an estimate of the number of Americans’ communications swept up under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 comes up for reauthorization next year, and the members argue that a proper evaluation of Section 702 programs, which are nominally targeted at foreigners overseas, requires “a public estimate of the number of communications or transactions involving United States persons subject to Section 702 surveillance on an annual basis.”
Sen. Ron Wyden has repeatedly sought this information since at least 2011, and the Privacy and Civil Liberties Oversight Board recommended in July 2014 that the NSA annually count certain Section 702 communications that involve Americans. The NSA responded that the process of generating such an estimate would itself violate Americans’ privacy.
In October 2015, however, more than 30 privacy groups, led by the Brennan Center, wrote to the DNI to explain how an estimate could be produced in a way that would be a “net gain” for privacy. Today’s letter from House members cites the groups’ letter and expresses the members’ agreement. “We acknowledge that this estimate will be an imperfect substitute for a more precise accounting — but surely the American public is entitled to some idea of how many of our communications are swept up by these programs,” the letter states.
“House Judiciary Committee members have lent their voices to the growing chorus demanding hard facts about how foreign intelligence surveillance affects Americans,” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty & National Security Program. “The NSA will soon be asking Congress to reauthorize the Foreign Intelligence Surveillance Act, and it will repeat its past claims that any collection of Americans’ communications is merely ‘incidental.’ And yet, years after Sens. Wyden and Udall first asked for an estimate of how many Americans’ communications are collected, we still don’t have this basic information. The members who signed this letter should be commended for insisting on obtaining the information they need to do their jobs.”
Read the full letter from the U.S. House of Representatives Committee on the Judiciary.
Read the Brennan Center and other civil liberties groups’ letters to the DNI from October 2015 and January 2016.
For more information or to speak with an expert, contact Naren Daniel at (646) 292–8381 or naren.daniel@nyu.edu.