The Bill of Rights Defense Committee, the Defending Dissent Foundation, and 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.
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.
“We have no idea how many Americans’ emails and phone calls are being swept up in this dragnet,” BORDC/DDF Executive Director, Sue Udry, said. “Nor do we know how the FBI is using this data, although we do know that they are digging through it without a warrant or any judicial oversight.”
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 letter is the first salvo in a campaign to force Section 702 to sunset by exposing how it has been used, and abused by the FBI and NSA.