House Reps To James Clapper: No, Really, Stop Ignoring The Question And Tell Us How Many Americans Are Spied On By NSA

from the get-to-it dept

Way back before Ed Snowden became a household name, Senator Ron Wyden kept pushing James Clapper, the Director of National Intelligence, to reveal more details on how the NSA was interpreting certain provisions in the PATRIOT Act to spy on Americans. You probably recall the infamous exchange in a 2013 Senate hearing in which Wyden asked Clapper “does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” and Clapper said “No sir… not wittingly.” Snowden himself later noted that this particular exchange was part of what inspired him to leak documents to reporters just a couple months later.

However, that question had some history. Two years earlier, in 2011, we wrote about James Clapper’s ridiculous response to a letter from Wyden about this topic. Wyden had asked Clapper to answer some questions about NSA authorities to collect information on Americans and Clapper had refused to answer on the basis of he didn’t really want to.

A year later, in the summer of 2012, Wyden got more explicit, saying that he would block the FISA Amendments Act until Clapper gave an estimate of how many Americans had their information sucked up by the NSA. This time, Clapper responded in December of 2012 by saying that it would be impossible to actually say how many Americans had their information scooped up by the NSA. We now know why — because six months later, Ed Snowden revealed the answer to be “basically everyone.” But in December, Clapper sent a letter saying to Wyden:

We cannot provide additional answers to your questions in an unclassified format. Rather than provide you with imprecise, unclassified information, I reiterate our offer to meet with you — and any other Members of Congress — in a classified setting to discuss these authorities and answer any questions you might have.

Wyden (along with a few other Senators) pointed out that their question shouldn’t reveal anything classified:

First, we asked if any entities have made any estimates — even imprecise estimates — about how many US communications have been collected under section 702 of the FISA statute (which is the central provision of the FISA Amendments Act). You did not answer this question. Please provide an answer. We would expect this answer to be unclassified, but if you disagree please provide your reasons for keeping this answer secret.

Second, we asked if it was possible to estimate the order of magnitude of this number. (For example, is the number of US communications collected under section 702 closer to 100. or 100.000. or 100 million?) You did not answer this question directly, however the Director of the NSA has made public statements that appear to estimate this order of magnitude. Specifically, the NSA Director has said that “the story that [the NSA] has millions or hundreds of millions of dossiers on people is absolutely false.” Please explain whether this statement should be understood to mean that the number of US communications collected under section 702 is less than “millions or hundreds of millions.” Since the NSA Director made this statement publicly, we would expect this answer to be unclassified as well.

Third, we asked if any wholly domestic American communications had been collected under section 702 authorities. Your response was classified. We do not understand how simply stating whether any wholly domestic communications have been collected under section 702 authorities would have any impact at all on US national security interests. if you believe that it would, please explain why. And if you agree that it would not, please provide an unclassified answer to this question.

Fourth, we noted that the FISA Amendments Act does not prohibit searching through communications collected under section 702 to find the communications of particular Americans, and asked if the US government has ever attempted to search for the communications of a specific American in this way without a warrant or emergency authorization. Your response was classified. We do not understand how providing a ‘yes’ or ‘no’ answer to this question would impact US national security interests in any way, and we ask that you provide an unclassified response.

Eventually, after getting a lot of pressure from other Senators, Wyden agreed to lift his hold on the bill. At first he offered an Amendment saying he would lift the hold if only the NSA would release a number about how many Americans had their information collected by the NSA. However, with folks like Dianne Feinstein and Saxby Chambliss screaming about how terrorists would blow up everything if the spying didn’t continue, the bill eventually passed.

And while some tried to bravely follow up on the questions raised by Wyden, once the bill passed there was no legislative leverage any more — and nothing much happened. It was just a couple months later that Wyden asked his now famous question and Snowden released his documents.

But a bunch of Representatives on the other side of the Capitol, all members of the House Judiciary Committee, have realized that James Clapper has still never answered the question, and thus they’ve now sent him a letter, asking him to finally answer at least some sort of question concerning how many Americans have their data sucked up by the NSA:

In order that we may properly evaluate these programs, we write to ask that you provide us with a public estimate of the number of communications or transactions involving United States persons subject to Section 702 surveillance on an annual basis.

We note that we are not the first to ask you for this basic information. Since at least 2011, Senators Ron Wyden and Mark Udall have “sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but [they] have not been able to obtain even a rough estimate of this number.”

They also note that the PCLOB — the Privacy and Civil Liberties Oversight Board — that looked into the big NSA surveillance programs suggested that the NSA should reveal this number — and the NSA and Clapper have ignored this recommendation. As the Reps note, they recognize that Clapper is “reluctant” to provide such information, but…

First, we understand that an exact count of how many United States persons have been swept up into Section 702 surveillance efforts may not be feasible. The leadership of the intelligence community has long held this View, and the Inspector General for the National Security Agency–who is an administrative appointee, and not an independent inspector general–has deferred to your office on this issue. We understand that limited resources and technical barriers may prevent you from making an exact count.

We are not asking you for an exact count. Today, our request is simply for a rough estimate.

You have already demonstrated that such an estimate is feasible. An October 3, 2011 opinion of the Foreign Intelligence Surveillance Court reports that the NSA, in an effort to address the court’s concerns about the collection of domestic communications under certain applications of Section 702, “conducted a manual review of a random sample consisting of 50,440 Internet transactions taken from the more than 13.25 million Internet transactions acquired through upstream collection during a six month period.” In that case, the court found:

NSA knows with certainty that the upstream collection . . . results in the acquisition of wholly domestic communications.

By expanding its Section 702 acquisitions to include the acquisition of Internet transactions through its upstream collection, NSA has, as a practical matter, circumvented the spirit of [the statute] with regard to that collection.

That case looked at a particular problem with “upstream” collection. A similar but broader analysis may be necessary here. We are willing to work with your office to determine the exact methodology for such a survey. 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 also addresses another argument that the NSA made previously in response to Wyden’s questions: claiming that (get ready for this one) the process to figure out how many Americans’ privacy had been violated would… violate their privacy. It’s a dumb argument, but perhaps not quite as dumb as it sounds. In short, the NSA wants to argue that it’s not doing anything wrong in collecting this information, so long as the searches on the data are within the bounds of the law and the Constitution. Yet, because of that, they want to argue that doing the search to count the records would potentially violate the restrictions on when they can search the data. See? They can’t tell you if your privacy has been violated, because to do so would violate your privacy!

In some ways, this is kind of a middle finger to the civil liberties crowd. It’s the NSA’s smirking response of “see? we can’t tell you how much data we have because you put these privacy restrictions on how we can use that data — and we take your privacy seriously.”

But this letter addresses that concern as well, saying that basically no one thinks a “one-time” search solely for the purpose of counting violates anyone’s privacy:

Second, we understand that producing an estimate might require reviewing actual communications acquired under Section 702, which could itself raise privacy concerns. On this point, we refer you to the judgment of the many civil liberties organizations that support conducting “a one-time, limited sampling of these communications,” if necessary. They believe it would be “a net gain for privacy if conducted under appropriate safeguards and conditions.” We agree, and we are willing to work with your office to implement those safeguards if necessary. This, too, is a problem we can solve.

And, finally, they close with a stick, reminding Clapper that this entire program is scheduled to sunset at the end of December, 2017, and if he wants the FISA 702 program (which covers both PRISM and upstream collection) to continue, he might want to actually respond.

The letter is then signed by 14 members of the House Judiciary Committee. It’s not everyone, but it’s a pretty good list of folks, including some of the more powerful members, including ranking member John Conyers and the author of the PATRIOT Act and the USA Freedom Act, Jim Sensenbrenner. Other signatories include Reps. Zoe Lofgren, Darrell Issa, Blake Farenthold, Jason Chaffetz, Jim Jordan, Ted Deutch, Suzan Delbene, Ted Poe, Hank Johnson, Jerry Nadler and David Cicilline. This is not just a pointless letter dashed off by one or two Reps. It’s a big chunk of the Judiciary Committee (less than half, but still a significant amount).

I’m sure that Clapper will do his best to avoid actually answering, but at the very least it sets up what appears to be the next big fight on the horizon: over the renewal of Section 702.

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Comments on “House Reps To James Clapper: No, Really, Stop Ignoring The Question And Tell Us How Many Americans Are Spied On By NSA”

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That One Guy (profile) says:

Bluff called

Yeah, I imagine the only response from Clapper will be annoyance that he has to think of another way to blow off the pathetic demands from a bunch of spine-less do-nothings again. There’s no chance whatsoever that they actually have the guts to end the FISA 702 program if he ignores them and both sides know it, so their ‘threat’ there is an utterly empty one.

He’ll come up with another way to say ‘No’, they’ll bluster a bit and then renew the law when it comes up, lest they be accused of ‘letting america’s enemies operate without supervision’, something the pro-spy groups are always harping about any time one of their precious programs or laws is threatened.

That One Guy (profile) says:

Re: Re: "We collected data from one-thousand people, however we only looked at the data for one, so 'one'."

Given they already claim that simply gathering the data doesn’t count, it only counts if someone intentionally looks at it, I imagine the number range will be drastically smaller than it actually is, if it’s given at all.

Anonymous Coward says:

Re: Bluff called

Sounds more like they realise their usefulness is at an end and want to try and out the corruption their creation and support of the patriot act has caused before they get “bullet in the back of the head” as a reward for all their hard work at destroying and dismantling the rights of the citizenry.

John Fenderson (profile) says:

Re: Re: Re: Re:

Indeed they could. The checks-and-balances mechanisms are all still in place, and they actually do work if used. But they have to be used. Technically speaking, Congress is the most powerful of the three bodies, by design.

Personally, I think the problem is that the entire system has been expertly subverted and is being used to enrich and empower a select group of people.

The subversion includes that of the American people. In part, as you aptly point out, because we have been so long tricked into fighting each other over bullshit labels like “conservative” or “liberal” to notice the usurpers.

There is a reason that we’ve been the most heavily propagandized population in the world following WWII. No tyranny has ever, or can, persist without the consent of the population.

That Anonymous Coward (profile) says:

When they have gotten out of control, they need to put reigned in. For all of the money with no accountability we’ve gained very little, and lost a majority of out alleged rights.

Pursuing the same course just because we started it is stupid, and if they won’t answer to those who are supposed to be providing oversight they need to end it. There are supposed to be checks and balances, and there are none currently. They gather as much data as they can, they lie about doing so, and this undermines the entire country.

That One Guy (profile) says:

Re: Re: Re:

Like, oh I dunno, a candidate who runs on a platform of government transparency and stopping various government programs or actions to better serve the public? I’m sure electing someone like that would never horrifically backfire, because what a candidate claims always matches what they do, which means the only reason someone would ever elect someone who acts against the public interest is because they knowingly voted for someone who claimed to want to do so.

Anonymous Coward says:

He’ll probably pull out Obama’s “There’s classified and then there’s classified” response to answer this.

Unless they actually grow a pair and hit him with something serious like jail for lying or refusing to answer I wouldn’t hold my breath that he’ll give a better answer than what he’s been doing for the last 5 years.

MarcAnthony (profile) says:

The repercussions of the truth

Warrantless, haphazard collection is plainly illegal—even if it only affects hundreds of people; Clapper hasn’t answered honestly because the answer is “we monitor everyone who sends anything upstream,” and that admission would be all the evidence we need to gain standing and legally challenge the program, which begins its unlawfulness at the point of seizure.

Anonymous Coward says:

Data aged nicely becomes priceless

Don’t forget everyone, all of this data on literally everyone is archived and available years later when some of those people have risen from obscurity. Eventually the presidency itself will be blackmailed into making certain stances due to data that was collected and retained by these agencies. Once you see the policies echoing those from the collect it all proponents, you have removed the checks and balances in the name of national security.

Anonymous Coward says:

Re: Data aged nicely becomes priceless

I just thought of something; Clapper & co. are the right age to have got into baseball cards, aren’t they? You know, the type that would spend their allowance on the packs with gum in them, and then proceed to not open them so they’d be more valuable in the future? The age of the guys who eventually started shoplifting them in small batches to ensure they “got them all” because they had no way of knowing which ones they’d actually collected, as they couldn’t open the packages?

That could explain a thing or two.

The Quibbler says:

Re: Data aged nicely becomes priceless

Right. In any event what has been consistently dodged by both civil rights lobbies and lawyers (and possibly the US media) is the fact that the Privacy Act of 1974 says every citizen has the right to inspect ANY data the USG has on them.

This means it does not take an act of Congress to look at your own records. If they claim you will violate your own right to your own privacy by seeing your own records, well, that’s just garbage. Every American has a private right of action to sue the NSA (and any federal agency) who does not comply with this law. (And I invite the lawyers to come rain down the scuttle, right now, for this law. Come bring out your lousy arguments, right now.)

They also shared this data with another agency who was not NSA. Also a violation of the Privacy Act of 1974. They are not supposed to share any of your data with ANY other agency wihout YOUR CONSENT.

You also have the right to have any of this non-legal data expunged or pulled. So whatever they have on you, you could go get a lawyer TO DAY and write up a cease and desist for their use of your information. Unless they can disclose any kind of criminal event applied your life as a fact patttern, they have to delete your information upon your legal instruction.

That’s the truth. If they want to continue to disobey the law with this data retention nonsense, it’s going to cost them. You can file a complaint and draw up criminal charges against the NSA (or any other agency) who refuses to disclose the use of your records against this law. You contact the Office of Budget and Management. However, you can certainly try the DOJ’s privacy office first to see how far you get: .

I challenge you. IF you are done with this horseshit and you want to put a stop to the trade of your non-criminal information between the dark state and other agencies, you can. You have the right to do so.

Keroberos (profile) says:

The NSA already has or can easily get an exact number of purely domestic communications that they have intercepted under the Section 702 surveillance program. There has to be a database of all the identifying markers of any intercepted communications in order for any of them to be searchable (or not searchable if wholly domestic). So, if they are following the law (ha!), every communication that is intercepted would have to be first scanned for origin and destination, and if both of those are domestic the scan would stop, flag the record as domestic communication in the database, and move on to the next one. They would only have to run a simple database search (if origin=domestic+destination=domestic is yes, add 1 to the numerical result) to give us an exact number of domestic communications intercepted. they would not even have to scan the intercepted communications themselves–just the database, which they have to already do every time they do any kind of search through it.

So, the NSA saying that to give us this number they would have to violate US citizens privacy by scanning these communications is a lie. They have already violated our privacy in the way they are claiming calculating this number would do.

Knowing this database exists–it has to, or all the collected communications would be useless (it would take to long to search for anything useful if it didn’t); you can only come to two conclusions. The first is the NSA is actually searching domestic communications in violation of the law. The second is that they are skirting the law in keeping them in the hopes that someday they will be allowed to search them. If either of those were not the case, they would have deleted the domestic communications already.

Anonymous Coward says:

Nice to see Republicans and Techdirt have something in common: Pushing fearmongering and absurd tinfoil hat nonsense because idiots on Reddit think it’s a relevant issue instead of focusing on ACTUAL issues like healthcare, education, and jobs.

NEWSFLASH, I know it’s hard for your peabrains to comprehend, but this isn’t “spying” you knuckledragging idiots.

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