Congress Getting Pissed Off Over Failure Of Intel Community To Reveal How Many Americans Are Being Spied On

from the outright-lies dept

As we’ve pointed out for many, many years, Senator Ron Wyden has been banging the drum, asking the Director of National Intelligence to reveal how many Americans are having their communications swept up under Section 702 of the FISA Act. We have posts going back to 2011 of Wyden asking for a number and being stonewalled. At the time, many tried to brush it off as nothing to be concerned about — after all, the “F” in FISA is supposed to stand for “Foreign” and so it was assumed (incorrectly) that Americans’ communications were mostly unlikely to be caught up in the matter. Of course, as we now know quite well, that’s not even remotely true. Between the Snowden revelations and other declassified FISA court orders, we know that tons of Americans had their communications swept up, without any kind of warrant. Throughout all of this time, Wyden kept asking that question over and over again, without getting any answers. Last year, others finally joined in, with a large bipartisan group from the House Intelligence Committee all (finally!) asking the same question.

Eventually, late last year (after years of stalling), then Director of National Intelligence, James Clapper, said that his office would deliver an estimate to Congress. Indeed, the House Judiciary Committee worked with Clapper’s office to set up the parameters for that number, noting that it needed to be provided “early enough to inform the debate” about the renewal of Section 702, and had to be provided in a format that could be provided to the public, rather than kept in secret. That estimate never came. This issue came up again during the hearings for Clapper’s replacement, Dan Coats, who also said he would try to get Congress a number. Specifically, he told Wyden: “I’m going to do everything I can to work with Admiral Rogers in NSA to get you that number.”

As we noted, two months ago, another bipartisan letter was sent to Coats, this time signed by both the chair of the committee, Bob Goodlatte, and the ranking member, John Conyers. That generally means that the Committee is getting serious about stuff. In the letter, they noted that they were still waiting on Coats to deliver this number and expected to see it soon.

Then, yesterday, there was a public Senate Intelligence Committee hearing over the issue of the 702 renewal. While most of the press is focused on the refusal of those testifying to say whether President Trump had spoken to them about various investigations concerning Russia, there was something else concerning that was brought up. Coats, despite his earlier promises and the promises of his office, is now saying that it would be impossible to give a number.

Not surprisingly, for the folks in Congress who have been insisting on getting this number (and giving it to the public), this… did not sit well. When it was Senator Wyden’s turn to question the panel, he went off on Coats for going back on his word.

This morning you went back on that promise and you said that even putting together a sampling, a statistical estimate, would jeopardize national security. I think that is a very, very damaging position to stake out.

Later in that exchange, there was this exchange (which, if you watch it, involved both men being fairly testy with each other):

Wyden: Can the government use FISA 702 to collect communications it knows are entirely domestic?

Coats: Not to my knowledge. It would be against the law.

As Marcy Wheeler points out, that exchange may prove to be similar to Wyden’s now infamous question to Coats’ predecessor, Clapper, about whether or not the NSA collected information on millions of Americans (the “not wittingly” response, which was later shown to be completely bogus). Wheeler points out that for Coats to actually believe that, it would appear that he doesn’t know how 702 is actually used, even though he signed a memo about this very thing. Wheeler points to the recent FISC opinion reauthorizing 702 data collection that states that if the Director of the NSA signs a waiver for all of the domestic collections, then the NSA can still collect a wholly domestic communication under 702. That FISC opinion cites a March 30th memo that Coats would have signed as the justification for this argument. So for him to now say that it’s illegal for the very thing his own memo from March says is okay… seems like a serious problem.

And Wyden’s not the only one upset about this. Since this was a Senate hearing, Rep. Conyers wasn’t there, but he put out a blistering statement calling Coats’ statements “unacceptable.”

The intelligence community has—for many months—expressly promised members of both parties that they would deliver this estimate to us in time to inform our debate on the reauthorization of Section 702. As late as last August, we had discussed and approved the specific methodologies that the NSA might use to make good on their promise.

Today, Director Coats announced that the estimate is ‘infeasible’ and will not be forthcoming. I find that outcome unacceptable.

Over the course of the last year, we believed we had worked past the excuses we are offered today. The nation’s leading civil liberties organizations see no threat to privacy in this project, and have said so publicly. The agencies demonstrated to us how they might perform this analysis without significant diversion of resources. I am deeply disappointed in a return to these old talking points.

Section 702 is built on trust. It will be more difficult to find that trust as we move forward with the debate.

As we discussed earlier this week, a bunch of Senators have already been pushing a permanent renewal of 702 with no changes at all. As the debate heats up on the renewal of Section 702 ahead of its expiration later this year, we’re going to need Congress to hold the intelligence community to its promise to reveal at least some data on how these programs impact Americans’ communications.

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Comments on “Congress Getting Pissed Off Over Failure Of Intel Community To Reveal How Many Americans Are Being Spied On”

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aerinai says:

No Stakes, No Game

Until these Senators start actually holding these guys accountable and not renew their authority of Section 702, these hearings are just bluster. I like Wyden and what he’s doing (it seems single handedly), but unfortunately it doesn’t mean much to the NSA. Withholding the information won’t change any politicians views of it and its ‘necessity’, so they might as well err on the side of caution. I’m sure the number of American’s spied upon is pretty damning and might actually cause some blowback (especially if it’s 90-100% of the population as I suspect), which could put its use in jeopardy.

Anonymous Coward says:

Re: No Stakes, No Game

“That’s a nice political career you’ve got there Senator. Too bad your communication with XYZ was “incidentally collected”. It would be a shame if word about it got out to social media. Now how about you release this nicely prepared statement that says we’re working in the best interest of the country and renew our funding, and we’ll just forget this conversation never happened.”

Good luck finding enough senators with sufficient integrity and/or spine to stand up to that conversation.

Anonymous Coward says:

Re: Re: No Stakes, No Game

“Good luck finding enough senators with sufficient integrity and/or spine to stand up to that conversation.”

We don’t want them, that is the problem. Unless a senator is easily controlled by their party then they are lambasted in the community and people act as though they are freaks.

this is what is has come too… The normal looking politician is now just a bad one!

Anonymous Coward says:

Re: We can truthfully guarantee...

It is strictly limited to those people who use electronic-based forms of communication.

Not true: Old School Snail Mail ‘Metadata’ Still Being Harvested By The USPS And Turned Over To Law Enforcement/Security Agencies By Request

The only reason it’s not 100% is that several babies are born every minute in the USA, and it’s a few minutes before the doctor registers their RFID bracelet (the data then being ingested into NSA’s project NATALITY).

Roger Strong (profile) says:

Re: We can truthfully guarantee...

Plus those who don’t use electronic-based forms of communication, but who have friends and relatives who do, and who mention them in emails and on Facebook.

Also those who pay their grocery bills with a credit or debit card. Purchase history is occasionally requested by police.

Also people not into ebooks, but who check out books from the library.

Don’t forget travel details, for those who cross a border. Or fly. Or pay for gas and meals with a credit / debit card.

Or who use local transit. My city switched to electronic fare cards a few months ago. Naturally, it was just revealed that the private travel history of bus riders is being handed to police without requiring a warrant.

But hey, there’s still non-electronic communication like snail mail. That hardly ever gets opened. Although the Postal Service has confirmed that it takes a photograph of the outside of every letter and package mailed in the United States and occasionally provides the photos to law enforcement agencies.

Anonymous Coward says:

Re: Re: We can truthfully guarantee...

Or pay for gas and meals with a credit / debit card.

Or pay for gas with cash. You think gas stations aren’t going to datamine the license plates, or that the NSA could resist hacking those systems?

As noted in the Reality Winner story, some stores log the serial numbers of electronic devices (printers etc.) purchased with cash, and they’ll almost certainly have surveillance video.

Anonymous Coward says:

Re: Re: Re: We can truthfully guarantee...

wait, there is more.

case of amed villa busted for theft, because he left husky brand tools set, which fbi traced to home depot in queens, and got video of cash purchase of that single sale made in entire year.

yep, chain stores participate in fbi infragrad

Anonymous Coward says:

Infeasible to justify funding for an office that can't even justify itself

If the office cannot even compute a rough estimate, then it is either uncooperative or supremely incompetent. In either case, it is infeasible to continue funding such an entity. Funding for continued operation of the surveillance programs should be stripped until such time as it can comply with simple oversight requirements.

Robert L says:

Jeopardize what?

“This morning you went back on that promise and you said that even putting together a sampling, a statistical estimate, would jeopardize national security. I think that is a very, very damaging position to stake out.”

I think the problem is that it would jeopardize (further) the reputation of the NSA.

If the statistical sampling showed an reasonable large percentage of Americans’ communications are swept up in this, you have to believe that the guy in charge is going to be very reluctant to let that fact get out.

Anonymous Coward says:

what charges would the ‘Intel Community’ face if the information was released? how about if it were a ‘whistle blower’? would Congress pursue or allow the security services to pursue the person who released the information then? the problem is that this is exactly why whistle blowers needed to be protected but the thick cunts in Congress just rolled over and allowed their persecution and imprisonment, after being tortured, of course! now they want info that could have been released but wont be because of the fear that has been instilled! how bloody ridiculous!!

Seegras (profile) says:

Secret Services are not working for the government

Secret Services appear to be useful to governments, and they certainly try to be at least so useful that they don’t get de-funded or abolished. But they’re not working for the government, much less the parliaments.

They’re first and foremost working for themselves, and see governments as fickle employers that need to be kept in the dark as much as possible.

And, they see most foreign Secret Services as competition AND as allies. In doubt, a Secret Service will lie to its own government to protect a foreign Secret Service. Because that foreign Secret Service can provide them with interesting data, and also, might itself spill the beans and implicate this Secret Service. So it’s prudent to lie to ones own government.

From the point of view of a democracy, Secret Services are dangerous and need to be abolished.

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