Once Again, Senator Wyden Wants To Know How Many Americans Are Being Surveilled By The NSA

from the why-is-this-so-difficult dept

Many people seem to forget that before Ed Snowden came along, Senator Ron Wyden was beating the drum in Congress about how the NSA was abusing Section 702 of the FISA Amendments Act to spy on Americans. Here's a story we did back in 2011 concerning Wyden raising concerns about the failure of the Director of National Intelligence to say how Section 702 was being used on Americans. Even earlier in 2011, we wrote about then Director of National Intelligence, James Clapper, refusing to answer this question, saying that "it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed."

Wyden kept up a series of similar requests, famously leading to the 2013 hearing in which Wyden directly asked Clapper about whether or not information was being collected on Americans and Clapper flat out lied. Snowden himself has credited that particular exchange as playing a big role in convincing him to leak documents.

Fast forward to now. Last week, Senator Wyden sent a letter to incoming Director of National Intelligence* Dan Coats, once again asking how many Americans are having their communications watched under Section 702 of the FISA Amendments Act (which, again, is supposed to be used for foreign intelligence, but which we now know is regularly used to do surveillance on Americans).

I and other members of Congress have been seeking an answer to this question since 2011. We posed the question again in the context of the reauthorization of Section 702 in 2012. It is now central to the debate this year over the reauthorization of the program, which you have described as your "top legislative priority."

As Wyden notes:

The lack of information on the extent to which Americans' communications have been collected under Section 702 is relevant not just to the question of whether Section 702 should be reauthorized, but to what reforms may be needed. For example, the government is currently authorized to conduct warrentless queries for Americans' communications collected under Section 702. Without data on the number of Americans' communications available to government, it is impossible to know the full extent to which these queries intrude on the privacy and constitutional rights of Americans.

Wyden was hoping to get an answer to this question, prior to Coats' being voted in. That, of course, did not happen. However, Wyden gave one of his big speeches about this issue:

In it, he calls out these issues quite clearly:

But I want it understood that the reason that I’m going through this background is that I believe the American people deserve a fully informed debate about the Foreign Intelligence Surveillance Act reauthorization. You cannot have that debate — you cannot ensure that the American people have security and liberty unless you know the impact of section 702 of that bill on the constitutional rights of law-abiding Americans.

So for six years, Mr. President, in this body Democrats and Republicans — in the other body, Democrats and Republicans — have been asking the same question: How many law-abiding Americans are having their communications swept up in all of this collection?

Without even an estimate of this number, I don’t think it’s possible to judge what section 702 means for the core liberties of law-abiding Americans.

Without this information, the Congress can’t make an informed decision about whether to reauthorize section 702 or what kind of reforms might be necessary to ensure the protection of the individual liberties of innocent Americans.

There's a lot more in the nearly 50-minute speech (the transcript is in the link above). But it's truly incredible that the executive branch refuses to give Congress this information that it needs for oversight:

Mr. President, how many law-abiding Americans — innocent, law-abiding Americans are getting swept up in these searches? It will be an increasingly important issue, as the nature of telecommunications companies continues to change because it is now a field that is globally interconnected. We don’t have telecommunications systems just stopping at national borders.

So getting the number of Americans whose communications have been collected in the first place is the prerequisite to doing real oversight on this law and doing our job at a time when it is being reauthorized and the American people want both security and liberty and understand that the two are not mutually exclusive. So, Director Clapper then suggested reviewing the classified number of targets that were later determined to be located in the United States. But the question has never been about the targets of section 702, although the mistaken targeting of Americans and the people in our country is another serious question.

The question that Democrats and Republicans have been asking is about how many Americans are being swept up by a program that, according to the law, is supposed to only target foreigners overseas. So let me repeat that. That’s what the law says. The Foreign Intelligence Surveillance Act says that the targets are supposed to be foreigners overseas. And Democrats and Republicans want to know how many law-abiding Americans who might reside in Alaska or Oregon or anywhere else are getting swept up in these searches. So this bipartisan coalition has kept asking.

Wyden goes on to explain how many in the intelligence community are misleading the public on how broad the powers and searches under Section 702 really are. He even highlights the claims that some have made that anyone against 702 must be part of a "bad guy caucus." But the issue is that, as currently used, Section 702 can and likely is being used to broadly conduct warrantless surveillance on Americans:

I’ve heard my colleagues on the other side talk frequently. Well, you know, if law-abiding Americans are having their communications swept up, we shouldn’t get all concerned about that because this array of Americans’ communications is being minimized, and somehow that means that it’s not getting out. It’s being hidden. That’s not what necessarily happens.

To begin with, all that collection does not stay at the National Security Agency. All the e-mails collected through the PRISM component of section 702 go to several other agencies, including the C.I.A. and the F.B.I. Then you have those three agencies in particular authorized to conduct searches through all the data for communications that are to, from, or about Americans. Look for an American’s name, telephone number, e-mail address, even a key word or phrase. They can do that without any warrant. There doesn’t have to be even a suspicion, even a suspicion that an American is engaged in any kind of wrongdoing.

The F.B.I.’s authorities are even broader. The F.B.I. can also conduct searches for communications that are to, from, or about an American to seek evidence of a crime. Unlike the National Security Agency and the Central Intelligence Agency, the F.B.I. doesn’t even report how many searches for Americans it’s conducting. Moreover, neither the F.B.I. Nor the C.I.A. Reports on the number of searches for Americans it conducts using metadata collected under section 702.

Now, the authority to conduct searches for Americans’ communications in section 702 data is new. Before 2011, the FISA court prohibited, prohibited queries for U.S. persons. I’m going to repeat that: Under the Bush Administration and the first two years of the Obama Administration, it was not possible to conduct these back-door, warrantless searches of law-abiding Americans. Then the Obama Administration sought to change the rules and obtained authority to conduct them.

In April, 2014, the Director of National Intelligence in response to questions from myself and Senator Mark Udall publicly acknowledged these warrantless searches, and my June, the House voted overwhelmingly to prohibit them. That prohibition didn’t become law, but I can tell you it’s sure going to be considered in the context of this reauthorization, and the House voted overwhelmingly, overwhelmingly to prohibit these warrantless searches. So the question really is what exactly is the privacy impact of these warrantless searches for Americans?

There's a lot more in the speech as well, but this post is getting to be long enough. Unfortunately, of course, the speech will get little attention. It's not the exciting sort of political football that cable news likes to cover. There's no partisan horse race element to it. It's just the kind of thing that impacts the basic Constitutional rights of all Americans. And, apparently, only a few people actually seem to care about it -- and none of them seem to be in roles where they can stop this kind of 4th Amendment violation from happening again.

* Clapper, astoundingly, was never fired or otherwise punished for lying to Congress, and only left at the beginning of this year with the change in administrations.


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  • identicon
    Anonymous Coward, 16 Mar 2017 @ 1:19pm

    Easy answer -- everyone!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Mar 2017 @ 2:55pm

      Re:

      That was my first thought - all of us.

      reply to this | link to this | view in chronology ]

      • icon
        Rapnel (profile), 16 Mar 2017 @ 3:31pm

        Re: Re:

        select $selector from catalog;

        Something like that would indicate there's a catalog. We've been told there's a catalog. There are many stores to catalog. You are a source of data. You have been cataloged.

        Therefore your first thought is the highly probable one.

        reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 16 Mar 2017 @ 1:25pm

    Glomar to the Rescue!

    We can neither confirm nor deny anything. Much less give actual answers, so, please pick one:

    A) None that we are aware of
    B) None of your business
    C) National Security prevents us from answering
    D) Some, Any, or None of the above.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Mar 2017 @ 1:43pm

      Re: Glomar to the Rescue!

      could you please rephrase the question?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Mar 2017 @ 2:19pm

        Saint Wyden-the-Worthless

        So, once again, Ron Wyden's approach to the problem has been proven totally ineffective -- the bureaucrats just easily brush him aside, as they have successfully done for many years.

        But somehow we need to specifically keep cheerleading Wyden's failures?

        reply to this | link to this | view in chronology ]

        • identicon
          Thad, 16 Mar 2017 @ 2:28pm

          Re: Saint Wyden-the-Worthless

          What approach would you recommend?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Mar 2017 @ 2:57pm

          Re: Saint Wyden-the-Worthless

          I think you're mistaken that he is ineffective. Sure, he hasn't single-handedly dismantled the surveillance state. But who else is even trying? Where would we be now if it was not for his gadfly-like presence in the Senate? By Snowden's own account, he would not have spoken out had not Wyden backed Clapper into a corner so Clapper straight-up lied to the Senate. And where would be be if Snowden hadn't started a national conversation about surveillance?

          I, too, find the degradation of civil liberties in this country discouraging. I, too, wish we had an powerful counter to Clapper and Feinstein and Coats. But we can't have a powerful counter unless people join Wyden, not call his efforts worthless.

          Maybe, though, you have a productive alternate strategy for Wyden to take. If so, please share it. I'm sure that Wyden himself would love to be more effective in this fight. It is no doubt discouraging for him to keep pushing his rock up the hill...

          reply to this | link to this | view in chronology ]

        • icon
          Rapnel (profile), 16 Mar 2017 @ 3:25pm

          Re: Saint Wyden-the-Worthless

          You know what, muncher? I don't see or hear one single other motherfucker standing up for core liberties. Who else are we supposed to cheer? Maybe you can do better? What? Guns? Then I'd be afraid you've missed the point - entirely.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 16 Mar 2017 @ 4:12pm

            Re: Re: Saint Wyden-the-Worthless

            |

            Hey princess -- ever hear of Edward Snowden !

            reply to this | link to this | view in chronology ]

            • icon
              Rapnel (profile), 16 Mar 2017 @ 5:02pm

              Re: Re: Re: Saint Wyden-the-Worthless

              Oh, right, I forgot I was dealing with the semantic equivalent of a rusty mule.

              I believe I've read about that person, yes, however, stood up does not equate to standing up. Especially with regards to elected representatives.

              And I'm a queen. You may go.

              reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Mar 2017 @ 1:33pm

    Don't worry...

    Congressional leaders assure us that if we hurry and re-authorize it now, they'll make time to debate it later.

    (fool me once...)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Mar 2017 @ 1:40pm

    Rare truthful statement from known perjurer James Clapper

    "it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed."

    I actually believe him on this one. The web of surveillance is so extensive and the oversight so broken that I doubt the NSA even knows how many people it is actually spying on. I fully expect that they have tried their best to avoid knowing how many of the surveilled persons are American citizens, because in the extremely unlikely case they are held to account for their actions, they can plead that they didn't know John Doe was an American, which will play much better than admitting that they spied on him just because they could.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Mar 2017 @ 1:42pm

    Sillly question...

    reply to this | link to this | view in chronology ]

  • identicon
    Median Wilfred, 16 Mar 2017 @ 2:27pm

    Reverse targetting, right?

    This would be the practice called "reverse targetting", or do I misunderstand?

    A lot of intelligence community surrogates like Susan Hennesey claim this isn't done at all, because it's against the rules, and against the law, and the NSA has a paralyzingly complete culture of compliance.

    I take it you don't believe this?

    reply to this | link to this | view in chronology ]

  • icon
    seedeevee (profile), 16 Mar 2017 @ 4:25pm

    Thanks Obama!

    I sure am glad President Obama cleared up all of those trust issues we have with the Administration of government.

    reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 16 Mar 2017 @ 5:17pm

    > Mr. President, how many law-abiding Americans — innocent, law-abiding Americans are getting swept up in these searches?

    Answer: 0
    No american is innocent. Everyone is guilty.
    The job of the NSA is to find what they're guilty of.

    /s (for those who have a broken sarcasm detector)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Mar 2017 @ 6:08pm

      Re:

      Sorry, that should not be sarcasm because it is actually true.

      There is a reason that there are so many laws that you cannot hope to steer clear of breaking one. And yes, you are legally required to know every single one of them because ignorance is no excuse, while cops, the people enforcing the law are not required to know them. None of this is simple conjecture but based on multiple courts cases with these exact decisions being made.

      So forget the people with a broken sarcasm detector, you have a broken sarcasm creator.

      reply to this | link to this | view in chronology ]

  • identicon
    Gallumhrasha, 16 Mar 2017 @ 6:13pm

    Didnt Senator Wyden see the movie Snowden? The NSA is spying on everyone via XKEYSCORE

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    My_Name_Here, 16 Mar 2017 @ 8:11pm

    Shouldn't you be busy selling T-shirts for your lawsuit instead of pandering to your pirate overlord Wyden, Masnick? Planning for a 2020 campaign, are we?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Mar 2017 @ 11:28pm

      Re:

      If this is all you have to offer, Whatever, it's not a surprise why you won't log in.

      Other websites would have banned you. Here, the biggest slap on the wrist you get is getting hidden behind a mouse click, and your response is to bitch the fuck out of everyone else.

      reply to this | link to this | view in chronology ]

    • identicon
      My_Name_Here, 18 Mar 2017 @ 1:36am

      Re:

      Sad when the best that Techdirt can do is to post in my name. How classy can you guys get?

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 17 Mar 2017 @ 4:09am

    While his efforts are appreciated, it doesn't matter. Were there severe punishments when the lies were told to the Congress? No? So it will keep happening.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 18 Mar 2017 @ 1:11am

    Wyden doesn't "want to know".

    Once Again, Senator Wyden Wants To Know How Many Americans Are Being Surveilled By The NSA

    He is in the Committee tasked with overseeing Intelligence Operations and thus as well informed as a Senate member can hope to be.

    What Wyden wants is to tell how many Americans are being surveilled by the NSA without getting thrown out of the committee and prosecuted for unveiling classified material.

    So all he can do is ask open questions, and he is not allowed to flinch when the officials lie into his and other Senators' faces even if he knows.

    It's been happening over and over, with word games and equivocating and straight lies even in the face of questions given days in advance for preparation, and the criminals, oath breakers and perjurers, get away without even a slap on the wrist each time.

    So the main objective Wyden achieves is showing other senators and the constituency who they are dealing with. And hope that eventually they will care more than fuck all.

    A long journey and an uphill battle as Americans become stupider and stupider and proud of it.

    reply to this | link to this | view in chronology ]

  • identicon
    Mephistophocles, 18 Mar 2017 @ 3:48pm

    Theatre

    Wyden is committing a grand act of theatre, most likely because he thinks it'll keep him in office. That's all. He doesn't want answers; if he really did, he'd have them (and actually, he may, but that's beside the point).

    In any case, the answers are clear and obvious. How many Americans are under surveillance? That'd be "all of them." How often? "All the time." The NSA will never admit that, because it's illegal and they're afraid the repercussions of admitting it would be more than they care to deal with at the moment.

    It's simple logic to assume that the NSA obtains all communications, of all kinds, from everyone who uses electronic communications devices, and keeps them as long as they can (they likely have never deleted any), for two simple reasons: 1) they can, and 2) no one need know they do. And no, they don't redact American's personally identifiable information, because they don't have to, and because no one they don't want to know that ever will know that.

    Any assumption otherwise has to based on another assumption - that the NSA has a moral compass and the restraint to let it govern them. There's simply no evidence of either.

    reply to this | link to this | view in chronology ]


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