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.
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.
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.
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.