In an effort to discern how many Americans are being swept up in NSA surveillance under a law that authorizes the agency to target foreigners overseas, a coalition of more than 30 privacy and civil liberties groups on Thursday demanded that U.S. spy chief James Clapper determine and publicly disclose such information.
In a letter (pdf) addressed to Director of National Intelligence (DNI) Clapper, groups including the ACLU, the Brennan Center for Justice, and the Sunlight Foundation request "certain basic information about how Section 702 of the Foreign Intelligence Surveillance Act (FISA) affects Americans and other U.S. residents."
The law known as Section 702—which will expire in 2017 unless it is reauthorized—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.
Yet as the Brennan Center explained in a press statement:
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.
Despite all this, the NSA "refuses to provide even an estimate of how many Americans' communications are picked up and handed over to the FBI," said Elizabeth Goitein, co-director of the Brennan Center's Liberty and National Security Program. "And the FBI won’t reveal how many times it searches this data, without a warrant or any judicial oversight, for information about American citizens."
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This information is critical to an informed public debate over pending reauthorization, the letter declares.
"Americans deserve to know the truth about so-called 'foreign intelligence' surveillance," Goitein added. "The fact that the NSA has made no effort to determine how much of its intake consists of Americans' communications is actually quite alarming."
The letter notes that U.S. Sen. Ron Wyden (D-Ore.) and former U.S. Sen. Mark Udall (D-Colo.) made repeated requests for such an estimate. While the NSA has said that doing so would itself violate Americans' privacy because it would require the NSA to examine the content of communications, the privacy organizations begged to differ.
"It does not serve Americans' privacy to keep them in the dark about how often the NSA scoops up their phone calls and e-mails," said Goitein. "The law requires the NSA to minimize collection of Americans information, and the NSA's mission statement includes protection of privacy and civil liberties. How can the NSA claim to be protecting Americans' privacy if it has no idea how much data about Americans it's collecting?"