James Clapper testifies during the Senate Select Committee on Intelligence hearing. (photo: AP)
NSA
and CIA Double Their Warrantless Searches on Americans in Two Years
By Jenna McLaughlin, The
Intercept
04 May 16
From
2013 to 2015, the NSA and CIA doubled the number of warrantless searches they
conducted for Americans’ data in a massive NSA database ostensibly collected
for foreign intelligence purposes, according to a new intelligence
community transparency report.
The
estimated number of search terms “concerning a known U.S. person” to get
contents of communications within what is known as the 702 database was 4,672 —
more than double the 2013 figure.
And
that doesn’t even include the number of FBI searches on that database. A
recently released Foreign Intelligence Surveillance Court ruling confirmed that
the FBI is allowed to run any number of searches it
wants on that database, not only for national security probes but also to hunt
for evidence of traditional crimes. No estimates have ever been released of how
often that happens.
Under
Section 702 of the Foreign Intelligence Surveillance Act, the NSA collects
hundreds of millions of digital communications at rest and in transit from the
major internet backbones running in and out of the U.S., as well as from
Google, Facebook, YouTube, and other companies, involving “targets” overseas.
Americans’
communications are constitutionally protected from warrantless searches, but
when those communications are swept up by the NSA “incidentally” to its
main goal, those protections have been essentially ignored.
The
Office of the Director of National Intelligence has said the practice of
searching the database for American communications is not “unlawful” because
the content is collected legitimately in the first place — and because there
are protections against sharing Americans’ identities unless it’s absolutely
necessary.
But
many privacy activists, as well as lawmakers including Sen. Ron Wyden, D-Ore.,
and Rep. Thomas Massie, R-Ky., describe this practice as a “backdoor” search
because it’s a way to gather evidence on Americans without getting court
approval.
“If
intelligence officials are deliberately searching for and reading the
communications of specific Americans, the Constitution requires a warrant,”
said Wyden in a press release in June
2014.
The
ODNI director of legislative affairs, Deidre M. Walsh, wrote in a 2013 letter
to Wyden that the NSA approved 198 searches, or “queries,” for the content of
American communications in the 702 database — while the CIA approved “fewer
than 1900” queries — for about 2100 overall.
That’s
the number that more than doubled in 2015. But the ODNI doesn’t make its
transparency reports easy to understand, leaving open the possibility of
misinterpretation. For instance, the 2015 figure includes “recurring queries” —
basically searches using the same terms more than once. In 2013, the NSA said
its estimate “may” have included repeated queries counted individually. That
could account for some of the increase between 2013 and 2015.
However,
the number of queries for metadata — information about who the communications
are to and from, and so on, rather than their content — also went up
dramatically.
According
to the 2014 letter to Wyden, NSA conducted “approximately 9,500 queries” of
American metadata in 2013, including repeated queries — and excluding CIA
searches, because the agency doesn’t track that information.
In
2015, the ODNI reported 23,800 searches on metadata — excluding “one IC
element” that couldn’t provide statistics — presumably the CIA.
“The
number of backdoor searches doubling since last reported shows that warrantless
Section 702 surveillance is a significant and growing problem for Americans,”
Jake Laperruque, privacy fellow at The Constitution Project, wrote in a message
to The Intercept after reading the new report.
The
missing data from the FBI is of great concern to privacy advocates. The USA
Freedom Act, passed in June 2015, “conspicuously exempts the FBI” from
disclosing how often it searches the 702 database, the Project on Government
Oversight (POGO) wrote in a letter to the Director of National Intelligence,
James Clapper, in October 2015.
“There
is every reason to believe the number of FBI queries far exceeds those of the
CIA and NSA,” POGO wrote. “To present a fair overview of how foreign
intelligence surveillance is used, it is essential that you work with the
attorney general to release statistics on the FBI’s use of U.S. person
queries.”
The
new report also leaves unanswered how many Americans’ communications are
collected in the first place.
Fourteen
lawmakers on the House Judiciary Committee sent Clapper a letter
on April 22 demanding to know how often programs authorized under Section 702
vacuum up communications belonging to innocent Americans. Others, including
Sen. Wyden, members of the Privacy and Civil Liberties Oversight Board, and
dozens of civil liberties activist groups have been asking the same question
for years.
Clapper recently said he is
working to provide an estimate on the number of Americans caught up in the
dragnet.
C 2015 Reader Supported News
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