Surveillance. (photo: Francisco Seco/AP)
Trump
Wants NSA Program Reauthorized but Won't Tell Congress How Many Americans It
Spies On
By Alex Emmons, The
Intercept
04 March 17
The
White House wants Congress to
reauthorize two of the NSA’s largest surveillance programs before they expire
at the end of the year.
One of
them scans the traffic that passes through the massive internet cables going in
and out of the U.S. and ends up catching a vast number of American
communications in its dragnet.
But
how many? Lawmakers have been asking for years, and the intelligence community
has consistently refused provide even a ballpark figure.
At a
hearing of the House Judiciary Committee on Wednesday, several members
expressed frustration that intelligence chiefs — first under Obama, and now
under Trump — have failed to provide any kind of estimate, even in classified
briefings.
“The
members of this committee and the public at large require that estimate to
engage in a meaningful debate,” said Rep. John Conyers, D-Mich., the leading
Democrat on the committee. “We will not simply take the government’s word on
the size of the so-called ‘incidental collection.’”
Section 702 of the Foreign Intelligence
Surveillance Act, which lapses at the end of the year, allows the NSA to
collect vast amounts of domestic internet traffic as long as it maintains it is
only “targeting” foreigners. Documents provided by NSA whistleblower
Edward Snowden described two huge surveillance programs that operate under that
authority. One program, PRISM, allows the NSA to
collect data in bulk from tech companies like Google, Facebook and Apple. The
other program — Upstream — allows the NSA to tap the massive internet cables
that carry information in and out of the U.S. and search for communications
involving certain foreign “targets” or “selectors”.
As the
NSA scans the cables for information on its targets, it also collects
information on the Americans those targets are communicating with, as well
as entirely unrelated information,
such as communications from people who happened to be in the same chat room as
a target. Furthermore, the targets can be selected for any “foreign
intelligence purpose” — not just counterterrorism.
As a
result, the NSA ends up collecting information on a huge number of U.S.
persons without getting a warrant – collection they describe as “incidental,”
but which is really inevitable. And using what critics call the backdoor loophole, law
enforcement officials then search through that material for information on Americans.
That
collection on Americans is part of how the law was designed, according to
Elizabeth Goitein, a lawyer for the Brennan Center for Justice. “Incidentally,’
is the terminology used by the government,” Goitein testified at Wednesday’s
hearing. “But it is part of the design of the program to acquire communications
of foreign targets with Americans.”
The
issue of “incidental collection” has come into the spotlight in the weeks since
Trump’s inauguration. Last month, anonymous members of the intelligence
community leaked information about phone calls between the Russian ambassador —
who was understandably targeted for surveillance – and Trump’s former national
security adviser, Michael Flynn.
Flynn’s
resignation spooked some Republicans who
worried about that ability being used improperly. “Whatever your political
persuasion is, for me it had a chilling effect,” said Rep. Raúl Labrador,
R-Idaho. “My political opponents could use my personal information, that they
maybe gathered in some private information, against me in the future. That
should be quite terrifying to anybody, whether you’re a Republican or
Democrat.”
Conyers,
along with a bipartisan group of 14 Democrats and Republicans, sent a letter to
the director of national intelligence in April last year, asking “simply for a
rough estimate” of how many Americans had their communications collected.
Conyers
sent a follow-up letter in December. “The intelligence community has not so
much as responded to our December letter,” Conyers said Wednesday. “I had hoped
for better.”
Sen.
Ron Wyden, D-Ore., first requested an estimate in 2011 — even before the
Snowden disclosures demonstrated the reach of the surveillance programs. The
federal Privacy and Civil Liberties Oversight board recommended in 2014 that the NSA start
keeping track of the number. In 2015, more than 30 civil liberties
organizations wrote a letter to the Intelligence Community’s Civil Liberties
Protection Office, demanding the same thing, and got an unresponsive reply.
The
intelligence community insists that it doesn’t keep track, in part because
doing so would require it to identify which phone numbers and computer IP
addresses belong to American citizens. April Doss, a former NSA lawyer,
told the committee that it would require the NSA to de-anonymize everyone in
their communications. “In my view, the collection and maintenance of that
reference information would itself pose significant impacts to privacy,” she
said.
But
Goitein noted that the NSA already uses computer IP addresses to approximate
who is a U.S. citizen for other purposes, so it would be easy for them to
estimate how many Americans’ communications they collect.
“The
NSA has determined that the IP address is an accurate enough indicator of a
persons status … to use it to filter out the wholly domestic communications
that the NSA is prohibited from acquiring,” she testified. “If it’s accurate
enough to enable the NSA to comply with that constitutional obligation, then
it’s certainly accurate enough for the estimate.”
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