WASHINGTON – Lawmakers on the House Judiciary Committee in a scolding letter to Director of National Intelligence Dan Coats this week demanded an estimate for the number of U.S. citizens that DNI and the National Security Agency have monitored through Section 702 of the Foreign Intelligence Surveillance Act.
FISA Section 702 enables agencies to track international communications in pursuit of intelligence on terror plots and threats to national security. The surveillance program targets non-U.S. citizens, but data from American citizens is collected incidentally if they are in contact with or mentioned by foreign targets under surveillance. Lawmakers have been requesting estimates on this data collection for months so that they can come to a conclusion on whether to reauthorize Section 702, which expires on Dec. 31.
On April 7, several members of the committee wrote to Coats requesting a public estimate for the number of U.S. citizens subject to surveillance, with an April 24 deadline for the update. DNI did not meet that April deadline; instead, Coats appeared before the Senate Select Committee on Intelligence in June, when he told Senate lawmakers that producing a public estimate would be “infeasible.”
“After more than a year of studying the matter, it has become clear that NSA is unable to develop an accurate and meaningful methodology (to complete this project),” Coats told the committee.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) reminded Coats in Tuesday’s letter that their committee holds primary jurisdiction over FISA.
“In the ordinary course of business, we would be troubled by your decision to ignore our request for so long, without so much as an explanation for the delay,” the letter reads. “In this particular instance, our members are actively debating the reauthorization of Section 702. Failing to tell us that you will not deliver on this project – or even provide us with any meaningful advance notice of your testimony – is simply unacceptable.”
The lawmakers requested that Coats provide the requested information, “in classified form if necessary,” by July 7. Goodlatte and Conyers also asked for information on the methodologies used for the project and the resources needed to finish the program.
National Security Agency Director Adm. Mike Rogers, Deputy Attorney General Rod Rosenstein and Acting FBI Director Andrew McCabe have lobbied for the renewal of FISA. Coats while appearing before Senate lawmakers noted that “there have been no instances of intentional violations of Section 702.” According to Sen. Diane Feinstein (D-Calif.), there were 106,469 authorized targets out of 3 billion internet users in 2016. About 2,000 U.S. identities were “unmasked” under the program, meaning the person’s identity was disclosed internally at the request of select authorized individuals.
Julian Sanchez, a senior fellow at the Cato Institute, who focuses on technology, privacy and civil liberties, said in an interview on Thursday that it’s impossible to know exactly how many Americans have been subject to the surveillance program, based on responses from DNI. He said the number could be in the tens of thousands or hundreds of thousands, based on the fact the agencies are reviewing billions of lines of internet communication. Though DNI has cited the technological challenges and sheer volume of surveillance as reasons for not disclosing an estimate, Sanchez said a skeptical observer would say that officials are trying to avoid creating a firestorm over the truth.
“Part of it is probably technical challenges, and part of it is that that number is enormous,” Sanchez said, noting that it would be unrealistic to expect an exact count but an estimate should be reasonable.
Sanchez said the public should be the judge on whether agencies are finding a proper balance between compromising privacy and gaining vital intelligence information.
“To not even know how much they are intruding makes it impossible to know whether we should be concerned about what they’re doing. We don’t have a sense of the balance between privacy and security,” he said. “How much privacy are we giving up? Are we giving up a little for a lot of benefit, or are we giving up a lot of privacy for not much more benefit beyond what they could do with a narrower or less intrusive methods?”