WASHINGTON ― There was at least one remarkable revelation from Wednesday’s Senate Intelligence Committee hearing that had nothing to do with President Donald Trump and Russia: Top national security officials declared they couldn’t estimate how many Americans get ensnared in their massive intelligence sweeps.
While Trump and Russia dominated the hearing, it was ostensibly called to review the Foreign Intelligence Surveillance Act that expires this year, as well as its controversial Section 702, which allows some “incidental” collection of data on citizens when the National Security Agency targets foreign subjects overseas.
One key element lawmakers and civil liberties groups have been hoping to learn for years is how many U.S. citizens get swooped up in that data collection.
Dan Coats, the new director of national intelligence, had pledged to try and get that information. He failed to deliver, arguing it was too hard and would hurt national security to even try.
“It remains infeasible to generate an exact, accurate, meaningful, and responsive methodology that can count how often a U.S. person’s communications may be incidentally collected under 702,” Coats told senators.
“I want to be clear here,” he continued. “To determine if communicants are U.S. persons, NSA would be required to conduct significant additional research trying to determine whether individuals who may be of no foreign intelligence interest are U.S. persons.”
Coats argued that it would be a waste of resources to task NSA analysts with finding out, and they might end up violating people’s privacy by carrying out such additional investigation. Even if the agency ignored those concerns, “we still do not believe it is possible to come up with an accurate, measurable result,” Coats said.
His argument did not sit well with Sen. Ron Wyden (D-Ore.), who had extracted the pledge from Coats to try and find a number.
“As recently as April, you promised Americans that you would provide what you called a relevant metric for the number of law-abiding Americans who are swept up in the FISA 702 searches,” Wyden told Coats. “This morning, you went back on that promise. And you said that even putting together a sampling, a statistical estimate, would jeopardize national security. I think that is a very, very damaging position to stake out.”
Coats did not explain in the public hearing why it is so difficult for the intelligence community to say how many Americans’ communications get gathered up.
He said he would explain in greater detail in a closed session, but recent events suggest the NSA is highly aware of the data is takes in from citizens and others in the United States.
Late last month, the Foreign Intelligence Surveillance Court ― which oversees spying activities and issues warrants when Americans are involved ― released a report that detailed how the NSA was improperly vacuuming up data related to Americans who were merely mentioned in electronic communications overseas.
Much of that activity happened over the previous five years, from 2011 through 2015, but the NSA did not tell the court about it until the fall of 2016, when the court had to carry out its annual review and reauthorization of the intelligence activities and protections for Americans.
The court said the delayed notification was a sign of an “institutional lack of candor” by the NSA, and the violations represented a “very serious Fourth Amendment issue.”
Further, the NSA’s inspector general in a recently declassified report was able to cite very specifically how often the agency failed to comply with protections for U.S. persons over the three-month stretch in 2015. For instance, the report found that 5.2 percent of the agency’s “upstream” queries of internet records where a U.S. person was mentioned overseas broke the rules. Indeed, nearly one in 10 queries violated protections for citizens, according to the report.
Senators did not press the officials on those recent reports, although Coats said in his prepared remarks that none of the violations were intentional, and that the agency was solving the problem by stopping the collection of “about” data. Such data includes U.S. people who are merely mentioned in a communication, and are not the people who are the direct sender or recipient of a message.