Government Must Reveal How Many Americans Surveilled by “Foreign” Intelligence Programs

​The intelligence community’s disregard for solemnly made pledges reminds us of the hit song by the ‘80s new wave band Naked Eyes: “You made me promises promises/
Knowing I'd believe …”
 
Forgive the Boomer reference, but the failure of the intelligence community to live up to its promises is also a golden oldie.
 
For example, in 2017, Dan Coats was asked in a Congressional hearing if he would, if confirmed as Director of National Intelligence, provide public estimates of the number of people inside the United States with communications “incidentally” collected by National Security Agency surveillance. Coats said he would “do everything I can” to work with the head of the NSA “to get you that number.” That pledge was followed up by NSA Deputy Director Richard Ledgett to provide an estimate by the end of that year.
 
This would have been important information for the reauthorization of FISA Section 702 in 2018, as well as congressional debate and reauthorization of this same authority this year. Section 702 allows the NSA to scour global networks in search of the communications of foreign spies and terrorists. Given the interconnected nature of global communications, surveillance technology cannot help but also collect the private communications of Americans at home, potentially violating the Fourth Amendment. Having a ballpark estimate of how many Americans have had their privacy rights implicated by federal surveillance would be very useful guidance for congressional oversight of the intelligence agencies.
 
Yet, Director Coats and the NSA backtracked. Their estimates never came. Their excuse was that separating Americans from this global trawl would be too impractical, somewhat like counting all the krill picked up in a large fishing net. But this argument, to strain a metaphor, doesn’t hold water. The watchdog Privacy and Civil Liberties Board made it clear in 2023 that in order to comply with the Constitution’s Fourth Amendment, as well as directives from the Foreign Intelligence Surveillance Court (FISC), the NSA already filters out domestic communications in its programs. In 2022, Princeton researchers published a methodology for a rough estimate of how many people in the United States have their communications caught up under programs authorized by Section 702. Under such partial proxies, Congress could at least have some idea of how many Americans have their communications captured by their government.
 
Beyond ballpark numbers, Congress needs to know how government agencies – the FBI in particular – might be using Americans’ personal information gleaned from Section 702 programs for warrantless domestic surveillance. Despite solemn promises by the champions of the intelligence community that this never happens, the FISC Court revealed that such surveillance has been used by the FBI in ordinary domestic cases – evidence against American citizens that is never revealed in court.
 
Frustrated by the government’s many broken promises, PPSA joined with Restore The Fourth and 22 other civil liberties organizations across the ideological spectrum – ranging from the American Civil Liberties Union to Americans for Prosperity – to send a letter to the directors of national intelligence and NSA. We demand access to numbers that the government clearly has and pledged to Congress to provide.
 
Director of National Intelligence Avril Haines and NSA Director Gen. Timothy Haugh would be well advised not to toss this one into the round file. The reauthorization of Section 702 passed by one tie-breaking vote in the House this year. If the government once again fails to keep its promise, it will not augur well for the next reauthorization of Section 702 on the legislative calendar for 2026.