Thousands of Americans were targets of so-called “backdoor” warrantless surveillance by the NSA and other intelligence agencies last year, according to a letter sent to Senator Ron Wyden.
The missive, written by the Office of the Director of National Intelligence (ODNI) to the Senator in response to a question posed earlier this month, is plainspoken. The Office also stated that the searches in question are not based on an exploited legal “loophole.”
The House recently voted to curtail such searches by defunding them.
Section 702 of the Foreign Intelligence Surveillance Act allows the government to collect information on foreign targets that are, to use its own language, “reasonably believed to be outside of the U.S. at the time of collection.” It can’t target United States persons by law, and it isn’t allowed to reverse-target — picking a foreign target with the hopes of picking up the communications of someone thought to be in the United States.
The information collected under Section 702 authority may include the communications of Americans picked up in the process of collecting data on foreign targets. The stored information can then be queried by the NSA, and its intelligence brethren, using search terms to find the communications of Americans. Hence the term “backdoor.”
How many Americans are caught up in the mix? According to the letter, the NSA used such queries to search the communications content of 198 U.S. persons in 2013. It also made around 9,500 metadata queries for the communications of U.S. persons in the period. The number of people impacted by the meta-data searches isn’t clear.
The CIA made 1,900 queries of Section 702-sourced information “using specific U.S. person identifiers” in 2013.
Ominously, the FBI also has access to some of the pooled data, but doesn’t count how often that it queries it using U.S. person identifiers.
Senator Wyden isn’t pleased with the data. In a statement, he indicated that “[w]hen the FBI says it conducts a substantial number of searches and it has no idea of what the number is, it shows how flawed this system is and the consequences of inadequate oversight.”
Scale is also something to keep in mind. The ODNI states in its letter that “collection under Section 702 is not bulk collection, but is targeted collection based on specific identifiers.” Senator Wyden disagrees (Emphasis: TechCrunch):
While intelligence officials have often argued that it is impossible to estimate how many Americans’ communications are getting swept up by the government under Section 702, the Foreign Intelligence Surveillance Court has noted that the NSA acquires more than two hundred and fifty million Internet communications every year using Section 702, so even if US communications make up a small fraction of that total, the number of U.S. communications being collected is potentially quite large.
In short, using a law named the Foreign Intelligence Surveillance Act, the NSA and the CIA and the FBI are able to search and read the content of the communications of Americans. Brilliant.