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Lawmakers want to know how often U.S. spies incidentally collect Americans’ data

'We are not the first to ask you for this basic information.'


Eric Geller


Published Apr 23, 2016   Updated May 26, 2021, 9:50 pm CDT

A bipartisan group of 14 House lawmakers on Friday asked the head of the U.S. intelligence community to publicly disclose information about incidental spying on Americans under a controversial foreign surveillance law.

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The letter sent to Director of National Intelligence James Clapper asked for “a public estimate of the number of communications or transactions involving United States persons” collected under Section 702 of the Foreign Intelligence Surveillance Act “on an annual basis.”

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FISA‘s Section 702 lets the National Security Agency collect—in bulk and without a warrant—the contents of foreigners’ communications. But if Americans are communicating with foreign targets, those messages get swept into the system.

While the NSA cannot target a “U.S. person”—a citizen or resident of the United States—under the law, the communications of U.S. persons are not required to be deleted when they are “incidentally” collected. The NSA must apply so-called “minimization procedures” to the data to remove identifying information before sharing it with other agencies, but civil liberties groups have raised concerns about minimization’s effectiveness as a privacy mechanism.

In August 2013, documents provided to the Guardian by former NSA contractor Edward Snowden revealed that the government’s internal rules allowed agents to search the FISA 702 database using Americans’ names or other personal details. Critics call this a “backdoor search” loophole that lets the NSA skirt stricter rules for the domestic collection of Americans’ data.

The House lawmakers who sit on the powerful Judiciary Committee expressed their concern that “Section 702 surveillance programs may not adequately protect Americans’ privacy or civil liberties.” They indicated that Clapper and others have repeatedly downplayed the civil liberties implications of incidental collection under FISA, writing that “even a rough estimate of the number of U.S. persons impacted by these programs will help us to evaluate these claims.”

Broad civil liberties coalitions have previously written several letters to Clapper asking for more information about incidental collection. Their efforts have been unsuccessful.

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Section 702 expires on Dec. 31, 2017, and many privacy hawks in both houses of Congress want to use the reauthorization debate to press for substantial reforms.

Noting that the Judiciary Committee will be the first to consider any reauthorization bill, the lawmakers told Clapper, “We require your assistance in making a determination that the privacy protections in place are functioning as designed.”

The committee members gave Clapper until Friday, May 6 to describe his plan to provide the requested information.

Clarification: The headline of this story was changed to reflect the fact that the NSA’s FISA Section 702 data collection on Americans is not accidental—as it is part of the framework of the surveillance—but is incidental, as it is not the operation’s goal.

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*First Published: Apr 23, 2016, 11:59 am CDT