Despite Congress' repeated requests for information from the intelligence community over its primary counterterrorism surveillance tool, a hearing June 27 indicated that information isn’t any closer to surfacing. And according to one witness at the Senate Judiciary hearing on the reauthorization of Section 702, that’s because of the recent administration shift. 

Section 702 aims to thwart terrorism by authorizing U.S. intelligence agencies to collect information on foreign nationals located overseas.

Senators across committees have repeatedly called for numbers on the volume of Americans’ data incidentally collected in the government’s surveillance of overseas targets. The refrain has consistently been, “we can’t provide that.”

That came to a head at today’s hearing, “The FISA Amendments Act: Reauthorizing American’s Vital National Security Authority and Protecting Privacy and Civil Liberties,” when Sen. Lindsay Graham, R-S.C., demanded to know if his overseas conversations with the Russian ambassador had been surveilled. It wasn’t a theoretical question. Graham apparently asked the IC to produce an answer months ago and has yet to receive one. 

The witnesses’ failure to respond, save for circular, long-winded operational explanations, led an emotional Committee Chairman, Sen. Chuck Grassley, R-IA, to strike his gavel several times, instructing witnesses to answer the question, even granting Graham an extension of his five-minute examination window so the witnesses would “answer the man’s question.”

The witnesses, representatives from the National Security Agency, the Federal Bureau of Investigation, the Office of the Director of National Intelligence, and the Department of Justice, did little more but assure Graham they were looking into the request.

The intelligence community was unwavering in advocating for the wholesale reauthorization of Section 702, due to expire December 31. Bradley Brooker, acting general counsel for ODNI, said reauthorization of 702 is the intelligence agencies’ “top legislative priority this year.” There isn’t much dispute on 702’s utility, though one might think there was given the witnesses' numerous examples of times it’s successfully thwarted crimes. The question at hand is whether to reauthorize 702 as is, or to amend it, and whether reauthorizing it should include another sunset provision for later reevaluation.

Noting the heated exchange between Grassley, Graham and the witnesses, Sen. Dick Durbin, D-Illinois, said of course all the senators are concerned about their privacy in diplomatic dealings, “But what about the privacy of those not in this room?” he asked. “How are we supposed to believe transparency is really the guiding principle … if you can’t even identify for us how many Americans have been innocently swept up into this effort? … Mr. Booker, how are we supposed to have confidence you’re being careful not to involve more people than necessary to keep America safe?”

Brooker touted the intelligence communities’ frequent refrain of late: “We have not once found an intentional violation of the law,” Brooker said.

He added the intelligence community’s inability to answer the senators’ question isn’t for lack of trying, but doing so would require the NSA to conduct research on people – people who aren’t of NSA interest – simply to determine if they were U.S. persons. In addition, it would shift resources from identifying clear threats to identifying non-threatening Americans.

Sen. Al Franken, D-MN, wasn’t buying it.

He asked the agencies to keep trying to come up with an estimate, noting the NSA’s tech capabilities in its collection efforts would indicate the agency is surely capable of such an output, despite its claims otherwise.

“And it seems to me we are really already capable of coming up with that estimate,” he said.

In a later panel, Elizabeth Goitein, co-director of the Liberty and National Security Program, said while there was much progress made under the Obama administration, at least conversationally, about increasing transparency, the new administration has pulled back on those efforts. 

Queries and ‘abouts’

Relatedly, at question is whether the government should be required to seek a warrant to query its database of intelligence data if seeking information on U.S. persons, such as phone number or email address, in non-national security investigations.

Stuart Evans, deputy assistant attorney general for intelligence in the National Security Division at the DOJ, said legally, a warrant isn’t required.

“We are not acquiring any new information,” he said. Warrants are required for information gathering, not using already-obtained information, and a query is a “baseline investigative technique” used to rule someone in or out or connect dots quickly. “A warrant would grind these operations to a halt.”

Goitein would later argue emphatically that the only way the government got its database was to promise the FISA Court that its only interest is in foreign targets.

“The notion that once data is seized, the Fourth Amendment is done … is not actually correct.”

However, Elisebeth Collins, the only remaining board member of the Privacy and Civil Liberties Oversight Board, which issued an extensive 2014 report on 702, said the PCLOB found requiring a warrant to query databases is “not constitutionally required or advisable as a policy matter.” PCLOB’s concerns were that “such a requirement could raise the threat of rebuilding the so-called wall between intelligence and criminal investigations, and that criminal investigators needed to be aware of potentially relevant 702 information.” 

Sen. Diane Feinstein, D-CA, wanted to know whether the NSA’s recent abandonment of its “abouts” collection – that is, collection that included information about targets but wasn’t necessarily “to” or “from” a target – should be codified.

“Should we terminate completely?” Feinstein asked.

Evans said no.  

“The FISA court has on numerous occasions found ‘abouts’ collections to be lawful,” he said.  "From our perspective, this isn’t so much a legal issue as it is a technological issue."

Sunset provision

Finally, Feinstein said in her opening remarks she would only vote to reauthorize 702 if there were a sunset provision, that is, the reauthorization would again expire in five years and come up for review. However, Feinstein recommends the provision come in six years as to avoid an election year

But the intelligence community witnesses disagreed.

Morris said a sunset provision leaves 702 somewhat unsettled. He said the intelligence community wants some sense of continuity.

“It’s also important for the intelligence professionals who do the work everyday,” he said. “Permanent reauthorization certainly is a vote of confidence that they’re doing the right thing and doing the work well,” and it’s an indication the tool they use to produce valuable counterintelligence is still going to be there tomorrow, he said.

As for the committee tomorrow, it will hold a closed, classified hearing with the witnesses in hopes to gain some of the answers it couldn’t get today. 

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