A Senate Democrat on the Intelligence Committee is pressing the nation’s top spy chief to clarify whether FISA Section 702, an expiring law used by the National Security Agency to conduct broad international surveillance, can be used to domestically target Americans.
Oregon Democratic Sen. Ron Wyden asked Director of National Intelligence (DNI) Dan Coats in June if “the government [can] use FISA Act Section 702 to collect communications it knows are entirely domestic.”
Section 702 of the 2008 Foreign Intelligence Surveillance Amendments Act authorizes NSA to tap the physical infrastructure of internet service providers, like fiber connections, to intercept foreign emails, instant messages, and other communications belonging to foreign nationals as they exit and enter the U.S.
Unlike domestic NSA surveillance programs that largely collect metadata — information like when a message was sent and received, but not the message itself — Section 702 includes the actual content of intercepts.
“Not to my knowledge,” Coats responded during a congressional oversight hearing. “It would be against the law.”
Privacy advocates suspect Section 702 creates a loophole for NSA to “incidentally” collect data belonging to Americans that could amount to millions of warrantless intercepts. Wyden, who as a member of the Senate Intelligence Committee is privy to classified briefings from Coats and other intelligence agencies, seems to have suspicions of his own.
After the hearing reporters sought clarity from Coats, to which the Office of the Director of National Intelligence (ODNI) responded in a letter.
“Section 702(b)(4) plainly states we ‘may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.’ The DNI interpreted Senator Wyden’s question to ask about this provision and answered accordingly,” the letter from ODNI reads.
Wyden cryptically responded to the ODNI letter, saying “[t]hat was not my question,” and asked Coats to “provide a public response to my question, as asked” during the hearing.
Coats has so far declined to provide that response. In a letter to Coats Monday Wyden again asked the DNI to “respond publicly to the original question.”
“As I noted in my previous letter, following the hearing, your office responded from inquiries to reporters by answering a different question,” Wyden wrote.
The episode is eerily reminiscent of a March 2013 exchange between Wyden and then-DNI James Clapper, when the senator famously asked the Obama administration’s spy chief whether NSA collects “any type of data at all on millions or hundreds of millions of Americans.”
“No sir,” Clapper answered. “Not wittingly.”
Months later Americans found out Clapper’s answer was untrue when former NSA contractor Edward Snowden leaked the existence of widespread agency surveillance programs intercepting data belonging to millions of Americans. Clapper later claimed he thought Wyden was asking a different question: whether NSA was listening to Americans’ phone conversations.
“I thought, though in retrospect, I was asked ‘when are you going to start–stop beating your wife’ kind of question, which is, meaning not answerable necessarily, by a simple yes or no,” Clapper later told NBC. “So I responded in what I thought was the most truthful or least untruthful manner, by saying, ‘No.’”
“Going back to my metaphor, what I was thinking of is looking at the Dewey Decimal numbers of those books in the metaphorical library,” he continued. “To me collection of U.S. persons’ data would mean taking the books off the shelf, opening it up and reading it.”
Wyden, who knew Clapper’s answer was untrue from Senate intelligence briefings, recently said he’d “spent six months teeing it up to ask that question,” and that he’s been just as careful with the question he asked Coats, suggesting there’s more to the answer than Coats provided in June.
“I’m not dropping this,” Wyden said in July. “And to say, ‘Oh, he responded to something different,’ I’ll let you draw your own conclusions on that.”
Snowden in a March interview said using Section 702 to surveil Americans comes down to little more than “word games.”
“These intelligence agencies…they’re saying to them, collect doesn’t mean that we copied your communications, that we put it in the bucket, that we saved it in case we want to look at it,” he told The Intercept. “To them, collect means that they take it out of the bucket, and actually look at it and read it.”
Section 702 expires at the end of December unless Congress renews the law.