Don’t Pass Surveillance Legislation in the Dark

Politicians who support broad, unchecked government surveillance authorities are once again rushing to approve a sweeping program at the expense of Americans’ personal liberty and constitutional rights. A House bill would extend Section 702 of the Foreign Intelligence Surveillance Act, which enables massive, warrantless spying on Americans as a feature of a foreign surveillance program.

I have a bipartisan bill that would reform Section 702 to create common-sense protections for Americans’ rights, while still letting our intelligence agencies get the information they need to keep our country safe. It, and a companion bill in the House, have wide support, but neither has seen the light of day.

What’s worse, the American people – and most of Congress – have little idea about how Section 702 is actually used, how many Americans are affected by it, or even what the government interprets the law to mean.

Here are some of the major unanswered questions about this program.

• Who can be targeted by 702 spying?

A: The public doesn’t know. If you listen to intelligence agency leaders, you would think only foreign terrorists could be targeted for spying under Section 702. But when Sen. Mike Lee, R-Utah, and I asked Director of National Intelligence Dan Coats what broad categories of people could be targeted by this program, he refused to answer the question publicly.

• How many emails and other communications from Americans are collected by the government under Section 702?

A: No one knows, because the government refuses to count. I have been asking this question since 2011, and yet intelligence agency leaders refuse to come up with a number, or even a broad estimate. As recently as last spring, the Office of the Director of National Intelligence pledged to produce “a relevant metric” about just how many Americans’ communications are being hoovered up by a program intended for “foreign surveillance.” Last June, however, the DNI announced there would be no estimate at all.

• How many times does the government search for Americans’ communications without warrants?

A: No one knows, because only some government agencies count. The National Security Agency and the CIA both conduct warrantless backdoor searches of communications collected under Section 702. There are thousands of such searches for the content of communications and tens of thousands for communications records. But the FBI searches Americans’ information so frequently, it does not bother to count.

• Can the government use Section 702 to collect communications it knows are entirely domestic?

A: The public doesn’t know the answer to this fundamental question. When I asked the DNI at a hearing, he first replied no, which was reassuring. Later, he said he was answering a different question. Then he said it was classified.

Here’s a question that I can answer: Why is it important for Americans to know the answers to these questions?

Because lawmakers have a responsibility to make sure Americans understand what the impact will be of the laws they pass. Having support for the laws you pass is what makes a government legitimate.

That’s why people were so outraged by revelations of secret mass surveillance a few years ago. And that’s why Director of National Intelligence James Clapper’s lie about mass surveillance was so damaging to public trust in government. Clapper said he made an error, but that’s not how I see it. He didn’t just lie to me, he lied to the American people.

When the intelligence community and politicians deliberately hide information from the American people, it undermines citizens’ belief in government. When politicians argue in bad faith about what laws do, it makes it easier for skeptics to dismiss everyone in Congress, in politics, as a liar. It makes it possible, even probable, for hucksters and authoritarians to take power.

Every elected official must demand better. Don’t pass surveillance legislation in the dark.

Go deeper: The Cipher Brief’s CEO and Publisher, Suzanne Kelly, recently sat down with three of the men most integral to the development of Section 702 of FISA – General Michael Hayden, Ben Powell, and Matthew Olsen, Watch the discussion.