On May 2, the Office of the Director of National Intelligence (ODNI) released its annual surveillance report, revealing that the National Security Agency (NSA) collected 151 million phone records on Americans in 2016. While that figure has dominated the headlines, another number is cause for greater concern; the report claims that the FBI used the NSA’s massive warrantless surveillance database only once in a criminal case unrelated to national security, while omitting statistics on FBI searches carried out for national security cases -- a number believed to be far greater. The missing data underscores the need for greater transparency, particularly with regard to domestic law enforcement use of information collected under the cover of foreign intelligence legal authorities.
At the core of a growing debate over surveillance taking shape in Congress is Section 702 of the FISA Amendments Act. Set to expire at the end of this year, Section 702 provides NSA the authority to conduct warrantless collection of communications of foreigners outside the U.S. As Congress considers reauthorization and reform of Section 702, the public needs more transparency to better understand how law enforcement is using military and intelligence agencies’ national security information. We still don’t know, for example, how often the FBI uses the 702 database, or how often data collected without a warrant is used in domestic criminal investigations.
While the 702 database is built on surveillance authorized for broadly defined “foreign intelligence purposes,” it is used for domestic law enforcement completely unrelated to national security. The so-called “back door searches” of Section 702 data raise serious privacy and civil rights concerns. Judges who give authorization to the NSA to collect information for national security purposes have objected to the FBI’s unrestricted access to the NSA’s 702 database. Documents obtained by the ACLU under the Freedom of Information Act (FOIA) and released last month highlight instances in which Foreign Intelligence Surveillance Court (FISC) judges have raised concerns that the FBI’s access to such data violates the Fourth Amendment.
The practice known as “parallel construction” -- where law enforcement agencies launch criminal investigations based on evidence collected via the 702 database -- then recreate the investigative trail to cover up their use of Section 702, is also a major concern for civil liberties and civil rights advocates. Sarah St. Vincent, a researcher with Human Rights Watch, recently wrote an illuminating piece about the potential growing dangers of warrantless intelligence surveillance on the criminal justice system, particularly as Attorney General Jeff Sessions pledges to ratchet up the domestic “war on drugs.”
The ODNI report is important, as it offers the first full accounting of the impact of the USA Freedom Act, legislation which ended the bulk collection programs that came to light as a result of the leaks provided by Edward Snowden. It also highlights the blind spots that remain. Despite repeated calls from open government groups, privacy advocates and members of Congress, the intelligence community still has not provided an estimate of how many communications involving U.S. residents are swept up under Section 702 programs. Congress must demand greater transparency about how our government continues to collect our private information in the name of national security in order to fully understand how the use of warrantless data impacts the criminal justice system and assure that upcoming reforms to Section 702 restore Fourth Amendment privacy rights.
Read the full report and ODNI press release here.
More resources on Section 702 and other surveillance authorities: