Wyden Seeks Number of Americans Swept Up in 702 Surveillance; Coats Says It's Too Hard
Sen. Ron Wyden, D-Ore., told reporters Wednesday he will continue to try to find out the number of Americans whose personal communications are intercepted annually through Section 702 of the Foreign Intelligence Surveillance Act Amendments Act. Earlier, Wyden told Director of National Intelligence Dan Coats at a Senate Intelligence Committee hearing that Coats went back on a promise to find that estimate.
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Lawmakers and civil liberties groups have long pressured for an estimate of the number of Americans whose information has been incidentally collected (see 1704070041). The 702 program is aimed at collecting information on foreign persons located overseas and is prohibited from targeting any U.S. person around the world or foreigners in the U.S. Some lawmakers and privacy advocates have maintained that many Americans are collected through this program and that intelligence agencies can "reverse target" those Americans, a practice that is prohibited under the law.
"We are going to pull out all the stops on this issue because what [Coats] said today was not only a retreat from his pledge back in April to produce what he called a metric, but it's a break even with his predecessors," Wyden told reporters. "When he said it would be a threat to national security to do anything at all, even a sampling, I said, 'Look we've been in a lot of tough fights before.' It took me months and months to prepare to ask [former DNI James] Clapper that question about whether the government collected any type of data at all on millions of Americans. But we stayed with it, we got an answer, he lied, and that was the key to getting the Freedom Act passed. We've got a lot of work."
At the hearing dominated by questions surrounding Russian interference in the 2016 election, Coats, NSA Director Michael Rogers, Deputy Attorney General Rod Rosenstein and FBI acting Director Andrew McCabe said they support reauthorizing FISA, set to expire Dec. 31. They said the program helps prevent attacks and has strong oversight.
Coats said he spoke with Rogers and other experts to find out why it has been so difficult to come up with the number. NSA made a "herculean" effort, but "it remains infeasible to generate an exact, accurate, meaningful and responsive methodology that can count" it, he said. NSA would have to do significant research to determine who are U.S. persons, raising privacy concerns, he said, adding counterintelligence, counterterrorism and counter proliferation analysts would have to be diverted.
"This morning you went back on that promise and you said that even putting together a sampling, a statistical estimate, would jeopardize national security. I think that is a very, very damaging position to stake out," said Wyden. He said liberty and security are not mutually exclusive but told Coats that he rejected that.
"What I pledged to you," replied Coats, "in my confirmation hearing is that I would make every effort to try to find out why we were not able to come to a specific number of collection on U.S. persons. I told you I would consult with Admiral Rogers. I told you I would go to the National Security Agency to try to determine whether or not I was able to do that." He said NSA made "extensive efforts" to come up with an answer and couldn't. Wyden interrupted and said Coats previously said they were working to come up with a relevant metric. "But we were not able to do it, to achieve it," responded Coats. "Working to do it is different than doing it."
Sen. Tom Cotton, R-Ark., asked witnesses if they support permanent reauthorization. All said yes. Cotton said he and Republican co-sponsors introduced legislation Tuesday that would make FISA permanent.