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Would you believe the Inspector General from the Office of the Director
of National Intelligence said it would violate the privacy of Americans
for the IG office to tell us how many people in the United States had
their privacy violated via the NSA warrantless wiretap powers which were
granted under the FISA Amendment Act of 2008?
The annual Foreign Intelligence Surveillance Act (FISA) report [PDF]
showed that electronic surveillance increased yet again in 2011.
Applications for what the government calls "business records," but also
includes the production of tangible things, swelled from 96 in 2010 to
205 in 2011. The EFF said
those business records are one in the same as the government using the
notorious Section 215 of the Patriot Act. The FISA Amendments Act of
2008 (FAA) is up for a five-year extension, but Senator Ron Wyden said
he'd block FAA renewal until Congress received an answer from the NSA
about how many "people in the United States have their communications
reviewed by the government" under FAA powers.
As members of the Senate's Intelligence Oversight Committee, Senators
Ron Wyden and Marc Udall had previously asked the NSA for an estimate
of how many Americans have been spied upon under the FISA Amendment Act.
Last year the Office of the Director of National Intelligence replied [PDF]
that it was "not reasonably possible to identify the number of people
located in the United States whose communications may have been reviewed
under the authority of the FAA." This year, Senators Ron Wyden and Marc
Udall wrote,
"We are particularly concerned about a loophole in the law that could
allow the government to effectively conduct warrantless searches for
Americans' communications."
Sen. Wyden explained, "Before
Congress votes to renew these authorities it is important to understand
how they are working in practice. In particular, it is important for
Congress to better understand how many people inside the United States
have had their communications collected or reviewed under the
authorities granted by the FISA Amendments Act." Wyden added:
I am concerned, of course, that no one has even estimated how many
Americans have had their communications collected under the FISA
Amendments Act. Then it is possible that this number could be quite
large. Since all of the communications collected by the government under
section 702 are collected without individual warrants, I believe that
there should be clear rules prohibiting the government from searching
through these communications in an effort to find the phone calls or
emails of a particular American, unless the government has obtained a
warrant or emergency authorization permitting surveillance of that
American.
In reply to Senators Wyden and Udall, the NSA Inspector General said [PDF] said we can't tell you because that
would "violate the privacy of U.S. persons." The reply letter from
Charles McCullough, the Inspector General of the Office of the Director
of National Intelligence, was acquired by Danger Room.
McCullough wrote that the NSA inspector general "and NSA leadership
agreed that an IG review of the sort suggested would further violate the
privacy of U.S. persons." Furthermore, "obtaining such an estimate was
beyond the capacity of his office and dedicating sufficient additional
resources would likely impede the NSA's mission."
Previously, the ACLU reported that a response to its Freedom of Information Act lawsuit
about the FAA, "the government revealed that every six-month review of
the act had identified 'compliance incidents,' suggesting either an
inability or an unwillingness to properly safeguard Americans' privacy
rights. The government has withheld the details of those 'compliance
incidents,' however, including statistics relating to abuses of the
act." The Supreme Court agreed to hear the ACLU's challenge to the
constitutionality of the law, but the government claimed
"the plaintiffs should not be able to sue without first showing that
they have, in fact, been monitored under the program - information that
the government refuses to provide."
EPIC Director Marc Rotenberg testified
before the House Judiciary Subcommittee on FAA, asking for "increased
transparency and new public reporting of the government's surveillance
activities." The ACLU also asked Congress to fix FISA, but at every turn
the government continues to block checks and balances that could keep
this surveillance on steroid behavior under control. And now even
Senators Wyden and Udall received the bizarre statement about violating
American's privacy to give an estimate on how many of us have our
privacy invaded thanks to FAA.
Today, the House Judiciary Committee is supposed to address the "FISA Amendments Act Reauthorization Act of 2012." If, or sadly more like when, FAA is reauthorized, it will extend the provision through 2017.
