U.S. intelligence agencies have used their foreign surveillance authorities to search for information about Americans thousands of times, according to new disclosures from the Office of the Director of National Intelligence (ODNI).
In a new letter from the intelligence office, sent in response to questioning from Sen. Ron WydenRonald (Ron) Lee WydenCongress needs to step up on crypto, or Biden might crush it Democrats face growing storm over IRS reporting provision Best shot at narrowing racial homeownership gap at risk, progressives say MORE (D-Ore.) and published Monday, the agency defended its ability to search foreign communications for information about U.S. persons.
“Contrary to some claims, there is no loophole in the law, nor is the Intelligence Community conducting unlawful or ‘backdoor searches’ of communications of U.S. persons,” ODNI wrote.
Wyden and other surveillance critics have questioned how intelligence agencies use Section 702 of the Foreign Intelligence Surveillance Act — which allows the NSA to collect communications between foreigners abroad — to spy on U.S. persons.
Lawmakers and reform advocates have criticized the NSA’s use of “selectors,” or search terms, about Americans when searching through data collected under the Section 702 authority.
In its letter to Wyden, the intelligence office said the NSA used U.S. selectors to search for content 198 times in 2013, and to search for metadata approximately 9,500 times.
The CIA used U.S. selectors to search the 702 database fewer than 1,900 times, and the agency does not keep track of metadata searches, according to ODNI.
Because of the domestic focus of its investigations, the FBI does not keep track of the number of times it uses U.S. selectors, ODNI wrote.
“The FBI believes the number of queries is substantial,” the letter said, noting that the FBI “receives a small percentage” of the NSA’s 702 database.
During a hearing earlier this month, Wyden asked NSA Deputy Director Rick Ledgett for information about the frequency of the “backdoor” searches.
The ODNI's response to Wyden stressed that Section 702 only allows the NSA to collect information about “non U.S. persons reasonably believed to be outside of the U.S. at the time of collection.”
Wyden criticized the FBI for its failure to account for searches about U.S. persons.
The fact that the FBI cannot identify how many times it searches the 702 database using U.S. selectors “shows how flawed this system is and the consequences of inadequate oversight,” Wyden said.
The lack of accounting raises “questions about whether the FBI is exercising any internal controls over the use of backdoor searches including who and how many government employees can access the personal data of individual Americans,” he continued, pledging to pursue the issue “until it is fixed.”
Broadly, Wyden said he would continue pushing for legislation to require a warrant when an intelligence agency wants to search the 702 database using U.S. selectors.
The original USA Freedom Act — sponsored by Senate Judiciary Chairman Patrick Leahy (D-Vt.) in the upper chamber — would end warrantless “backdoor” searches.
Though the House companion bill was stripped of that provision as it headed to the House floor, the House voted as an amendment to a defense funding bill earlier this month to require a warrant when searching the 702 database for U.S. persons.
Wyden noted the House vote and pledged to urge the Senate “to follow suit.”
“If intelligence officials are deliberately searching for and reading the communications of specific Americans, the Constitution requires a warrant,” he said.
“Reformers believe that it is possible to protect Americans’ security and American liberty at the same time, and the American public expects nothing less.”