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NSA Continues To Dodge 'Incidental Collection' Question, Wants Its 'About' Surveillance Program Back


It's been six years since Senator Ron Wyden first asked the Director of National Intelligence how many Americans' communications are being swept up "incidentally" in the NSA's Section 702 surveillance net. Six years later, he still doesn't have an answer.

Section 702 is up for reauthorization at the end of the year and there's still no information coming from the ODNI [Office of the Director of National Intelligence]. A group of Congressional reps is hoping to pry this info loose before the reauth, but the DNI's been able to hold Wyden off for six years, so…

A U.S. congressional committee on Friday asked the Trump administration to disclose an estimate of the number of Americans whose digital communications are incidentally collected under foreign surveillance programs, according to a letter seen by Reuters.

Such an estimate is "crucial as we contemplate reauthorization," of parts of the Foreign Intelligence Surveillance Act that are due to expire at the end of the year, House Judiciary Committee Chairman Bob Goodlatte, a Republican, and John Conyers, the panel's top Democrat, wrote in a letter addressed to Director of National Intelligence Dan Coats.

The new wrinkle here is going above the head of the DNI and straight to the President. Not that this is any more likely to force a number out of the NSA. The president is all for a clean reauthorization and troubling numbers about "incidental" domestic surveillance will only make that more difficult.

In fact, the DNI's top lawyer just finished telling a Senate committee it won't be turning in its long-overdue homework.

The intelligence community will not produce that number, acting General Counsel for the Director of National Intelligence Bradley Brooker told the Senate Judiciary Committee on Tuesday. Producing the number would take too much time and effort and potentially violate Americans’ privacy in the process, Brooker said, echoing comments DNI Dan Coats made earlier this month. The resulting number might also not be very accurate, he said.

So, that's where this stands now. The DNI promised to pull something together as the previous president headed out the door, but appears to have abandoned its minimal stab at minimal transparency now that the guy up top isn't nearly as interested in curbing the NSA's powers.

Speaking of which, the ODNI is asking to have the "about" collection put back into play, just weeks after the NSA "voluntarily" gave it up.

The panel of intelligence leaders also urged Judiciary Committee members not to restrict so-called “about collection,” in which intelligence agencies collect information from people who are not intelligence targets but mention those targets in emails and text messages.

This would appear to be aimed at Senator Dianne Feinstein's call to codify the end of the "about" collection, which would prevent the NSA from re-implementing it down the road. We haven't even gotten down the road and IC leaders are already trying to rollback the NSA's rollback.

We'll see if this latest move by Congress has any effect. Six years of Ron Wyden (and others) hammering this same question hasn't moved us much closer to seeing how much purely domestic surveillance the NSA engages in. In recent dodges by the new DNI, Dan Coats (in response to Wyden's questions) suggests the NSA is doing far more domestic dabbling than has been disclosed by everyone but the DNI (leaked documents, FOIA'ed court opinions, etc.) These are answers the public needs to have, but they're especially essential to those who will be handling the Section 702 reauthorization. Failure to produce these numbers or answer questions directly should weigh against the sort of reauth the DNI is seeking.


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