USA Freedom Act coalition vets fire warning shot, demand more information about Americans’ e-mails swept in by warrantless surveillance program

I end the second chapter on the once-hidden history of surveillance 1978-2015 in Power Wars with a behind-the-scenes reconstruction of the fight to enact the USA Freedom Act and then a forward-looking focus on the “backdoor search” loophole, whereby government agents search private communications by Americans that the NSA gathered “incidentally” and without a warrant:

[T]he Freedom Act fight had demonstrated that a bipartisan House majority, combined with a “sunset” deadline that risked letting the entire law expire if no bill at all passed, could overcome resistance. The FISA Amendments Act was set to expire on December 17, 2017. …

Congress may yet impose further checks and balances on when government agents may search surveillance databases for incidentally collected private communications of Americans — regardless of which legal authority the government used to collect them. But as Obama’s time in power neared its end, there was little sign that he would be the president who ushered in that change.

That fight began to take shape today when 13 members of the House Judiciary Committee from both parties sent a bipartisan letter to James Clapper, the director of national intelligence, asking him to answer what has been one of the most significant open questions about the National Security Agency’s warrantless surveillance program: how many private messages of Americans it sweeps up under the FISA Amendments Act.

The government has been reluctant to provide that information, saying it is too difficult to come up with a reliable estimate. But with the FISA Amendments Act — also known as Section 702 — expiration coming, the lawmakers made clear that they think they have leverage to force the executive branch to be more forthcoming.

In the House of Representatives, it will fall first to our Committee to determine whether Congress should extend Section 702 beyond its scheduled sunset on December 31, 2017. You have willingly shared information with us about the important and actionable intelligence obtained under these surveillance programs. Now we require your assistance in making a determination that the privacy protections in place are functioning as designed.

Eight Democrats signed the letter, including Rep. John Conyers of Michigan, the ranking member of the Judiciary Committee. Six Republicans did, including Rep. James Sensenbrenner of Wisconsin, a former chairman of the committee who played a major role in the enactment last June of the USA Freedom Act, ending the NSA’s bulk collection of domestic calling records under a secret interpretation of the Patriot Act.

The Bush administration started both the warrantless surveillance and bulk data collection programs as part of its then-secret Stellarwind program after the terrorist attacks of Sept. 11, 2001. In 2008, Congress legalized a form of the warrantless surveillance program by enacting the FISA Amendments Act. It permits the government, on domestic soil, to collect international e-mails and phone calls of non-citizens abroad – even when its targets communicate with Americans.

Some people don’t want this program to keep going at all; the A.C.L.U. has been a big critic, in court and in debate. But it doesn’t seem particularly realistic that majorities exist in Congress who will want to roll it back. However, there is also dispute over what rules should apply to private messages of Americans when the program has “incidentally” collected them. Earlier this week, the government declassified a ruling by the Foreign Intelligence Surveillance Court concluding that it is constitutional for F.B.I. agents, working on criminal cases, to search for Americans’ names and e-mail addresses in the program’s repository.

Some lawmakers want to require the F.B.I. to get a warrant before conducting such a search, and the House has twice voted for amendments to do that, only to have leadership drop the amendment in conference with the Senate. But the public debate over that proposal has been impaired by a lack of information about how many American messages the government is collecting without a warrant. (The N.S.A. also incidentally collects Americans’ communications when the agency is operating abroad under Executive Order 12333 and is permitted to vacuum up content in bulk without targeting anyone; the volume of that collection is also unknown. Members of Congress so far don’t seem particularly aware of this wrinkle.)

The letter is not the first time the Obama administration has been asked to shed light on the scale of incidental collection. For years, Senator Ron Wyden, Democrat of Oregon, has asked for data on the question. And in 2014, the Privacy and Civil Liberties Oversight Board, an independent watchdog agency, recommended in a report about the warrantless surveillance program that the government annually say how many phone calls and e-mails involving Americans it has intercepted.

But the government has declined, arguing that it would be too difficult and resource-intensive to come up with an exact count.  In a February 2016 follow-up report, the privacy board said that the N.S.A. had “considered various approaches” to carrying out its recommendation, it had also “confronted a variety of challenges” to doing so.

Still, the letter sent by the lawmakers on Friday pointed out that the N.S.A. has already shown that it can study a sampling of raw intercepts to get a “rough estimate” of what is in them because it did so in 2011 in response to a problem that arose before the Foreign Intelligence Surveillance Court.

“We acknowledge that this estimate will be an imperfect substitute for a more precise accounting—but surely the American public is entitled to some idea of how many of our communications are swept up by these programs,” they wrote.