Privacy, security experts spar over emails, calls ‘incidentally’ caught by NSA surveillance

Privacy and national security analysts sparred Tuesday over suggestions to further limit law enforcement access to Americans’ phone calls and emails that are swept up as part of the National Security Agency’s surveillance of foreigners’ communications.

The FBI and other agencies should obtain a warrant to search data gathered “incidentally” on Americans through spying programs authorized under Section 702 of the Foreign Intelligence Surveillance Act, said Elizabeth Goitein, a co-director of the Liberty and National Security Program at the Brennan Center.

Ms. Goitein and other analysts testified Tuesday before the Senate Judiciary Committee in a hearing investigating concerns about the effectiveness of the law that authorizes spying programs like Prism and Upstream, details of which were leaked by former National Security Agency contractor Edward Snowden. Congress must renew the FISA Amendments Act before the end of 2017.

While the spy programs are meant to target foreigners, an unknown number of Americans’ records are swept up in the surveillance. Data recently disclosed by the Office of the Director of National Intelligence showed that in 2015, Section 702 surveillance targeted 94,368 foreign people, groups or entities outside the United States.

Senators underscored the desire for further information about the number of Americans swept up in the programs as lawmakers evaluate it.

“Despite these concerns about Americans’ communications being swept up, we still do not know how much of our data is collected under this authority,” said Sen. Patrick J. Leahy, Vermont Democrat, acknowledging that the intelligence community is working on a way to collect and disclose such figures. “That effort is long overdue, and it will be critical as we consider the reauthorization of this law.”

While Ms. Goitein testified in favor of further restrictions on law enforcement access to the raw data gathered through the programs, which she said authorities can use in domestic criminal investigations, others said such limits would undermine the success of the programs and make it more difficult for agencies to share intelligence.

Rachel Brand, a member of the independent Privacy and Civil Liberties Oversight Board, said there are important reasons to permit FBI agents to query information included in the FISA database.

“An investigator looking into a non-national-security crime such as bank fraud might have no reason to expect a connection between his investigation and 702 information. But if such a connection existed — due to a terror financing link, for example — it could be extremely important for the FBI’s national security personnel to be alerted to that connection,” she said, providing one such example.

However, Ms. Brand said she understood the concern about law enforcement’s use of such information. She said she has suggested that high-level approval be required to use such information in criminal proceedings.

Matthew Olsen, former director of the National Counterterrorism Center, fully supported reauthorization of the law. He said its authority “has played an indispensable role in protecting the nation from terrorist threats.”

Rebuilding a wall between foreign intelligence and criminal investigative work is problematic to those trying to work together on national security issues, said Kenneth L. Wainstein, former homeland security adviser to President George W. Bush.

“The last thing we want to do is re-erect that wall,” he said. “We’ve seen the benefit of having seamless coordination and information-sharing between law enforcement and intelligence personnel.”

Judiciary Committee Chairman Chuck Grassley, Iowa Republican, said the hearing was meant to kick-start a conversation about the authority of Section 702, which he called “highly important to our national security,” well ahead of its reauthorization deadline.

The fact that the Judiciary Committee hearing was public was seen as progress by privacy advocates like OpenTheGovernment.org policy associate Jesse Franzblau, who noted that a previous hearing on the topic by the House Judiciary Committee was classified and held behind closed doors.

“Across the board, there were definitely a lot of transparency asks, which is a huge advance,” Mr. Franzblau said of senators’ questions Tuesday. “The fact it was happening in the open is a point of progress.”