The Obama administration was on track to come up with an estimate of how many Americans’ information is snared by the government’s foreign surveillance — then the Trump administration took over and things got bogged down.
Now that has turned into a significant hiccup as the intelligence community asks Congress to renew those surveillance powers before they expire at the end of the year.
Some powerful members of Congress have demanded that the Trump administration restart efforts to come up with an estimate, saying Americans deserve to know who, exactly, is being caught up in the U.S. dragnet on electronic communications.
Without it, some of them say, it could be tough to continue the surveillance programs — or at least will require some serious restrictions.
“Congress must reauthorize the program, but knowing the scope of incidental collection will help us determine what, if any, additional privacy protections are needed to ensure we honor the Fourth Amendment,” said Rep. F. James Sensenbrenner Jr., a Wisconsin Republican who has been at the forefront of these issues since writing the original Patriot Act in 2001. “If the administration does not disclose the scope of the intrusion, Congress should assume the worst and pursue more restrictive protections for Americans’ data.”
The issue stems from intelligence gathered under Section 702 of the Foreign Intelligence Surveillance Act, which allows the government to collect information from foreign sources. No American, and no person inside the U.S., is to be targeted.
But if a foreign target is talking to an American, those communications can be collected — and in some cases the American can be “unmasked,” meaning their name is attached to communications.
That happened late last year with Michael Flynn, who at the time was a top security adviser to candidate Donald Trump. His communications with a Russian official were unmasked, then somehow leaked, in a way that embarrassed Mr. Trump.
A number of members of Congress want to know how many more Americans are in Mr. Flynn’s situation, with their communications snared in what the government calls “incidental collection.”
Civil rights advocates said the Obama administration was close to producing an estimate, having worked through a number of objections and hurdles.
“We had gotten past these arguments,” said Elizabeth Goitein, co-director at the Brennan Center for Justice.
But when Mr. Trump’s team took over, that progress reversed.
New Director of National Intelligence Daniel Coats, a former Republican senator from Indiana, said he looked at the issue, talked it through with the National Security Agency and concluded it was impossible to follow through.
“I went out there. I talked to them. They went through the technical details. There were extensive efforts on the part of, I learned, on the parts of NSA to try to get you an appropriate answer. We were not able to do that,” he told Congress in a June hearing.
He said working on an estimate would siphon personnel from focusing on hostile foreign countries. He also said trying to figure out a number could mean unmasking more Americans, which would raise privacy concerns.
Timothy Barrett, a spokesman from ODNI, said analysts had been working before and after Mr. Trump’s inauguration to come up with a plan to get a number.
“In each instance, they were unable to do so,” he said.
Critics say the Obama administration seemed willing, and they are not sure what has changed substantively.
Neema Singh Guliani, legislative counsel with the American Civil Liberties Union, said the intelligence agencies are “thumbing their nose” at Congress.
“It’s that [they] don’t want to provide this number, and the change in leadership has affected that,” she said.
Rep. Zoe Lofgren, a California Democrat on the House Judiciary Committee, said Congress deserves the answer.
“We have gotten stonewalled now on a bipartisan basis,” she said. “We were on the verge at the end of December with the old administration with getting the information, which as legislators we’re entitled to get.”
A Republican House Judiciary Committee aide told The Washington Times that the committee is continuing to work with the intelligence agencies to try to come up with another way for lawmakers to get a picture of the scope of the surveillance.
The issue seems to be a bigger hurdle for the House, where top members on both sides of the aisle are demanding answers, than the Senate.
The top Democrat on the Senate Judiciary Committee, Sen. Dianne Feinstein of California, said the estimate would be good to know but isn’t necessarily key to the debate on reauthorization.
The House-Senate divide has played out in the past. The last time provisions of the Patriot Act were due for renewal, the House demanded a major rewrite, while senators were more inclined to give the intelligence community a free hand.
In the end, the House largely prevailed by using the looming expiration as a bargaining chip.
Without changes, the powers would have expired altogether, so faced with that choice, intelligence officials and senators accepted more restrictions rather than lose access to the information altogether.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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