Spies see obstacles for calculating surveillance of Americans

Federal intelligence officials would face multiple obstacles in calculating the number of Americans whose data is swept up in a large surveillance regime meant to target foreigners, the nation’s top spy said on Monday.

Intelligence agents will “do our best” to come up with a way to roughly calculate how many Americans are included in the spying, National Intelligence Director James Clapper said at a breakfast briefing with reporters sponsored by the Christian Science Monitor. 

Still, he suggested a public estimate might not be possible and that “any methodology we come up with will not be completely satisfactory to all parties.”

{mosads}The comments could be troubling for privacy advocates and a bipartisan collection of members of Congress, who asked Clapper’s office to come up with an estimate in a letter last week.

“Even a rough estimate of the number of U.S. persons impacted by these programs will help us to evaluate” how pervasive the collection of Americans’ data is, 14 members of the House Judiciary Committee wrote to Clapper last week.

Federal surveillance law includes additional protections to safeguard the privacy of Americans over foreign citizens, who do not enjoy the same rights under the Constitution.

One law in particular — Section 702 of the 2008 update to the Foreign Intelligence Surveillance Act — is meant to target foreigners but allows for some “incidental” collection of data about Americans’ activity on the internet. The National Security Agency (NSA) has used authority under the law to implement the sweeping Prism and Upstream collection activities, which monitor reams of data about people’s behavior online.

The power granted under the law “is a prolific producer of critical intelligence to this country and our friends and allies,” Clapper told reporters on Monday.

Section 702 is up for renewal at the end of 2017. Before lawmakers sign off on renewing its authority, they want to see details about how many Americans are subjected to its surveillance.

“You have willingly shared information with us about the important and actionable intelligence obtained under these surveillance programs,” the 14 members of the House Judiciary Committee, which has jurisdiction over the law, told Clapper in a letter on Friday. “Now we require your assistance in making a determination that the privacy protections in place are functioning as designed.”

Lawmakers and civil liberties advocates have asked for the data before but have yet to receive an answer.

“If we could have made such an estimate, and if such an estimate were easy to do — explainable without compromise — we would’ve done it a long time ago,” Clapper said on Monday.

“We’re looking at several options right now, none of which are optimal,” he added.

For one, he and other intelligence officials have warned that analyzing how many Americans’ data are swept up in the system would likely subject those Americans to greater privacy invasions, in order to certify their status.     

“Many people find that unsatisfactory, but that is a fact,” Clapper said.

Privacy advocates have said they accept that likelihood, since the benefits of a one-time invasion of privacy outweigh the risks of not knowing how many Americans are subject to surveillance.

The lawmakers “agree” with that tradeoff, they wrote in their Friday letter.

“This, too, is a problem we can solve.”

Even though Section 702 is not up for renewal until the end of next year, the House Judiciary Committee has already begun its review of the law, with an eye toward avoiding a last-minute showdown. 

Civil libertarians have hoped to use the run-up to the 2017 deadline to create momentum pushing for reform of the law, following their relative success in killing off a separate NSA program last summer.