Senate Dem to Intel chief: Answer my surveillance question publicly

Sen. Ron Wyden (D-Ore.) is criticizing Director of National Intelligence Dan Coats for being unresponsive to a question.

In a letter dated Thursday, Wyden refers to an exchange he had with Coats over the controversial Section 702 of the Foreign Intelligence Surveillance Act (FISA).

Section 702 allows the intelligence community to intercept communications between noncitizens located outside of the United States without the permission of a judge. Courts have ruled that if parties in America or Americans outside the United States are accidentally swept up in the collection, their communications can be kept on file so long as steps are taken to mask their identities. 

{mosads}”At the Senate Select Committee on Intelligence’s open hearing on June 7, 2017, I asked you the following question and requested a yes or no response: ‘Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic.’ You responded: “Not to my knowledge. It would be against the law.”

Wyden appears to argue that while Coats gave him an answer to his original question, he left out some special cases in the answer, like if the collection was intentional

Wyden noted that the Office of the Director of National Intelligence sent a release to reporters after the election expounding on the answer: “Section 702 (b) (4) plainly states we ‘may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.’ The DNI interpreted Senator Wyden’s question to ask about this provision and answered accordingly.” 

“That was not my question,” wrote Wyden. “Please provide a public response to my question, as asked at the June 7, 2017, hearing.”

Wyden’s office was unable to comment on what the pertinent difference is between the question as read and as answered. But details in the press release that might restrict Coats’s answer further than Wyden had intended include the word “intentionally” and the phrases “all intended recipients are known at the time of acquisition to be located in the United States.”

Wyden may, therefore, be angling for an answer about domestic communications being collected up by accident, communications between a mixture of domestic and foreign parties, or ones where the parties are only later known to be inside the United States. 

The exchange recalls a controversial answer from a hearing Wyden elicited from the prior director of national intelligence, James Clapper, in March 2013. 

Wyden asked, “Does the [National Security Agency] collect any type of data at all on millions or hundreds of millions of Americans?”

Clapper answered, “No, sir,” later adding, “Not wittingly.” 

Less than three months later, former NSA contractor Edward Snowden began leaking documents that appeared to contradict Clapper’s statement. Clapper would later explain that part of the incongruity relied on the intelligence community’s definition of the word “collection.” In intelligence parlance, collection is different from common usage in that collection happens when data is processed. Before that, data is only acquired. 

Wyden has long been active in trying to reform government surveillance programs. 

Section 702 is currently up for renewal.