U.S. Senator Ron Wyden, the sponsor of a recent amendment to stop the FBI from capturing Americans’ search and web browsing histories without a warrant, is now asking the nation’s top spy (acting) to disclose whether his office has accurately reported on such activities, which the law seemingly requires.
After the Edward Snowden leaks of 2013, the Office of the Director of National Intelligence (ODNI) began releasing “statistical transparency reports” about the intelligence community’s surveillance activities. The USA Freedom Act of 2015 requires the release of annual reports detailing the types of surveillance orders that were sought after by the intelligence community, including the number of surveillance orders obtained and the number of people affected by them. However, there are significant issues with this process, as the FBI is known to access information “incidentally” collected on Americans under Section 702 of FISA and not report on it. This is commonly referred to as a “backdoor search.”
The latest ODNI statistical report was released in April.
According to Wyden, there are also considerable concerns surrounding the “inadequacy” of reporting on the use of Section 215 of the Patriot Act, the authority under which the FBI obtains “business records” and other “tangible things” if deemed “relevant” to a national security investigation. (As Snowden revealed, this authority was once used by the government to collect billions of telephone call records belonging to Americans.)
Wyden says these concerns are magnified because it’s unclear how web browsing and internet searches are represented in the reports. “There have also been long-standing concerns about the inadequacy of public reporting on the use of Section 215, including whether the data released annually by the Director of National Intelligence adequately captures the extent of the government’s collection activities and its impact on Americans,” he says.
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In his letter to Richard Grenell, the acting director of national intelligence and former U.S. ambassador to Germany, Wyden notes that current law requires ODNI to disclose not only the number of people targeted under Section 215, but the number of “unique identifiers used to communicate information.” An example of a unique identifier would be an email account. But it’s unclear whether the government considers, say, a URL visited by an American citizen to also be a “unique identifier.”
This uncertainty is not good, Wyden says: “This ambiguity creates the likelihood that Congress and the American people may not be given the information to realize the scale of warrantless government surveillance of their use of the internet.”
The primary question here is how the government plans to interpret its reporting requirements when it comes to search and browsing and internet searches collected under Section 215. Does the government intend, for example, to claim a single IP address is a “unique identifier”?
Below are other questions raised by Wyden about this process:
If the target or “unique identifier” is an IP address, would the government differentiate among multiple individuals using the same IP address, such as family members and roommates using the same Wi-Fi network, or could numerous users appear as a single target or “unique identifier”?
If the government were to collect web browsing information about everyone who visited a particular website, would those visitors be considered targets or “unique identifiers” for purposes of the public reporting? Would the public reporting data capture every internet user whose access to that website was collected by the government?
If the government were to collect web browsing and internet searches associated with a single user, would the public reporting requirement capture the scope of the collection? In other words, how would the public reporting requirement distinguish between the government collecting information about a single visit to a website or a single search by one person and a month or a year of a person’s internet use?
The ODNI did not immediately respond to a request for comment.
An amendment recently introduced by Wyden and Senator Steve Daines to the USA FREEDOM Reauthorization Act would have prevented this type of collection by the intelligence community without a warrant. Unfortunately, it lost by a single vote in the Senate one week ago. Democratic leaders also eighty-sixed a similar amendment introduced in the House version of the bill by Rep. Zoe Lofgren and Rep. Warren Davidson.
The surveillance authorization bill reinstates three key FBI surveillance powers that lapsed two months ago on—no kidding—the Ides of March, including the bureau’s Section 215 authority.
However, the bill was amended by the Senate in other ways, some of which offer FBI surveillance targets a modicum of legal protection. This means the bill has to be sent back to the House where a renewed effort has sprung to shield browsing activity from warrantless surveillance.
As Gizmodo reported on Tuesday, sources close to the efforts say it may all hinge on the support (or silence) of a single powerful Democrat whose committee has jurisdiction over FISA.