Wyden presses spy chief on surveillance powers

Sen. Ron Wyden (D-Ore.) wants the Trump administration's top intelligence chief to clarify whether the government can use a foreign surveillance law to collect "entirely domestic" communications.

Wyden sent a letter Monday to National Intelligence Director Dan Coats following up on a question regarding Section 702 of the Foreign Intelligence Surveillance Act that Wyden posed during a June Senate Intelligence Committee hearing. The section deals with surveillance of foreign individuals, but the government has acknowledged that domestic communications can be swept up under the law if a foreign target is communicating with a U.S. citizen or someone inside the United States.

Wyden said Coats has given conflicting answers to the question and wants him to provide a public response about whether he believes the same section gives the government authority to collect communications where all parties are known to be inside the United States.

At the hearing Coats said collection of entirely domestic communications would be against the law. Subsequently, however, Coats's office released a statement saying the director was responding to the question in the context of the specific text of the law, which states that section 702 may not be used to "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."

Wyden believes that statement differs in substance from what Coats told him.

"As I noted in my previous letter, following the hearing, your office responded to inquiries from reporters by answering a different question," wrote Wyden. "I request that you respond publicly to the original question, as asked at the open hearing."

In an email to FCW, Andrew Crocker, staff attorney for the Electronic Frontier Foundation, said Wyden's statements suggest the senator sees a difference between purely domestic communications and communications where no recipient is known to be in the United States at the time of acquisition.

The suspicion is that the intelligence community is using a loophole to acquire historical communications that took place entirely in the U.S.

"So for instance, the government might acquire communications that were sent entirely
within the U.S. but where one party (the target) subsequently leaves the U.S.," said Crocker. If, at the time of acquisition, the target was outside the U.S., the DNI's initial response to Senator Wyden would be technically correct but nevertheless highly misleading."

During that same June hearing, Coats and other intelligence officials vigorously defended their use of the law, claiming an internal analysis by spy agencies revealed "no intentional violations" of the statute. He also rejected the prospect of making changes to the law, which is scheduled to sunset at the end of this year unless lawmakers reauthorize the program. Coats claimed "many successes under 702 are highly classified" and that "permanent reauthorization of the FISA Amendments Act, without further amendment, is the intelligence community's top legislative priority."

Wyden has long been a critic of U.S. surveillance activities, and last year accused James Clapper, Coats' predecessor under the Obama administration, of engaging in a "deception spree regarding mass surveillance."

Wyden's letter "certainly raises the concern that the government is using Section 702 to intentionally obtain purely domestic communications," said Crocker. "Given the secrecy around Section 702 and the government's unwillingness to provide an account of the undoubtedly large number of Americans whose communications are 'incidentally' swept up, however, it's impossible to be sure exactly what legal interpretation it might be relying on."

On July 20, Wyden sent another letter to Acting Attorney General for National Security Dana Boente asking about National Security Agency protocols that allow the Justice Department to sign off on searches for communications "for the purpose of targeting a U.S. person or a person in the United States" under certain circumstances. Wyden asked whether the government would be able to conduct these searches without a warrant and asked how many times the attorney general used this power from 2011 to 2016.

At press time, Wyden's office had not responded to follow-up questions from FCW regarding the letters and whether he has received a response.