An “unknown and potentially large scope” of Americans are caught up in the government’s overseas electronic surveillance programs, according to a federal privacy watchdog report slated to be adopted Wednesday.
The Privacy and Civil Liberties Oversight Board, which began operating just last year, said the intelligence the government collects under Section 702 of the Foreign Intelligence Surveillance Act is valuable in the fight against terrorism and, at its root, the government uses it properly to go after foreign nationals outside the U.S.
But at the edges, the program is scooping up data about Americans, the board said in a nearly 200-page report that recommended some changes to get a handle on how often the program strays across constitutional boundaries.
“Overall, the board finds that the protections contained in the Section 702 minimization procedures are reasonably designed and implemented to ward against the exploitation of information acquired under the program for illegitimate purposes,” the panel concluded. “The board has seen no trace of any such illegitimate activity associated with the program, or any attempt to intentionally circumvent legal limits. But the applicable rules potentially allow a great deal of private information about U.S. persons to be acquired by the government.”
The report was released in preliminary form Tuesday night. The board is scheduled to meet Wednesday morning to adopt the report.
The data collected under FISA Section 702 is different than the phone snooping program that has spurred so much debate over the last year, since its existence was revealed by former government contractor Edward Snowden. That program, which the government claims is justified under the Patriot Act, collected metadata from most Americans’ phone calls — though the government said it only searched the data when it had reason to believe a phone number was associated with terrorism.
But experts said that bulk collection program did not show a track record of catching would-be terrorists or heading off potential plots, even as it crossed several privacy lines.
The Section 702 programs are different. One of them, known as PRISM, involves asking a communications company such as an internet service provider for specific information such as data from an email address.
The other program, known as “upstream” collection, involves grabbing the data straight off the “backbone” over which telephone and internet communications are transmitted. Upstream collection can include telephone calls, where PRISM does not. The upstream collection can snag information from or about Americans.
Sen. Ron Wyden, Oregon Democrat and a key lawmaker who fought to rein in the phone metadata program even before it was revealed by Mr. Snowden, said the Section 702 programs can amount to warrantless “backdoor searches” of Americans’ communications.
This week, the director of national intelligence detailed some Section 702 search data to Mr. Wyden — including the fact that the FBI can’t say how many queries it runs on the data, though the number is “substantial.”
Mr. Wyden said that should be frightening to those concerned about privacy rights.
“When the FBI says it conducts a substantial number of searches and it has no idea of what the number is, it shows how flawed this system is and the consequences of inadequate oversight,” he said.
“This huge gap in oversight is a problem now, and will only grow as global communications systems become more interconnected,” Mr. Wyden said. “The findings transmitted to me raise questions about whether the FBI is exercising any internal controls over the use of backdoor searches including who and how many government employees can access the personal data of individual Americans. I intend to follow this up until it is fixed.”
Last month the House voted overwhelmingly to require a warrant for Section 702 data collection searches involving Americans.