Surveillance & Privacy

"Beyond Snowden" and Transparency on Section 702

Alex Joel
Friday, September 8, 2017, 11:00 AM

This piece is part of a series on Tim Edgar's new book, "Beyond Snowden."

Published by The Lawfare Institute
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This piece is part of a series on Tim Edgar's new book, "Beyond Snowden."

I am the Civil Liberties Protection Officer for the Office of the Director of National Intelligence (ODNI), a job I’ve held since ODNI stood up in 2005. In that capacity, I lead the Office of Civil Liberties, Privacy, and Transparency. I had the distinct pleasure of working with Tim Edgar for three years when he served as the Deputy for Civil Liberties in my office.

Because I’m still at the ODNI, I need to make clear that the statements I make here are my own, and do not necessarily reflect the official position of the ODNI or of the United States. And because I refer to a book in this article, please note that this article should not be construed as an endorsement.

Tim joined us during the early years of the ODNI, and provides an account of that fascinating time in his book, “Beyond Snowden: Privacy, Surveillance, and the Struggle to Reform the NSA.” He also shares his insights on surveillance, privacy, and transparency in light of more recent events.

He describes the dedication of intelligence professionals to implement the rigorous and complex legal requirements and privacy safeguards that apply to surveillance activities. At the same time, he points out areas where he feels this framework could be changed.

One area that has experienced major change already is transparency. Tim discusses the importance of enhancing transparency for the Intelligence Community, noting how difficult this task has proven to be. The IC depends, after all, on maintaining the secrecy of its sources and methods so that it can obtain the secrets of our adversaries. A fully transparent intelligence service would be a fully ineffective one. That said, Tim highlights the progress we’ve made in increasing transparency, characterizing it as a “genuine and lasting change in the culture of the Intelligence Community.”

I could not agree more. As Tim notes in his book, transparency has dramatically increased in recent years. The IC’s commitment to transparency is reflected in measures both large and small. For example, the IC has released large volumes of information on the rules and oversight governing surveillance, posted on IC on the Record. In 2015, we issued the “Principles of Intelligence Transparency for the IC,” calling on the IC to promote public understanding of the IC’s mission, laws, compliance, and oversight. On a smaller scale, the ODNI added “Transparency” to the name of my office to better reflect our responsibilities and to highlight the key role transparency plays in earning and retaining public trust.

I will always be grateful for Tim’s strong encouragement to engage directly with the advocacy community. Our early engagements were challenging, especially since we had yet to release the information needed to answer key questions. We are now much better able to address substantive issues, and have included in our implementation plans the ongoing need for engagements with civil society.

Each year, we prepare and release reports with key statistics regarding the use of certain national security authorities. The latest report compiles the statistics released in prior reports so that relevant data is more readily available.

The reports include data that can help the public assess the impact use of these authorities has had on U.S. persons. As Tim explains, to target surveillance against a U.S. person anywhere in the world, an individualized court order must be obtained showing, among other things, probable cause to believe that the U.S. person is an agent of a foreign power. In 2016, there were 336 U.S. persons who were the targets of such orders.

These annual statistical transparency reports are particularly relevant as Congress debates reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA). The IC may not use Section 702 to target a U.S. person anywhere; nor may the IC target anyone in the United States. As noted above, targeting a U.S. person requires a court order, based on probable cause, under different provisions of FISA.

Under Section 702, the IC may only target a non-U.S. person reasonably believed to be outside the United States who will likely possess, communicate, or receive foreign intelligence information. Section 702 targets must be identified in accordance with court-approved targeting procedures, and the collected information must be handled in accordance with court-approved minimization procedures. The IC’s adherence to these rules is subject to multiple layers of internal and external oversight.

In 2016, there were 106,469 targets under Section 702. It is possible that some non-U.S. person targets are communicating with U.S. persons. We refer to those as “incidentally collected” communications.

NSA and CIA may only query information collected under Section 702 for foreign intelligence, while the FBI may in addition query the information for evidence of a crime. The statistical transparency report shows that in 2016, NSA and CIA queried the contents of Section 702 communications with 5,288 search terms concerning known U.S. persons and that 3,914 NSA Section 702 reports contained U.S. person identities.

FBI receives a small subset of the Section 702 collection and reported that in 2016, there was one instance in which Section 702 information concerning a U.S. person was received and reviewed by an FBI analyst in response to a query designed to return evidence of a crime unrelated to foreign intelligence information.

Though we have tried to make the annual statistical transparency report easier to understand with each iteration, the complexity of these topics makes this a very challenging task across the board. Our goal remains to find ways to better convey complex information so that it is more useful to those who are not students of national security law. We recognize there is more work to do.

Tim obviously shares this overall goal. Efforts like his demonstrate the transparency progress that has been made and make me optimistic that we can continue to help enhance public understanding of how the IC implements these key authorities.

Alex Joel is a scholar-in-residence and adjunct professor with the Technology, Law & Security Program at the American University Washington College of Law. He previously served as the Civil Liberties Protection Officer for the Office of the Director of National Intelligence.

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