By Ellen Nakashima The Washington Post
WASHINGTON — The U.S. government on Friday for the first time released data on the scope of some of its most sensitive foreign intelligence-gathering efforts, saying that it had targeted nearly 90,000 foreign persons or organizations for surveillance through U.S. companies last year.
The release of the “transparency report,” issued by the Office of the Director of National Intelligence, follows an order a year ago from President Barack Obama to declassify and make public as much information as possible about certain sensitive surveillance programs.
Some privacy advocates said the figure was not as high as they had expected, but that the report left out important data. It did not include figures on the number of U.S. persons whose phone calls or emails were collected accidentally or because they were in contact with foreign targets.
“The intelligence community is hiding the extent to which this surveillance conducted without a warrant is impacting people in the United States, who have constitutional rights,” said Gregory Nojeim, senior counsel for the Center for Democracy and Technology.
Obama’s directive came on the heels of disclosures by former NSA contractor Edward Snowden, who leaked documents about U.S. surveillance programs out of a concern that their scope had exceeded the bounds of what was lawful and proper.
Section 702 of the 2008 FISA Amendments Act permits the NSA to intercept without individualized warrants the communications of foreigners thought to be located overseas for foreign intelligence purposes.
Michael Sussmann, a former federal prosecutor who now represents tech companies in national security matters, said the disclosure of the number of foreign targets counters the notion that the Section 702 program amounts to widespread, indiscriminate collection.
“For those people who say it’s dragnet surveillance — it’s not,” Sussmann said. “These aren’t small numbers, but considering that several billion people use U.S. email services, this shows a targeted use of 702 authorities.”
Sussmann said the disclosure was a good step. “The FISA Amendments Act has been crunching along for six years now,” he said, “and this is the first time that people really see what the scope is.”
Civil liberties groups have decried 702 collection as “dragnet” surveillance and sought to challenge its constitutionality. On Tuesday, a federal judge in Portland, Oregon, ruled that the program was constitutional — the first court opinion on the issue.
Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, said that because a target can be a group, the report leaves open the possibility that many more people are affected than would seem apparent.
“A target can be an organization with hundreds of members,” she said. “And targets communicate with many people, including innocent U.S. citizens… . If each foreign target had only 10 communications with an American each year, the government would still be collecting almost a million calls and e-mails involving Americans.”
The government says it has rules to protect the privacy of Americans whose communications are picked up accidentally or because they are in contact with foreign targets.
The report noted that if a target is known to use more than one email address or phone number, the target will be counted once. At the same time, if intelligence analysts are unaware that a target is using multiple accounts, then each of those accounts would be counted separately.
Section 702 is not the only means by which the NSA gathers foreign intelligence. The report is silent, for instance, on the agency’s use of power under Executive Order 12333 to collect intelligence overseas on foreigners. That authority is broader in scope, less precise in its targeting and does not involve court oversight.
“We have no idea how many foreigners are targeted [under EO 12333], let alone how many of their calls and emails with Americans are swept up,” Goitein said.
The report, which will be issued annually, does not include data on a program under which the NSA gathers all call detail records from U.S. phone companies for counterterrorism purposes.
Under the telephone “metadata” program, the NSA last year used 428 “selectors,” or phone numbers or other device identifiers, to query the data. Each selector under the rules must be linked to a suspected terrorist or terrorist group. That compares with 298 such selectors used in 2012, officials said.
Largely because of the outcry over the program’s scale, Obama in January asked that the Congress work with the administration to find a way to end it in its current form. Legislation to do so is pending.