Sen. Ron Wyden, D-Ore., released the following statement in response to a letter provided by the Office of Director of National Intelligence, which details the number of backdoor searches performed by U.S. intelligence agencies. As this response makes clear, intelligence agencies are searching through communications collected under Section 702 of the Foreign Intelligence Surveillance Act – an authority that Congress intended to be used to target foreigners – and are deliberately conducting warrantless searches for the communications of individual Americans.
“The Office of the Director of National Intelligence has now responded to my longstanding question regarding warrantless searches for Americans’ emails and other communications, and I appreciate the candid and straightforward nature of their reply.
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. This huge gap in oversight is a problem now, and will only grow as global communications systems become more interconnected. 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.
While intelligence officials have often argued that it is impossible to estimate how many Americans’ communications are getting swept up by the government under Section 702, the Foreign Intelligence Surveillance Court has noted that the NSA acquires more than two hundred and fifty million Internet communications every year using Section 702, so even if US communications make up a small fraction of that total, the number of U.S. communications being collected is potentially quite large. The scale of this activity seems to be something that could be conducted pursuant to probable cause warrants, particularly given the exceptions that are included in the bipartisan bicameral legislation that I and others have proposed.
I and other reformers in Congress have argued that intelligence agencies should absolutely be permitted to search for communications pertaining to counterterrorism and other foreign threats, but if intelligence officials are deliberately searching for and reading the communications of specific Americans, the Constitution requires a warrant. The bipartisan, bicameral legislation that I and other reformers have supported would permit the government to conduct these searches pursuant to a probable cause warrant or emergency authorization, and it would include an exception for searches for individuals who are believed to be in danger.
Last week the House of Representatives voted 293-123 to require a warrant for these searches, and I’ll be urging my colleagues in the Senate to follow suit. Reformers believe that it is possible to protect Americans’ security and American liberty at the same time, and the American public expects nothing less.”