Lawmakers are demanding that the director of national intelligence release an estimate of the number of Americans who have been incidentally tracked during foreign surveillance under FISA Section 702.
Americans are subject to being swept up in lawful surveillance of foreign targets, as highlighted in the recent contretemps involving President Donald Trump, his advisers and Russian nationals. Lawmakers, on a bipartisan basis, are putting more pressure on the intelligence community to disclose just how many Americans are getting caught in the net.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) submitted a letter to the director of national intelligence seeking a public estimate of the number of Americans subject to surveillance under Section 702 of the Foreign Intelligence Surveillance Act.
The letter renews a similar request made to former DNI James Clapper last year, but this request takes on more urgency as Congress will be debating the reauthorization of the 702 surveillance program, which is set to expire at the end of the year.
"Although Congress designed this authority to target non-U.S. persons located outside of the United States, it is clear that Section 702 surveillance programs can and do collect information about U.S. persons, on subjects unrelated to counterterrorism," the members stated in the letter to DNI Dan Coats. "It is imperative that we understand the size of this impact on U.S. persons as our Committee proceeds with the debate on reauthorization."
Members of the Senate Select Committee on Intelligence, particularly Sen. Ron Wyden (D-Ore.) who has long sought the number of Americans incidentally affected, pressed Coats on this during his confirmation hearing.
"I'm going to do everything I can to work with Adm. [Mike] Rogers in NSA to get you that number," Coats said at the time.
Goodlatte and Conyers stated in their letter that they want that number -- or at least an update on the process of delivering it -- by April 24.
Unlike other surveillance programs, Section 702 does not require a warrant for a target to be monitored, but it does require that any Americans who are captured in communications with a foreign target have their information "masked" to protect their privacy.
A limited number of government officials have the authority to request the unmasking of Americans, and it is only supposed to take place when there are indications the American is involved in a listed criminal activity such as terrorism, human trafficking or child pornography.
Law enforcement and intelligence officials often refer to 702 as one of the "crown jewels" of surveillance and claim it provides as much as a quarter of actionable foreign intelligence.
But 702 is facing more scrutiny as the Trump-Russia investigations continue to play out and questions remain as to whether any Americans who were swept up under 702 surveillance were improperly unmasked and leaked to the press.
Several House members threatened the heads of the FBI and National Security Agency during a congressional hearing in March that if they did not prosecute leakers that the renewal of 702 could be in jeopardy.
Devin Nunes (R-Calif.), the chairman of the House Permanent Select Committee on Intelligence, temporarily recused himself from the committee's Russia investigation as the House Ethics Committee is now probing whether he made any unauthorized disclosures of classified material.
Critics of 702 have long stated the statute does not provide adequate privacy protections for Americans and lacks transparency. They say that the current spotlight on 702 will increase the chances of reforms as Congress takes up the reauthorization debate later this year.
While the letter from Goodlatte and Conyers did not threaten to pull the plug on 702 authorities if the DNI does not provide an estimate on incidental collection of Americans, it walked right up to that line.
"We appreciate the technical and logistical challenges presented by these requests, but we remain convinced that this estimate is crucial as we contemplate reauthorization of the FISA Amendments Act," the letter stated.
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