A key member of the Senate intelligence committee is pushing the Department of Justice to disclose how often U.S. intelligence agencies are conducting so-called “backdoor” searches for data on Americans contained in raw signals intelligence.

The request from Sen. Ron Wyden (D-Ore.) refers to searches that may have been conducted under the authority of Executive Order 12333. One of the sections of that order lays out a procedure through which intelligence agencies can share sensitive information with each other so that agencies can determine whether the data “is relevant to its responsibilities and can be retained by it”. There are some important caveats to that sharing, however, including that the information can only be shared under established procedures and each time it has to be approved by the attorney general.

“The purpose of the procedures is to enable IC elements to conduct their national security missions more effectively by providing them with access to unevaluated or unminimized (i.e., “raw”) signals intelligence (SIGINT) collected by the NSA, subject to appropriate privacy protections for information about U.S. persons.  This access will enable IC elements to bring their own analytic expertise to reviewing that information and to use that information in support of their own missions,” the Office of the Director of National Intelligence said in an explanation of the executive order’s effects.

“The procedures do not alter the rules that apply to the NSA’s collection, retention, or dissemination of information, other than to permit the NSA to disseminate raw SIGINT information that it has already lawfully collected under E.O. 12333 to other authorized IC recipients.”

The key part of these searches that attracted Wyden’s attention, as well as that of privacy advocates, is that they do not require a warrant. Wyden said in his letter to Acting Assistant Attorney General Dana J. Boente that he is worried about overreach and abuse with these searches, as there is no warrant required to conduct them. He also compared the power and scope of the searches to those conducted under the authority of Section 702 of the Foreign Intelligence Surveillance Act.

“I have long been concerned about warrantless ‘backdoor’ searcher for information about Americans, particularly when the searches are conducted through communications that have been collected without individual warrants and when the amount of those communications is potentially very large,” Wyden said in the letter.

“Concerns about these searches under Section 702 are also why the Intelligence Community now publishes data on the number of these searches, with the notable exception of searches conducted by the FBI.”

In the letter, Wyden asks for three pieces of information:

  1. How many times, in each of the calendar years 2011-2016, has the Attorney General provided this approval?
  2. Can the Intelligence Community conduct these searches “for the purpose of targeting a U.S. person or a person in the United States” without an individual warrant?
  3. What limitations and approval requirements would apply to searches for communications that are reasonably likely to be to, from, or about a U.S. person or a person located in the United States if the purpose of the search is not to “target” that person?

Wyden has been outspoken on issues of privacy, surveillance, and security for many years, and often has pushed the government and intelligence agencies for more transparency.

CC By license image from John Lester

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