Senator Ron Wyden of Oregon, a renowned privacy hawk who has served on the Senate intelligence committee since just after 9/11, has referred to the new provision as “one of the most dramatic and terrifying expansions of government surveillance authority in history.”
Declassifying the new types of businesses that can actually be considered an ECSP is an essential step in bringing about clarity to an otherwise nebulous change in federal surveillance practices, according to the ACLU and the other organizations joined in its effort. “Without such basic transparency, the law will likely continue to permit sweeping NSA surveillance on domestic soil that threatens the civil liberties of all Americans,” the groups wrote in their letter to Gabbard this week.
The Office of the Director of National Intelligence did not respond to multiple requests for comment.
In addition to urging Gabbard to declassify details about the reach of the 702 program, the ACLU and others are currently pressing Gabbard to publish information to quantify just how many Americans have been “incidentally” wiretapped by their own government. Intelligence officials have long claimed that doing so would be “impossible,” as any analysis of the wiretaps would involve the government accessing them unjustifiably, effectively violating those Americans’ rights.
The privacy groups, however, point to research published in 2022 out of Princeton University, which details a methodology that could effectively solve that issue. “The intelligence community’s refusal to produce the requested estimate undermines trust and weakens the legitimacy of Section 702,” the groups say.
Gabbard is widely reported to have softened her stance against government spying while working to secure her new position as director of the nation’s intelligence apparatus. During the 116th Congress, for instance, Gabbard introduced legislation that sought to completely dismantle the Section 702 program, which is considered the “crown jewel” or US intelligence collection and crucial to keeping tabs on foreign threats abroad, including terrorist organizations and cybersecurity threats—exhibiting a stance far more extreme than those traditionally held by lawmakers and civil society organizations who’ve long campaigned for surveillance reform.
While begging off from this position in January, Gabbard’s newly espoused views have, in fact, brought her more closely in line with mainstream reformers. In response to questions from the US Senate ahead of her confirmation, for example, Gabbard backed the idea of requiring the Federal Bureau of Investigation to obtain warrants before accessing the communications of Americans swept up by the 702 program.
Slews of national security hawks from former House speaker Nancy Pelosi to former House intelligence committee chairman Mike Turner have long opposed this warrant requirement, as traditionally have all directors of the FBI. “This warrant requirement strengthens the [intelligence community] by ensuring queries are targeted and justified,” Gabbard wrote in response to Senate questions in late January.
The Section 702 program was reauthorized last spring, but only for an additional two years. Early discussions about reauthorizing the program once more are expected to kick off again as early as this summer.
Sean Vitka, executive director of Demand Progress, one of the organizations involved in the lobbying effort, notes that Gabbard has a long history of supporting civil liberties, and refers to her recent statements about secret surveillance programs “encouraging.” “Congress needs to know, and the public deserves to know, what Section 702 is being used for,” Vitka says, “and how many Americans are swept up in that surveillance.”
“Section 702 has been repeatedly used to conduct warrantless surveillance on Americans, including journalists, activists, and even members of Congress,” adds Kia Hamadanchy, senior policy counsel for the ACLU. “Declassifying critical information, as well as providing long-overdue basic data about the number of US persons whose communications are collected under this surveillance are essential steps to increasing transparency as the next reauthorization debate approaches.”