Ever since Edward Snowden pulled back the curtain on NSA spying techniques on American citizens a few years ago, privacy in the digital age has been a pressing concern. Now, this conversation is about to get significantly more serious in nature. Earlier in April, a United States congressional committee asked the Donald Trump administration to officially disclose a reasonable estimate of the total number of Americans who had digital communications “incidentally collected” under foreign surveillance programs.
Domestic Surveillance: The Current Situation
In this context, it is important to note that “incidental collection” means that an American was not the target of an investigation, but their communications were intercepted anyway.
If a particular foreign agent were under close supervision by an organization like the FBI, for example, all of their communications would be monitored –regardless of who they were actually talking to. If they pick up the phone and contact an American citizen – someone who should not be monitored under the constitution – a record of that communication would still take place.
This discussion is happening at a particularly important time, as certain portions of the Foreign Intelligence Surveillance Act are due to expire by the end of 2017. As Congress contemplates whether to reauthorize those parts of the act, they have indicated that a reasonable estimate of incidental collection will be “crucial” when it comes time to make a decision.
The request is notable for its bipartisan support – something increasingly rare in the modern era. The request was formerly filed by both a Republican and a Democrat from the House Judiciary Committee – Chairman Bob Goodlatte and John Conyers, respectively. The letter was addressed to Dan Coats, the current Director of National Intelligence.
The other major reason this is such a notable request has to do with the currently unsubstantiated claims that the Obama White House improperly used surveillance techniques to spy on the Trump Administration, both after the November election and during the weeks leading up to it. Again – to date, there has been no evidence to back up the accuracy of those claims, but it’s hard to argue that the situation is entirely impossible considering that certain portions of the act (also commonly referred to as FISA) seem to allow for it.
<h2<FISA Section 702
Much of the controversy surrounding this topic stems from a very particular part of FISA, dubbed Section 702. Section 702 legally allows the collection of Internet-based communications from foreigners that are currently believed to be living overseas. If you’re a person of interest in a FISA-related case and you send a message on your iPhone, there’s a good chance that someone from the FBI or the CIA may be reading it in the name of counter-terrorism. Lawmakers, however, argue that things might not stop there.
Some experts believe that there could be as many as several million Americans who have had digital communications incidentally collected under FISA and similar surveillance situations. Depending on the context, this could expose them to warrantless searches by federal investigators and more.
Digital Privacy in the United States
Even on a surface level, the conversation of surveillance in the United States is a complicated topic. How much of our freedoms and our privacy are we willing to give up in order to aid counter-terrorism efforts across the globe? The answer to that question is not an easy one as it will obviously vary from person to person.
At the very least, some type of accurate estimate as to how many United States citizens have had their data incidentally collected will form the basis of further discussion before Section 702 of FISA expires on December 31, 2017. As the blooming scandal involving the Trump campaign and its ties to Russia continues to unfold, this will also likely play a part in precisely what happens to our domestic surveillance efforts as a country.