October 25, 2019
To Acting Director of National Intelligence Joseph Maguire,
In recent years we have regularly met with representatives from the Office of the Director of National Intelligence (ODNI) and various intelligence agencies with the goal of maintaining open and honest communications, and increasing transparency, even amid strong substantive disagreements regarding government surveillance. However, the disturbing revelations from the recent disclosure of FISA Court documents have undermined these goals, and we are worried that the intelligence community’s representations and conduct could impede a trust-based dialogue going forward.
The documents released on October 8 demonstrate that intelligence community officials provided misleading information regarding treatment of communications obtained pursuant to Section 702 of FISA to our community. For years, many privacy advocates have called for the FBI to disclose how often the Bureau conducts U.S. person queries of databases containing communications obtained pursuant to Section 702. In our discussions, the FBI repeatedly claimed that it is unable to designate query terms that involve US persons. The recent disclosures demonstrate this was false. As soon as required by the FISA Court, the FBI developed querying procedures that require that any “United States person query term” be labeled accordingly.[1] The October 2018 FISA Court opinion also revealed frequent use of query terms, such as social security numbers, that were clearly identifiable as US person queries.[2] At a minimum, it now seems clear that the FBI could have provided an informed estimate of the number we were requesting.
Additionally, we are disturbed that ODNI chose not to disclose the October 18 opinion for nearly a year while the government pursued its appeal of that decision. It is difficult to escape the conclusion that ODNI delayed disclosure in the hope that the appeal would be successful and therefore the disclosure would be less embarrassing, prioritizing public relations over public transparency. This conduct violates the clear intent behind the USA FREEDOM Act’s requirement to publicly release significant FISA Court opinions. Unless these opinions are released in a timely manner, the transparency goal of this provision cannot be realized. This lengthy delay is also inconsistent with ODNI’s stated commitment to transparency.[3] It is difficult to square ODNI’s claim that it “goes beyond the government’s statutory duty of providing statistics by further providing the public with detailed explanations as to how the IC uses its national security authorities” as meaningful when it was simultaneously withholding a FISA Court opinion of significant importance from the public for a lengthy period of time.[4]
We believe transparency and building trust are of paramount importance for the intelligence community’s interactions with civil society, and the public at large. In order to pursue these goals, we encourage the intelligence community to take the following steps to restore the spirit of trust and good-faith interactions:
- Commit to reporting of the number of U.S. person queries by the FBI that return communications collected via Section 702: Given the new querying and retention requirements the FBI has instituted—notably that the agency label query term that it is reasonably likely to identify a US person as a “United States person query”—there should no longer be a technical objection to reporting the number of U.S. person queries conducted by the FBI that return communications collected via Section 702. ODNI should commit to including the number, a valuable transparency practice already conducted by the NSA and CIA, in all future annual transparency reports.
- Commit to timely disclosure of FISA Court opinions: In order to restore faith that the government is following the disclosure requirements established by the USA FREEDOM Act to prevent the development of secret law, ODNI should commit to disclosure of all novel or significant FISA Court opinions as soon as possible. If, for some reason, declassification review cannot be completed within that period, ODNI should issue an interim disclosure setting forth the main holding of the opinion.
In addition to these items, we also urge you to commit to fully engaging civil society to determine what additional data related to the FBI US person queries can be released to facilitate a better public understanding of how this authority is being used. With several sections of the PATRIOT Act set to expire in less than 10 weeks, we believe strong actions are required by the intelligence community to respond to these revelations, and the breach of trust they evidence. We hope to continue a productive dialogue with the intelligence community going forward, but we believe demonstrations of candor are critical to constructive interactions in the future.
Sincerely,
American Civil Liberties Union
The Brennan Center
Center for Democracy & Technology
Council on American-Islamic Relations
Demand Progress
Electronic Frontier Foundation
Government Accountability Project
Government Information Watch
Liberty Coalition
New America’s Open Technology Institute
Project On Government Oversight
TechFreedom
CC:
Ben Huebner, Chief, ODNI Civil Liberties, Privacy, and Transparency Office
Becky Richards, Director, NSA Civil Liberties and Privacy Office
Kristi Scott, CIA Privacy and Civil Liberties Officer
Peter Winn, DOJ Acting Chief Privacy and Civil Liberties Officer
[1] See, FBI’s 2018 § 702 Querying Procedures, September 16, 2018, available at https://www.intelligence.gov/assets/documents/702%20Documents/declassified/2018_Cert_FBI_Querying_18Sep18.pdf
[2] See, United States Foreign Intelligence Surveillance Court Memorandum Opinion and Order, October 28, 2018, available at.
[3] See, “DNI Affirms Commitment to Transparency,” available at https://www.intelligence.gov/publics-daily-brief/public-s-daily-brief-articles/798-dni-affirms-commitment-to-transparency
[4] See, Statistical Transparency Report Regarding National Security Authorities Calendar Year 2018, May 1, 2019, available at https://www.dni.gov/files/CLPT/documents/2019_ASTR_for_CY2018.pdf.