Cybersecurity Policy Report, Privacy Groups Ask ODNI to Disclose Extent of ‘Warrantless’ Surveillance, (Mar 6, 2025)

By Tom Leithauser

The number of Americans whose communications are collected by U.S. intelligence agencies as a by-product of their surveillance of foreign threats should be made public, 20 privacy and civil liberties advocates said in a letter to Director of National Intelligence Tulsi Gabbard.

The groups noted that a key foreign surveillance law, section 702 of the Foreign Intelligence Surveillance Act (FISA), expires early next year and asked Ms. Gabbard to provide the public and lawmakers information necessary to help them assess potential changes to the law.

Section 702 empowers U.S. intelligence agencies to monitor the communications of foreigners who are overseas and considered national security threats. In practice, however, surveillance activities authorized under section 702 sometimes lead to Americans’ communications being swept up when an American communicates with a foreign intelligence target.

The “incidental” collection of Americans’ communications has long been a contentious point for privacy advocates because those domestic communications are available for access by government agencies—a practice criticized as “warrantless” surveillance.

But in past debates over section 702, intelligence officials have resisted disclosing the extent of incidental collection, the groups told Ms. Gabbard.

“For years, intelligence officials have refused to provide basic transparency about the number of U.S. persons whose communications are collected under Section 702 surveillance, despite repeated bipartisan requests from Congress,” they said.

While Ms. Gabbard’s predecessors at the Office of the Director of National Intelligence (ODNI) “have occasionally claimed that producing an estimate is infeasible (although ODNI’s position on this point has been inconsistent),” the public and lawmakers “cannot meaningfully debate Section 702’s renewal without knowing its true impact on Americans’ privacy,” they said.

“Understanding the extent to which Americans’ private communications are swept up in this surveillance program is fundamental to assessing its implications for privacy and civil liberties and developing appropriate reforms,” the groups added.

They also asked about a provision added to section 702 when Congress last reauthorized it by passing the Reforming Intelligence and Securing America Act (RISAA), which expires on April 19, 2026 (CPR, April 22, 2024).

RISAA expanded the types of electronic communication service providers (ECSPs) that could be compelled by the government to turn over users’ communications under section 702.

Privacy and civil liberties advocates expressed concern that the enlarged definition of ECSP would rope in all sorts of organizations that provide communications service in a limited context, such as libraries with desktop computers, coffee shops that offer Wi-Fi, or providers of cloud data storage.

The expanded ECSP definition—which previously had included only traditional providers of e-mail, voice, and messaging services—was justified as a response to a ruling of the Foreign Intelligence Surveillance Court (FISC).

In a redacted opinion, the FISC sided with a service provider that claimed it didn’t meet the ECSP definition and didn’t have to comply with government requests under FISA. The groups asked Ms. Gabbard to declassify the court’s opinion to provide more transparency about the case, including the type of service provider involved, which is assumed to be a cloud computing data center.

“But because that part of the FISC opinion remained (and still remains) classified, the RISAA provision was deliberately drafted in broad terms to conceal the type of provider at issue,” the groups said.

“On its face, the new definition significantly expands the National Security Agency’s (NSA) power, allowing the agency to compel nearly any U.S. business to assist in Section 702 surveillance,” they said.

Without more transparency, “the law will likely continue to permit sweeping NSA surveillance on domestic soil that threatens the civil liberties of all Americans,” they warned.

Groups signing the letter included the American Civil Liberties Union, the Center for Democracy & Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, Free Press Action, and New America's Open Technology Institute.

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