March 4, 2025–Due Process Institute and undersigned civil society organizations, wrote to new Director of National Intelligence (DNI) Tulsi Gabbard to express interest in engaging on issues related to surveillance and civil liberties, especially on commitment to ensuring that a warrant is required before agencies subject Americans to queries of their private data acquired through Section 702 of the Foreign Intelligence Surveillance Act (FISA). As Senator Mike Lee has stated, “The Fourth Amendment protects our right to be free from unreasonable searches and seizures, including the search of our private electronic communications.”
As Congress begins early discussions about the 2026 reauthorization of Section 702, we believe it is critical that policymakers and the public have access to key factual information that will ensure the legislative debate is based on a full and accurate understanding of the program’s impact. Accordingly, we urge you to take the following initial steps to enhance public trust and oversight of government surveillance authorities:
- Declassify the Type of Service Provider at Issue in the New “Electronic Communications Service Provider” Definition: In the Reforming Intelligence and Securing America Act (RISAA), Congress modified the definition of “electronic communications service provider” (ECSP). Both the New York Times and multiple Senators during the floor debate indicated that the modification was intended to address a ruling by the Foreign Intelligence Surveillance Court (FISC) that data centers for cloud computing do not constitute ECSPs. 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. 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.
- Publish a U.S. Person Estimate for Section 702: 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. The public and lawmakers cannot meaningfully debate Section 702’s renewal without knowing its true impact on Americans’ privacy. While previous DNI officials have occasionally claimed that producing an estimate is infeasible (although ODNI’s position on this point has been inconsistent), Princeton researchers have published a paper detailing a methodology that could reliably estimate the scale of “incidental” collection of Americans’ communications. The intelligence community’s refusal to produce the requested estimate undermines trust and weakens the legitimacy of Section 702.
Finally, previous administrations have taken meaningful steps to engage with and meet with civil society organizations on surveillance and transparency issues on a regular basis, and we strongly encourage you to continue this practice. Ongoing dialogue between the intelligence community and civil society is vital to ensuring that surveillance policies reflect democratic principles and the public interest.