October 15, 2024–Due Process Institute and other civil liberties organizations wrote to Director Haines and General Haugh to demand that the NSA supplies a public estimate of the number of U. S. persons’ communications that are “incidentally” collected as part of NSA’s surveillance under Section 702 of the FISA Amendments Act. This information has been requested repeatedly by legislators since at least 2011, and by civil society organizations since at least 2015.
An estimate of the number of U.S. persons’ communications obtained under Section 702 is vital to correct such misinformation, and to convey to Congress and to people across America the truth of the matter—namely, that there is substantial warrantless “incidental” collection of U.S. person communications under this authority. This estimate must be provided before the congressional debate over the next reauthorization of Section 702. The authority is scheduled to expire in April 2026, and the debate will likely begin well in advance of that date—perhaps as early as next spring.
ODNI and NSA cannot expect that public trust to be unconditional. If ODNI and NSA continue to renege on pledges to members of Congress, and to withhold information that lawmakers, civil society, academia and the press have persistently sought over the course of thirteen years, that public trust will be fatally undermined. It is time to follow through, and to convey a public commitment by a date certain in early 2025 to provide to the public and to Congress the estimate in question.