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CIA collecting bulk data on Americans without oversight, senators say

CIA collecting bulk data on Americans without oversight, senators say

SAUL LOEB/AFP/Getty Images

Two US senators have asked the Central Intelligence Agency to release the details of a secret bulk data collection program that has apparently ensnared Americans.

Sens. Ron Wyden (D-Ore.) and Martin Heinrich (D-N.M.) wrote the director of national intelligence and the CIA (PDF), asking them to declassify a review of a CIA program known as “Deep Dive II,” the details of which were redacted from their letter. The letter was written in April 2021 but was classified until yesterday.

The secret CIA program is operated under the authority of Executive Order 12333, which former President Ronald Reagan issued in 1981. It has been used to justify bulk data collection of people in the US, including phone calls, SMS messages, and, until recently, email metadata. That practice was limited by a 2015 reauthorization of the Foreign Intelligence Surveillance Act, known as FISA, which banned the bulk collection of phone and SMS metadata by the FBI.

“FISA gets all the attention because of the periodic congressional reauthorizations and the release of Department of Justice, Office of the Director of National Intelligence, and FISA Court documents,” Wyden and Heinrich said in a statement. “But what these documents demonstrate is that many of the same concerns that Americans have about their privacy and civil liberties also apply to how the CIA collects and handles information under executive order and outside the FISA law. In particular, these documents reveal serious problems associated with warrantless backdoor searches of Americans, the same issue that has generated bipartisan concern in the FISA context.”

The CIA’s bulk data collection program, the senators wrote, has been “secretly conducted” and is done “outside the statutory framework that Congress and the public believe govern this collection, and without any of the judicial, congressional, or even executive branch oversight that comes with FISA collection.

“This basic fact has been kept from the public and from Congress. Until the [Privacy and Civil Liberties Oversight Board] report was delivered last month, the nature and full extent of the CIA’s collection was withheld even from the Senate Select Committee on Intelligence.”

In a statement issued to the Associated Press, the CIA did not deny that it was collecting data on Americans or clarify its legal justification. “CIA recognizes and takes very seriously our obligation to respect the privacy and civil liberties of US persons in the conduct of our vital national security mission,” Kristi Scott, the agency’s privacy and civil liberties officer, said in the statement. “CIA is committed to transparency consistent with our obligation to protect intelligence sources and methods.”

Wyden and Heinrich are asking the CIA to disclose what type of relationship it has with its sources and what legal justification it thinks it has to conduct such an operation. They also want to know what types of records were collected, how they’re stored, who has access to them, and how many Americans had their records collected and retained.

“Each of these matters has been the subject of extensive declassifications with regards to NSA’s and FBI’s FISA collection; there is no reason why CIA’s activities cannot be equally transparent,” they wrote.

The government only disclosed in 2017 the attorney general’s guidelines that the CIA is supposed to follow when conducting a program under Executive Order 12333. 

In a set of recommendations that were declassified yesterday and made by the civil liberties oversight board, the CIA admits that “it is still in the process of implementing” those guidelines. Currently, one of the “checks” against abuse of that authorization is a pop-up box that reminds analysts that a tool is only to be used to collect foreign intelligence and is not to be used on US persons. It does not require them to “memorialize the justification” so it could be reviewed during an audit.

Wyden and Heinrich say that the CIA should exhibit greater transparency or else risk undermining the long-term credibility of the entire intelligence community. “This declassification is urgent,” the senators wrote. “It is critical that Congress not legislate without awareness of a [redacted] CIA program.”

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