Some data belonging to Americans was swept up in a secret CIA mass surveillance program that operated under atypical legal authority for such an operation, according to a letter released Thursday night by two Democratic members of the Senate Intelligence Committee.
The unnamed program operates “entirely 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 otherwise would apply, according to the letter from Sens. Ron Wyden, D-Ore., and Martin Heinrich, D-N.M.
The senators said the “secret bulk collection program” was authorized under presidential Executive Order 12333 from the early 1980s, which covers some activities of U.S. intelligence agencies. Many of the intelligence community’s surveillance programs are covered under the Foreign Intelligence Surveillance Act (FISA), which involves a special court that secretly reviews requests for spying.
The information released by the senators does not say how much information about Americans was collected, or what technology was used. It also does not say when the bulk data collection occurred, whether those activities are ongoing, or whether other U.S. intelligence agencies were involved.
Federal law generally blocks the CIA from spying on domestic telecommunications by Americans, but there are cases when information about calls or internet traffic involving an overseas target can be gathered by spy agencies. The intelligence community calls that “incidental collection.”
The senators’ letter was sent April 13, 2021, to the independent Privacy and Civil Liberties Oversight Board, which was created after the 9/11 attacks to advise the government on the legality of anti-terrorism operations. PCLOB posted a heavily redacted version of its report on the CIA program Thursday night. Two new members were added to the board this week, bringing it to full strength for the first time in years.
“FISA gets all the attention because of the periodic congressional reauthorizations and the release of DOJ, ODNI and FISA Court documents,” the senators said in a news release. “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.”
The National Security Agency, with its broad capabilities in “signals intelligence,” is typically more associated with electronic surveillance. Thursday’s announcement recalls the revelation in 2013 of the NSA’s bulk collection of metadata about phone calls and text messages from U.S. numbers. Edward Snowden, a former intelligence contractor, exposed that program, which was originally authorized under Section 215 of the Patriot Act in 2001. The law was revised in 2015 and then expired in 2020.
Privacy advocates have long raised concerns about incidental collection. “These reports raise serious questions about what information of ours the CIA is vacuuming up in bulk and how the agency exploits that information to spy on Americans,” the American Civil Liberties Union tweeted Thursday night.
The CIA “recognizes and takes very seriously our obligation to respect the privacy and civil liberties of U.S. persons in the conduct of our vital national security mission, and conducts our activities, including collection activities, in compliance with U.S. law, Executive Order 12333, and our Attorney General guidelines,” a CIA official said in a statement to the Wall Street Journal.