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Officials: Controversial Surveillance Law Helped Stop Smartphone Attack

Sen. Lindsey Graham, R-S.C.

Sen. Lindsey Graham, R-S.C. // Pablo Martinez Monsivais/AP

A controversial surveillance authority that could expire at the end of this year protected American smartphone owners from a malicious application sponsored by a foreign government, an intelligence official told lawmakers Tuesday.

The story about the malicious app, which was ultimately removed from app stores, joins a small cadre of partially declassified stories intelligence officials have shared to bolster the case for an unrestricted renewal of Section 702 of the Foreign Intelligence Surveillance Act.

Most of the other stories have dealt with terrorism, such as that of Najibullah Zazi who pleaded guilty in 2010 to planning an attack on the New York City subway system.

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Section 702 has been a point of contention since its details were revealed by National Security Agency leaker Edward Snowden in 2013. The authority targets foreigners outside the U.S. but can scoop up the emails and text messages of Americans who communicate with those targets or, in some cases, simply mention them in digital conversations with nontargeted foreigners abroad.

Intelligence officials want Congress to renew the authority as is or with few changes before it expires at the end of the year, but privacy advocates in Congress have concerns about the law’s ability to collect information about American citizens among other worries.

Sen. Ron Wyden, D-Ore., has been pressing the intelligence community for several years to reveal the number of Americans whose communications have been incidentally surveilled under the authority.

The intelligence community will not produce that number, acting General Counsel for the Director of National Intelligence Bradley Brooker told the Senate Judiciary Committee on Tuesday.

Producing the number would take too much time and effort and potentially violate Americans’ privacy in the process, Brooker said, echoing comments DNI Dan Coats made earlier this month. The resulting number might also not be very accurate, he said.

Elizabeth Goitein, a national security researcher and former Senate Judiciary Committee staffer, criticized that conclusion during a separate panel.

While it would be difficult to get a wholly accurate count of Americans swept up in 702 surveillance, intelligence officials could produce a rough estimate by simply looking at evidence such as phone number country codes and computer IP addresses, said Goeiten, who co-directs the liberty and national security program at New York University’s Brennan Center for Justice.

Intelligence leaders appeared on the verge of producing the number at the close of the Obama administration, but backed off after President Donald Trump and his team took office.

The panel of intelligence leaders also urged Judiciary Committee members not to restrict so-called “about collection,” in which intelligence agencies collect information from people who are not intelligence targets but mention those targets in emails and text messages.

NSA announced it had halted collecting such emails and text messages in April because it determined it lacked the technical expertise to ensure that collection complied with current laws. That doesn’t mean the program should be restricted entirely, though, said Paul Morris, a deputy general counsel at NSA.

“The agency has a lot of smart engineers and we think that, given enough time, we might be able to come up with a technical solution that addresses the court’s concern,” Morris said.  

Tuesday’s hearing also touched on recent congressional concerns about the “unmasking” of executive and legislative branch officials who are not intelligence targets themselves but were in contact with foreign intelligence targets.

The names of such Americans who aren’t suspected of wrongdoing are typically redacted in intelligence products but can be unmasked at the request of political officials. Congressional Republicans have expressed concern that former National Security Adviser Michael Flynn’s identity was unmasked in a conversation with Russian Ambassador Sergey Kislyak and then leaked to the press.

Sen. Lindsey Graham, R-S.C., pressed officials on a request about whether his communications with foreign officials have been collected—a request intelligence agencies have yet to comply with.

“It was, like, months ago, so, like, am I ever going to get it in my lifetime?” he asked.

The intelligence community is working on a response, officials said. 

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