Senator Ron Wyden of Oregon, well-known for his strong advocacy for privacy rights and a member of the Senate Intelligence Committee since shortly after the events of September 11, has labeled the recent provision as “one of the most alarming and significant expansions of government surveillance authority in history.”
According to the ACLU and other groups involved in the campaign, declassifying the new categories of businesses eligible to be classified as Electronic Communication Service Providers (ECSPs) is a critical measure for clarifying a vague shift in federal surveillance practices. “In the absence of such fundamental transparency, the law may continue to facilitate extensive NSA surveillance on domestic ground, posing a risk to the civil liberties of all Americans,” the organizations expressed in their recent letter to Gabbard.
The Office of the Director of National Intelligence has not responded to several requests for comment.
Alongside their demand for Gabbard to declassify information about the extent of the 702 program’s reach, the ACLU and other advocates are also urging Gabbard to make public data regarding the number of Americans who have been “incidentally” wiretapped by their government. Intelligence officials have previously asserted that determining this figure would be “impossible,” as analyzing the wiretaps would require the government to access them inappropriately, thus infringing on those Americans’ rights.
Nevertheless, privacy advocates refer to a study released in 2022 by Princeton University, which presents a methodology capable of resolving this problem. “The intelligence community’s unwillingness to provide the requested estimate undermines public trust and diminishes the credibility of Section 702,” the organizations assert.
Reports indicate that Gabbard has softened her earlier opposition to government surveillance while pursuing her new position as the head of the national intelligence framework. For example, during the 116th Congress, Gabbard introduced legislation aimed at completely abolishing the Section 702 program, which is deemed the “crown jewel” of U.S. intelligence gathering and vital for monitoring foreign threats, including terrorist groups and cybersecurity risks—demonstrating a more radical stance than those typically held by lawmakers and civil society organizations advocating for surveillance reform.
While she retracted from this position in January, Gabbard’s newly articulated views align her more closely with established reform advocates. In response to inquiries from the U.S. Senate prior to her confirmation, Gabbard expressed support for requiring the Federal Bureau of Investigation to obtain warrants before accessing the communications of Americans inadvertently caught in the 702 program.
Many national security proponents, such as former House Speaker Nancy Pelosi and former House Intelligence Committee Chairman Mike Turner, have historically been against this warrant requirement, a stance that has typically been echoed by all FBI directors. “This warrant requirement enhances the [intelligence community] by ensuring that queries are focused and warranted,” Gabbard stated in her response to Senate inquiries in late January.
Although the Section 702 program was reauthorized last spring, it was only granted a two-year extension. Discussions regarding its potential reauthorization are anticipated to resume as early as this summer.
Sean Vitka, executive director of Demand Progress, one of the lobbying organizations involved, emphasizes Gabbard’s long-standing support for civil liberties and describes her recent comments on covert surveillance initiatives as “promising.” “Congress must understand, and the public has a right to know, how Section 702 is being utilized,” Vitka asserts, “and how many Americans are affected by that surveillance.”
“Section 702 has frequently been employed for warrantless surveillance of Americans, including journalists, activists, and even members of Congress,” adds Kia Hamadanchy, senior policy counsel for the ACLU. “Declassifying vital information and providing overdue, fundamental data on the number of U.S. persons whose communications are collected under this surveillance are crucial steps toward increasing transparency as the next reauthorization discussion approaches.”
