NSA Transparency Hurts Americans’ Privacy, Feds Say With Straight Face

Robert Litt (left), general counsel for the Office of the Director of National Intelligence, and Brad Wiegmann, deputy assistant attorney general, testify to the Senate Judiciary Committee on Privacy, Technology and the Law. Photo: Win McNamee/Getty Images

Adding limited public accountability to the NSA’s vast electronic spying programs would actually harm the privacy of Americans, Obama administration officials told a Senate hearing today.

A subcommittee of the Senate Judiciary Committee this morning debated legislation that would force the government to release statistics on how many Americans have had their data scooped into various spy programs exposed by NSA whistleblower Edward Snowden.

The legislation, proposed by Sen. Al Franken (D-Minnesota), requires annual disclosure of the number of Americans whose information was collected, even if they were not the direct targets of the surveillance. The Surveillance Transparency Act would also allow internet companies like Google, Apple, Facebook, Microsoft and others to divulge the number of their users targeted under the programs.

The measure comes amid fierce debate over two other legislative proposals: one to legally strengthen the NSA’s snooping authority, and the other to dramatically reduce it.

Robert Litt, the general counsel for the Office of the Director of National Intelligence, and Bradford Wiegmann, deputy assistant attorney general, told the Committee on Privacy, Technology and the Law today that it would have a “privacy diminishing effect” if intelligence officials were forced to review every piece of data vacuumed up under its internet and phone surveillance programs.

“Attempting to identify the numbers of persons or U.S. persons whose communications or information may be incidentally collected would, in practice, have a privacy-diminishing effect directly contrary to the aims of this bill,” they testified in a joint, written statement.

“Attempting to make this determination would require the intelligence community to research and review personally identifying information solely for the purpose of complying with the reporting requirements, even if the information has not been determined to contain foreign intelligence,” they argued. “Such an effort would conflict with our efforts to protect privacy.”

Litt, while addressing the panel, added that such a requirement “would perversely” undermine privacy.

Kevin Bankston, a staff attorney with the Center for Democracy and Technology, told the Senate panel that the administration’s position “doesn’t make sense to me.”

“The privacy has already been violated,” he said.

Among other things, Franken’s measure requires the government to disclose annually the number of Americans whose phone metadata has been acquired by the NSA.

Snowden revealed in June that the secretive Foreign Intelligence Surveillance Court has been ordering phone companies to hand over a wealth of information to the NSA on every call made to, from and within the United States. The metadata includes the phone numbers of both parties involved in all calls, the international mobile subscriber identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls. The content of the calls is not collected.

The government said in court documents that it queried the database in 2012 using “300 unique identifiers” searching for terrorist activity under a standard of “reasonable, articulable suspicion.”

Franken’s measure also requires the same type of disclosure about the government’s so-called PRISM program, in which the authorities obtain customer data from internet companies. The data — authorized to be collected by secret orders from the Foreign Intelligence Surveillance Court — includes audio, video, photos, emails and documents, as well as connection logs.

“There is no question the American people need more information about these types of programs,” Franken said.

Franken’s package also would allow tech companies to divulge the number of secret court orders they received and complied with, and the number of users whose information was produced. The companies, who have been lobbying for this right, are legally gagged from disclosing this information. They say lifting the veil of secrecy could show their customers that they have not opened a data spigot to the NSA.

“I think we need some reform to allow the user to know that the intelligence community and the collection of data is rule bound,” Richard Salgado, a Google lawyer, testified to the committee.

Moments before, he said the legislation was “essential to make sure the users have confidence in their ability to place their data with us.”

Litt countered, saying the companies should remain gagged.

“The more detail we provide out there, the more easy it becomes for our adversaries to talk, and where not to talk,” he said.

The hearing came two weeks after the Senate Intelligence Committee sent to the full Senate a measure that would give congressional blessing to the NSA’s bulk collection of domestic telephone metadata, and bolster the legal underpinnings of the controversial snooping program. A Senate vote on the pro-spying bill by Sen. Dianne Feinstein (D-California) has not been set.

The Feinstein proposal sets the stage for a major legislative battle with a competing measure – sponsored by Rep. Jim Sensenbrenner (R-Wisconsin) and Sen. Patrick Leahy (D-Vermont) — which prohibits the phone metadata collection program that the secret court first authorized in 2006. That measure, the “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act” has not had a committee hearing.