- The Washington Times - Wednesday, November 13, 2013

One of the nation’s top intelligence officials defended the National Security Agency’s online snooping at a Capitol Hill hearing Wednesday, telling lawmakers that more transparency is not needed — and additional privacy checks would prove self-defeating.

Robert Litt, general counsel for the director of national intelligence, warned that sifting through the massive reams of digital communications swept up by the NSA to determine which were sent by Americans and which were not would make any privacy violations even more invasive.

“We believe that the reporting we’ve already agreed to provides the right balance between transparency and national security,” he told the Senate Judiciary subcommittee on privacy, technology and the law.

Mr. Litt testified Wednesday about a law proposed by the subcommittee’s new chairman, Sen. Al Franken, Minnesota Democrat.

His testimony made clear the nation’s top intelligence officials intend to fight any proposed reforms, despite increasing public skepticism about the value of the NSA’s suspicionless mass data gathering — the extent of which was brought to light in documents leaked by former agency IT contractor Edward Snowden.

Mr. Franken’s Surveillance Transparency Act of 2013 would require an annual report from the administration on how many U.S. citizens and legal foreign residents had their data collected under the broad NSA programs authorized by the Foreign Intelligence Surveillance Act (FISA) Court, the secret tribunal that oversees eavesdropping by U.S. spy agencies.

The bipartisan bill would also allow telephone, Internet and other communications providers to reveal if they received secret orders from the FISA Court to allow surveillance of or data-collection from their customers. The companies would be allowed to say how many such orders they received, and how many customers were affected.

The bill’s co-sponsor, Sen. Dean Heller, Nevada Republican, also testified, noting that transparency provisions are now part of all three Senate bills that seek to address the NSA’s domestic activities — even the one backed by supporters of the agency and authored by Senate Select Committee on Intelligence chairwoman, Sen. Dianne Feinstein, California Democrat.

Mr. Litt said that it would require “an extraordinary investment of resources” to count, or even estimate, the number of Americans’ communications that were swept up by the NSA’s mass collection of Internet traffic under section 702 of the FISA Amendment Act.

It is unlawful to target Americans using this authority, but their emails and other communications sometimes get “inadvertently collected,” officials acknowledge, if, for instance, they communicate with a foreign target.

But the number of such communications “simply cannot be reasonably obtained,” said Mr. Litt, noting that it is impossible to tell someone’s nationality just from an email address.

Indeed, he argued, an effort to determine whether a person was an American might “perversely require a greater invasion of that person’s privacy than would otherwise occur.”

“To find out if Joe@hotmail.com is an American, you have to go find out all about Joe,” he said.

Mr. Litt said communications providers were already allowed to publish an aggregate number of all the so-called “lawful intercept” demands they got — bundling together those from state, local and federal police alongside the ones from intelligence agencies.

Allowing companies to break out figures about which agency asked for what access would “provide our adversaries a detailed road map of which providers and which platforms to avoid in order to escape surveillance,” he said.

The problem spy chiefs will face as they square off against the proponents of reform, however, was highlighted by Mr. Franken, who has become one of Congress’ leading privacy advocates.

“The American public is naturally suspicious of executive power, and when things are done secretly, they tend to think that power is being abused,” Mr. Franken said.

Over the summer following Mr. Snowden’s leaks, administration officials claimed they had successfully foiled dozens of terror plots, solely through the NSA authorities he exposed under another law, section 215 of the USA Patriot Act.

But at a hearing last month, NSA Director Gen. Keith B. Alexander admitted that “only one or two” cases out of the 54 victories initially claimed had actually employed the huge 215 telephony metadata database, which holds information about — though not the content of — every phone call made in America.

Critics have warned that intelligence officials risk losing the public’s trust if they will not come clean about the 215 and 702 programs now that their existence has been revealed.

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