Would you believe the Inspector General from the Office of the Director of National Intelligence said it would violate the privacy of Americans for the IG office to tell us how many people in the United States had their privacy violated via the NSA warrantless wiretap powers which were granted under the FISA Amendment Act of 2008?

The annual Foreign Intelligence Surveillance Act (FISA) report [PDF] showed that electronic surveillance increased yet again in 2011. Applications for what the government calls "business records," but also includes the production of tangible things, swelled from 96 in 2010 to 205 in 2011. The EFF said those business records are one in the same as the government using the notorious Section 215 of the Patriot Act. The FISA Amendments Act of 2008 (FAA) is up for a five-year extension, but Senator Ron Wyden said he'd block FAA renewal until Congress received an answer from the NSA about how many "people in the United States have their communications reviewed by the government" under FAA powers.

As members of the Senate's Intelligence Oversight Committee, Senators Ron Wyden and Marc Udall had previously asked the NSA for an estimate of how many Americans have been spied upon under the FISA Amendment Act. Last year the Office of the Director of National Intelligence replied [PDF] that it was "not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA." This year, Senators Ron Wyden and Marc Udall wrote, "We are particularly concerned about a loophole in the law that could allow the government to effectively conduct warrantless searches for Americans' communications."

Sen. Wyden explained, "Before Congress votes to renew these authorities it is important to understand how they are working in practice. In particular, it is important for Congress to better understand how many people inside the United States have had their communications collected or reviewed under the authorities granted by the FISA Amendments Act." Wyden added:

I am concerned, of course, that no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act. Then it is possible that this number could be quite large. Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.

In reply to Senators Wyden and Udall, the NSA Inspector General said [PDF] said we can't tell you because that would "violate the privacy of U.S. persons." The reply letter from Charles McCullough, the Inspector General of the Office of the Director of National Intelligence, was acquired by Danger Room. McCullough wrote that the NSA inspector general "and NSA leadership agreed that an IG review of the sort suggested would further violate the privacy of U.S. persons." Furthermore, "obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA's mission."

Previously, the ACLU reported that a response to its Freedom of Information Act lawsuit about the FAA, "the government revealed that every six-month review of the act had identified 'compliance incidents,' suggesting either an inability or an unwillingness to properly safeguard Americans' privacy rights. The government has withheld the details of those 'compliance incidents,' however, including statistics relating to abuses of the act." The Supreme Court agreed to hear the ACLU's challenge to the constitutionality of the law, but the government claimed "the plaintiffs should not be able to sue without first showing that they have, in fact, been monitored under the program - information that the government refuses to provide."

EPIC Director Marc Rotenberg testified before the House Judiciary Subcommittee on FAA, asking for "increased transparency and new public reporting of the government's surveillance activities." The ACLU also asked Congress to fix FISA, but at every turn the government continues to block checks and balances that could keep this surveillance on steroid behavior under control. And now even Senators Wyden and Udall received the bizarre statement about violating American's privacy to give an estimate on how many of us have our privacy invaded thanks to FAA.

Today, the House Judiciary Committee is supposed to address the "FISA Amendments Act Reauthorization Act of 2012." If, or sadly more like when, FAA is reauthorized, it will extend the provision through 2017.