Some senators sound skeptical about the administration’s resistance. | AP Photos W.H.: Transparency may hurt security

Obama administration officials warned senators Wednesday that some of the legislative proposals to bring more official transparency to previously secret surveillance programs could undermine national security and divert crucial intelligence resources.

“The more detail we provide out there, the more we break this down by authorities and companies, the more easy it becomes for our adversaries to know where to talk and where not to talk,” Office of Director of National Intelligence general counsel Robert Litt said during a hearing of the Senate Judiciary Committee’s privacy subcommittee. “Breaking it down further, in our view, crosses the line of the appropriate balance between transparency and national security.”


With Congress divided about whether to ban practices like the wholesale collection of data on Americans’ telephone calls, many lawmakers are turning to greater transparency as a salve that can calm public fears about surveillance without disrupting programs that officials say are valuable to preventing and investigating terrorist attacks.

Wednesday’s hearing made clear that the intelligence community is resisting some of those transparency efforts, which could make it more difficult for the proposals to emerge as common-sense, consensus measures that will win the support of large numbers of Democrats and Republicans.

However, it’s not yet clear whether President Barack Obama or his top advisers would side with the intelligence agencies if faced with a public standoff between lawmakers and the national security entities.

The main focus of the hearing was a bill sponsored by Sen. Al Franken (D-Minn.) and Sen. Dean Heller (R-Nev.) that would allow internet companies to disclose how many national-security-related surveillance demands they receive and requires the NSA to estimate how often Americans are swept up in surveillance efforts targeting foreigners.

Litt said a limited effort to determine how many Americans’ communications were swept up in an NSA collection mistake took a half dozen NSA analysts six months. Trying to do so on a larger scale covering whole programs would be time consuming and perhaps impossible, he said.

Referring to published statements that NSA is the nation’s largest employer of math experts, Litt said: “Those thousand mathematicians have other things that they could be doing in protecting the nation rather than going through and counting U.S. persons.”

Litt also warned that “perversely” the process of trying to figure out whether everyone whose e-mail address came up in an NSA sweep was a “U.S. person” — meaning an American citizen or green card holder — would lead to more rummaging by the agency and could be seen as a greater invasion of privacy for those involved.

Some senators, including Franken and Sen. Richard Blumenthal (D-Conn.), sounded skeptical about the administration’s resistance to more detailed disclosure. Blumenthal pressed for more detail on the cost of producing the U.S.-person data, prompting Litt to say he was not aware of any detailed cost estimate that had been done.

Franken, the subcommittee chairman, said it was “kind of troubling” that NSA didn’t know how many Americans’ communications were being swept up in surveillance. “Isn’t it a bad thing that NSA doesn’t even have a rough sense of how many Americans have had their information collected?” he asked.

Franken also dismissed as inadequate the administration’s proposal that companies be allowed to disclose an aggregate figure of national security demands and ordinary federal law enforcement requests. “I don’t think that aggregation is all that helpful,” he said. “You’re mixing apples and oranges.”

“We want to support transparency, but we want to do so in a way consistent with our national security needs,” said Deputy Assistant Attorney General Brad Wiegmann, another witness at the hearing. He said terrorists or others could take note of an uptick in requests to a particular provider in order to pick up clues about what the government is doing — or not doing.

However, Franken noted that the court system publishes an annual report that breaks down traditional wiretap requests by judicial district, without any indication that lawbreakers are using the information to hone their activities. “Nobody is arguing that criminals in Manhattan are reading the wiretaps report and fleeing to Brooklyn because they are less likely to get their phones tapped there,” he said.

Republican senators at the hearing expressed a variety of views about the transparency proposals.

Heller, who testified at the outset of the session, painted his bill with Franken as a compromise that all senators should be able to endorse even if they differ on the bulk-collection of telephone call data.

“While there is disagreement on whether that program should continue, I am confident all of us can agree that these programs deserve more transparency,” Heller said.

Sen. Mike Lee (R-Utah) also favored more disclosure of information on the snooping programs. “It’s time we required a little more sunshine in this fairly shadowy space,” he said.

But the ranking Republican member of the subcommittee, Sen. Jeff Flake of Arizona, was non-committal about the Franken-Heller bill.

The hearing also included a panel featuring Google executive Richard Salgado, a former federal prosecutor who oversees the company’s interaction with law enforcement. He argued that the government’s proposal that companies be permitted to release aggregated numbers covering both national security-related and ordinary law enforcement requests would make Google’s current report less meaningful, by eliminating the current breakout of law enforcement demands.

“This would be a significant step backwards for Google’s users and the broader public,” Salgado said.

Kevin Bankston of the Center for Democracy and Technology said disclosure of numbers combining all kinds of law enforcement and national security orders served on a company would be so vague as to be worthless.

“It’s like asking a doctor to diagnose a patient by looking at its shadow,” he said.

The Google executive also said that defensive actions by companies and new regulations overseas — many of them prompted by the revelations of U.S. surveillance — are threatening to create a “splinternet” in which the internet is sectioned off by country. That would seriously set back American internet firms, he said.

“We’ve already seen impacts on the businesses,” Salgado added. “There’s real concern around the entire structure of the internet over these revelations if this isn’t addressed correctly.”

Sen. Patrick Leahy (D-Vt.), who serves as chairman of the broader committee, noted that companies served with orders from the Foreign Intelligence Surveillance Court are forbidden by law from disclosing that fact.

After Salgado said he had to decline to discuss Google’s receipt of such orders until the law was changed, Leahy asked: “Is the country safer because you cant answer that question?”

“I can’t imagine the country is safer as a result of that,” the Google exec replied.

Correction: An earlier version of this story gave an incorrect title for Litt.

CORRECTION: Corrected by: Nick Gass @ 11/14/2013 06:48 PM Correction: An earlier version of this story gave an incorrect title for Litt.

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