Cur­rent snoop­ing ef­forts backed

Coun­sel says ‘right bal­ance’ al­ready is fol­lowed

The Washington Times Daily - - Politics - BY SHAUN WATER­MAN

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.

Litt

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