ODNI General Counsel Robert Litt’s as prepared statement for the record before the Joint Hearing of the Privacy, Technology and the Law Subcommittee of the Senate Judiciary Committee
Subject: “The Surveillance Transparency Act of 2013”
Chaired by: Senator Al Franken (D-MN)
Senator Dean Heller (R-NV)
Robert Litt, General Counsel in the Office of the Director of National Intelligence (ODNI)
Brad Wiegmann, Deputy Assistant Attorney General, National Security Division, Dept. of Justice
Location: 226 Dirksen Senate Office Building, Washington, D.C.
Date: Wednesday, November 13, 2013: Time: 10:03 a.m. EST
Thank you, Mr. Chairman, Ranking Member Flake, Senator Blumenthal. Thank you for the opportunity to appear before you today to discuss this very important issue of how best to inform the public about sensitive intelligence activities consistent with the need of national security.
And I want to say that I appreciate the support that you have shown for the intelligence community over the last few months and their activities.
The recent unauthorized disclosures have led to a public dialogue about intelligence collection activities, particularly those conducted under the Foreign Intelligence Surveillance Act. But it is critical to ensure that that public dialogue is grounded in fact rather than in misconceptions; and therefore, we agree that it’s important to help the public understand how the intelligence community uses the legal authorities that Congress has provided it to gather foreign intelligence, and the vigorous oversight of those activities to ensure that they comply with the law.
As you know, some months ago, the president directed the intelligence community to make as much information as possible about certain intelligence programs that were the subject of those unauthorized disclosures available to the public, consistent with the need to protect national security and sensitive sources and methods.
Since then, the director of national intelligence has declassified and released thousands of pages of documents about these programs, and we’re continuing to review documents to release more of them.
These documents demonstrate that these programs are all authorized by law and subject to vigorous oversight by all three branches of government.
And it’s important to emphasize that this information was properly classified. It’s being declassified now only because in the present circumstances the public interest in declassification outweighs the national security concerns that required classification. But we still have to take those national security concerns into account.
In addition to declassifying documents, we’ve also taken significant steps to allow the public to know the extent to which we use the authorities under FISA. And I agree with both of you and Senator Heller that it is appropriate to find ways to inform the public about this consistent with national security.
Specifically, as we set out in more detail in our written statement for the record, the government is going to release on an annual basis the total number of orders issued under various FISA authorities and the total number of targets affected by those orders.
Moreover, recognizing that it’s important for the companies to be able to reassure their customers about how often or, more precisely, how rarely the companies actually provide information about their customers to the government, we’ve agreed to allow them to report the total number of law enforcement and national security legal demands they receive each year and the number of accounts affected by those orders.
We believe that this approach strikes the proper balance between providing the public information about the use of the legal authorities and protecting our important collection capabilities. And I’d be glad to discuss that with you in more detail as we move ahead.
Turning to the Surveillance Transparency Act of 2013, which you and Senator Heller have cosponsored, we’ve reviewed the bill and we share the goal of providing the public greater insight into the government’s use of FISA authorities. And we appreciate the effort that you’ve made in this bill to try to accommodate transparency and national security. We’ve had good discussions with your staff about that bill.
Many of the bill’s provisions are consistent with the steps we’ve taken so far, and we support them. But we do continue to have concerns that some of the provisions raise significant operational or practical problems. These concerns are summarized or are set out in more detail in the written statement for the record. And I’ll just summarize here and now that they fall into two broad categories.
First, while we believe it is possible and appropriate to reveal information about the number of targets of surveillance, counting the number of persons or of U.S. persons whose communications are actually collected, even if they’re not the targets, is operationally very difficult, at least without an extraordinary investment of resources and maybe not even then.
For example, it’s often not possible to determine whether a person who receives an email is a U.S. person. The email address says nothing about the citizenship or nationality of that person.
And even in cases where we would be able to get the information that would allow us to make the determination of whether someone is a U.S. person, doing the research and collecting that information would perversely require a greater invasion of that person’s privacy than would otherwise occur.
It’s for these reasons that the inspectors general of the National Security Agency and of the intelligence community have stated in letters to the Congress that this kind of information simply cannot be reasonably obtained.
Second, we have significant concerns with allowing individual companies to report information about the number of orders to produce the data that they receive under particular provisions of the law. Providing that information in that level of detail could provide our adversaries a detailed road map of which providers and which platforms to avoid in order to escape surveillance.
We believe that the reporting we’ve already agreed to provides the right balance between transparency and national security.
Mr. Chairman, I want to emphasize our intention to work with the Congress and with this committee to ensure the maximum possible transparency about our intelligence activities that’s consistent with national security. The president is committed to this; the director of national intelligence is committed to this; the attorney general is committed to this; General Alexander is committed to this.
We’re open to considering any proposals so long as they do not compromise our ability to collect the information we need to protect this nation and our allies. And we look forward to working with you in this regard.