Congress Told That NSA Can't Count Number of Americans in Its Data Grab

WASHINGTON – Obama administration officials told lawmakers that while they support providing more information about surveillance programs to the public, they object to legislative proposals that could undermine national security and divert intelligence resources at the expense of greater transparency.

A subcommittee of the Senate Judiciary Committee debated last Wednesday legislation that would force the government to release statistics on how many Americans have had their data collected under various surveillance programs.

The legislation proposed by Sen. Al Franken (D-Minn.) would require the National Security Agency (NSA) to disclose publicly how many people targeted were Americans, and allow companies to report more information about the surveillance requests they receive and the number of users whose information is turned over.

The Surveillance Transparency Act would also require the government to annually report on the number of Foreign Intelligence Surveillance Court orders issued under various surveillance laws, the general categories of information collected, the number of U.S. persons whose information was collected under the categories, and the number of U.S. citizens whose information was actually reviewed by government agents.

The legislation comes at a time a divided Congress is considering whether to ban practices like the wholesale collection of data on Americans’ telephone calls or to implement limited changes that would effectively put some of the data collection on a stronger legal footing.

Recently, the Senate Intelligence Committee sent to the full Senate a measure, sponsored by chairwoman Dianne Feinstein (D-Calif.), that would strengthen the legal authority of the NSA’s bulk collection of domestic telephone data.

“What we're trying to do is create a framework where people have a little bit more confidence and understanding,” Franken said at the hearing. “Or can decide for themselves whether they should have confidence.”

Robert Litt, general counsel for the Office of the Director of National Intelligence, said it is possible to reveal information on the number of targets of collection activities, but there is no reliable method to find out the number of U.S. people whose data is actually collected, even if they are not the target.

“Counting the number of persons or of U.S. persons whose communications are actually collected, even if they're not the target, is operationally very difficult,” he told the Judiciary Committee’s privacy subcommittee. “This kind of information simply cannot be reasonably obtained.”

Litt said it took six NSA analysts over two months to determine how many Americans’ communications were swept up in an NSA collection mistake in 2011. Compiling these statistics on a larger scale would be time consuming, if not impossible, and take resources away from NSA’s mission of uncovering terrorist plots.

“[NSA] mathematicians have other things that they can be doing in protecting the nation…rather than trying to go through and count U.S. persons,” Litt said, referring to published statements that NSA is the nation’s largest employer of math experts.