Transcript: Sen. Richard Blumenthal’s Q&A with Robert Litt and Brad Wiegmann on the Surveillance Transparency Act – Nov. 13, 2013

Partial transcript of Sen. Richard Blumenthal’s (D-Connecticut) Q&A with Robert Litt, General Counsel at the Office of the Director of National Intelligence, and Brad Wiegmann, Deputy Assistant Attorney General, National Security Division, on the Surveillance Transparency Act of 2013. The Senate Judiciary Subcommittee on Privacy, Technology and the Law hearing was held on Nov. 13, 2013:

Sen. Richard Blumenthal (D-Connecticut):
…It really embodies the general truth that what you don’t know can hurt you, and what the American people don’t know about much of what you do – and it is important, indeed, essential work to our national security – can create misinformation and deception and undermine the trust and credibility in the entire program of surveillance and intelligence vital to national security. So what the American people don’t know can hurt them if it becomes a source of mistrust and loss of credibility here and around the world. So I think that this bill is very important albeit only a first step and I propose other measures such as a constitutional advocate that I think fits with the concept of this bill in terms of preserving an adversarial and accountability measure as well as greater transparency and accountability in other ways.

I would like to focus on the technical issues that you’ve raised. Don’t these pale compare to the importance of the objective, and aren’t they surmountable with relatively few resources if we define narrowly what those technical problems are?

Robert Litt, General Counsel at the Office of the Director of National Intelligence:
Well, taking – I mean, I would say no and no. Taking your second point first, the judgment of people who have looked at this not only people within NSA but as I said two Inspectors General who’ve also looked at it, this is not surmountable with a relatively modest application of resources, that it would be very resource intensive, and as I said particularly with respect to U.S. persons require additional intrusions on privacy. Our judgment is that this is not the best way to try to strike the balance between privacy and national security. I understand the view that there is important information out there, but one of the necessities of conducting intelligence operations is that not all the information that might be of use to the public is going to come out of the public. So I think that our view is that the steps that we’ve taken are appropriate ones and we’re prepared to work with the committee and the Congress on additional steps that might be taken.

Sen. Richard Blumenthal (D-Connecticut):
…I don’t understand what resource intensive – you know, that’s a code word. It’s a term of art maybe that’s used to say it looks pretty difficult to do, looks like it’s going to cost a lot. How resource intensive really is it to accomplish these purposes?

Robert Litt, General Counsel at the Office of the Director of National Intelligence:
I don’t know that we’ve done an actual cost estimate. The only yardstick I can give you is what was required to do the smaller and easier task that was done in connection with the FISA court opinion that required, I believe, a half dozen analysts 2 months to do and still come up with an estimate that had wide ranges in it…

Sen. Richard Blumenthal (D-Connecticut):
Maybe you can give us some idea of what those ranges are?

Robert Litt, General Counsel at the Office of the Director of National Intelligence:
If you give me a second – [flipping through documents] – it’s a long opinion and it’s going to take me a second to find the right place. I’m sorry. I should have marked this in advance. So as I said the issue was to determine what were wholly domestic communications, which I said is a different task, and as a result of this review, they determined that there were between 996 – essentially between 1,000 and 5,000 communications that met that task. So you have a range – a five-fold range there and there are other estimates in here that say, for example, well it wouldn’t be greater than this number but they’re all based on assumptions and estimates. And I don’t know that there’s any comfort that we could accomplish this with any degree of reliability.

Sen. Richard Blumenthal (D-Connecticut):
But you’ve given me a number for the communications but not a number for the dollars…How do you measure resource intensive?

Robert Litt, General Counsel at the Office of the Director of National Intelligence:
…I mean, you’d have to look at the people who require and the amount of time that it would require.

Sen. Richard Blumenthal (D-Connecticut):
And can you give us some idea what they would be?

Robert Litt, General Counsel at the Office of the Director of National Intelligence:
As I said, the only metric that I have is what was required to get this number and my understanding is that that was, I believe, 6 analysts for a 2 month period. You’d have to multiply that across a much larger sample, a much more difficult task, and an additional FISA authorities. So you’re talking some number of man-years that would be required to do this.

Sen. Richard Blumenthal (D-Connecticut):
Thank you. And let me just move on in the interest of perhaps anticipating the testimony we’re going to receive from the next panel. I don’t know if you had a chance to review that testimony but, for example, a lot of it concerns the impact on communications internationally. And I wonder if you could comment in particular on the testimony – very compelling testimony from [Richard] Salgado – about the need for transparency to enable the trust and credibility that is important for communications worldwide.

Robert Litt, General Counsel at the Office of the Director of National Intelligence:
So I haven’t had a chance to review the other testimony. I’m generally familiar with the company’s position. I think we have a lot of sympathy for their position. The unauthorized disclosures that have come out here have put them in a difficult position. It’s one of the many things we regret about these disclosures.

Having said that, as Brad mentioned earlier, we’re prepared to authorize companies to release the total number of orders they get to disclose customer information and the total number of accounts affected by those orders. That’s going to be a minuscule number. As Brad said, it’s a fraction of 1% and that covers all authorities. And it seems to me that that minuscule number is sufficient to meet the company’s needs and it really doesn’t advance things anyway when they’re allowed to disclose that 0.0001% of their customer accounts are affected by orders to provide information to the government. It doesn’t really advance their needs to say “Well, 0.0001% of those were pursuant to this authority and 0.0003% were pursuant to that authority.” The relevant statistic is that any customer of Google or of any other company – there’s only an infinitesimal likelihood that that person’s information is ever going to be asked for by the government.

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