ODNI attorney: 'Security and privacy are not zero-sum'

General counsel discusses NSA surveillance, says new technology demands new thinking from the intelligence community.

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After weeks of swirling speculation and heated privacy-rights debates, one top intelligence official stepped up July 19 to clarify and defend National Security Agency surveillance activities that have been dominating the news since Edward Snowden released classified documents in late June.

Speaking at the Brookings Institution in Washington, Robert Litt, general counsel at the Office of the Director of National Intelligence, pointed to an explosion of technology and widespread public sharing of information as key factors in protecting the United States – and in fueling the debate over how the government accesses and uses citizens' data.

Litt offered the most public details so far about how the government is using telephone and Internet records, and described their use as very narrow, limited and critical to national security. He also insisted such surveillance programs are legal and have been approved by all three branches of the federal government, which execute close oversight of the programs.

"Security and privacy are not zero-sum," Litt said. "We have an obligation to give full meaning to both – to protect security while at the same time protecting privacy and other constitutional rights."

Today's culture is pervaded by information-sharing, including with third parties – think social media, or even phone companies, which keep call records, Litt said. He also acknowledged that citizens have reason to be more concerned with how the government uses their information than with how third parties may.

But Litt also pointed out that everyday Americans are not the only ones enjoying the benefits of a digital society – adversaries, too, are communicating online and "hiding in plain sight." And that, he asserted, is the government's target.

"New technology means the intelligence community must continue to find new ways to locate and analyze foreign intelligence information. We need to be able to do more than connect the dots when we find them; we need to be able to find the right dots in the first place," Litt said.

To do that, Litt said the government must cast a wide net – one that includes civilians and their information.

"One approach to protecting privacy in this context would be to limit the intelligence community to targeted, focused queries looking for specific information about identified individuals based on probable cause," he said. "But from a national security perspective, this would not be sufficient...rather than trying to solve crimes, we're trying to find out information about the crimes before they happen."

Litt acknowledged that public discussion about these kinds of activities should have been taking place before Snowden leaked data revealing the programs' existence. Now exposed and with details at least partially disclosed, intelligence community officials are working on declassifying and publicly releasing program information, a plan for which Litt said he is optimistic.

"I'm hopeful that we will be able to release court documents that will provide a greater visibility into exactly how these programs are run," Litt said. "We're looking at all of our programs to see what can be declassified to inform the public debate."

Litt outlined some of the legal specifications for the intelligence community's use and storage of information collected by the government, including for collecting and using telephone data. According to Litt, the use of telephone data must adhere to six key limitations specified by the FISA court:

  1.   Information must be stored in secure databases.
  2.  Information can only be used for counterterrorism intelligence purposes.
  3.  Only a limited number of specially trained analysts can access the data, and only when they have reasonable, articulable suspicion of a particular phone number being associated with a particular foreign terrorist organization. That suspicion must be documented in writing and approved by supervisors.
  4.  Analysts only can use the metadata in a limited way involving the mapping of networks of phone numbers calling other phone numbers.
  5.  Because databases contain only metadata, analysts can only access and disseminate actual phone numbers, not any content data related to the phone number, such as the owner's name or communications. Collecting or investigating further information beyond the phone number metadata requires separate legal authorities.
  6.  Information is destroyed after five years.

"The net result is that while we collect large volumes of metadata under this program, we only look at a tiny fraction of it and only for a carefully circumscribed purpose: to help us find links between foreign terrorists and people in the United States," Litt said. "The collection has to be broad to be operationally effective, but it's limited to non-content data that has low-privacy value and is not protected by the fourth amendment. It doesn’t even identify the individual. Only the narrowest, most important use of this data is permitted. In this way we do protect both privacy and national security."

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