On Friday, a group of members of Congress who are central to the surveillance debate demanded some kind of answer, even a vague one, about how many Americans are having their data harvested by surveillance programs.


In a sharply worded letter (PDF) to Director of National Intelligence James Clapper, 14 members of the House Judiciary Committee insisted he provide some type of “public estimate” of the number of US communications that are being caught up in surveillance programs authorized by Section 702 of the FISA Amendments Act. That’s the law that spy agencies like the NSA use to justify “upstream collection” of bulk data from Internet infrastructure.

“We note that we are not the first to ask you for this basic information,” states the group of representatives. They mentioned that Sen. Ron Wyden (D-Ore.) and former Sen. Mark Udall (D-N.M.) have asked for such information since 2011.

The House Judiciary Committee is tasked with overseeing surveillance, and its members will be the first to decide whether to extend Section 702 beyond its scheduled sunset at the end of 2017.

“We are not asking you for an exact count,” the letter states. “Today, our request is simply for a rough estimate… we require your assistance in making a determination that the privacy protections in place are functioning as designed.”

The letter was signed by eight Democrats and six Republicans. It includes senior members from both parties, although committee chairman Bob Goodlatte (R-Va.) did not sign.

The letter points out such research has already been done. An October 2011 opinion of the FISA court manually reviewed a sample of 50,440 Internet transactions, taken from a group of 13.25 million acquired during a six-month period.

In that case, the court found that the NSA had “circumvented the spirit of [the statute] with regard to that collection.”

No satisfactory answer

Today, Clapper told a gathering of reporters the committee will get some kind of answer, but likely not a satisfactory one.

A public estimate might not be possible, he said, emphasizing that “any methodology we come up with will not be completely satisfactory to all parties.”

“If we could have made such an estimate, and if such an estimate were easy to do—explainable without compromise—we would’ve done it a long time ago,” Clapper said on Monday, according to a report in The Hill.

Clapper also repeated an interesting excuse for not releasing the data: he proposed that by merely searching the upstream data, the government could subject Americans to more invasions of their privacy. That reasoning allows intelligence officials to paradoxically blame privacy advocates for the lack of data.

“Many people find that unsatisfactory, but that is a fact,” Clapper said.

It’s such a tired excuse that the 14 signatories of the letter had already predicted he would make it. “On this point, we refer you to the judgment of the many civil liberties organizations that support conducting a ‘one-time, limited sampling of these communications’ if necessary,” the letter states.

The advocacy groups believe, and the letter-writers agree, that a limited search to gather data would be a “net gain for privacy,” and the politicians who signed the letter agree.

At the same gathering, Clapper discussed his view that the Snowden revelations had sped up the development of encryption, and this was “not a good thing.”

Clapper has been asked for a response to the House Judiciary letter by May 6.