Today, the Office of the Director of National Intelligence (ODNI) released its first transparency report, including annual statistics for 2013 regarding the use of certain national security legal authority.
It has been nearly ten months since US President Barack Obama directed the ODNI to deliver a transparency report. While Access welcomes any information on the extent of the NSA’s surveillance activities, it is troubling that the ODNI has reserved itself the right to provide incomplete information under the pretense of “protecting sensitive classified intelligence and national security information.” ODNI’s unwillingness to engage in meaningful transparency comes as no surprise. In fact the Director of National Intelligence, James Clapper, has openly said that transparency aids the “adversary” and may be taken advantage of. This disingenuous attitude towards transparency comes through in several ways in ODNI’s recent report, which lacks rigor and clarity.
Not prioritizing transparency
In June 2013, President Obama called for the Intelligence Community to make public as much information as possible about US Government surveillance programs. That August, the ODNI released a directive that promised greater transparency reporting. Almost 10 months later, the ODNI finally released the report issued today. Even with the delay, much of the information provided has already been made available in the annual FISA report. The absence of new information in the report, along with the nearly one year delay in its publication, shows the Intelligence Community is not making transparency a priority for the intelligence community.
In ODNI’s report, the NSA continues to play word games in an attempt to cloud the scope of its operations. For example, the report mentions an estimated number of targets affected, yet obfuscates the definition of “targets” to include an individual person, a group, an organization composed of multiple individuals or even a foreign power. Under Title I, III, IV, and VII of the FISA Act, over 90,000 targets were affected by NSA legal authority. This highly ambiguous definition of “targets” makes it impossible to determine the likely exponentially larger number of people who have had their privacy violated by the NSA’s dragnet surveillance.
Further, there is also no mention in ODNI’s report of the number of people affected by National Security Letter (NSL) requests or even the number of estimated targets affected. Though they mention the risk of providing an inflated number of affected persons, this is not sufficient reason to provide no information at all.
Though Access is pleased with the release of an ODNI transparency report, transparency is more than just a headline. A meaningful transparency report must include more information, such as the number of people affected by NSA activities, or else there is little to be gained. The US intelligence community needs to provide real, concrete numbers – at least semi-annually – on the individuals impacted by its foreign intelligence surveillance activities. Further, they should notify specific individuals who have been subject to surveillance of that fact after the operation has been completed. Finally, the US government should act immediately to allow more robust transparency reporting by private companies subject to surveillance orders, something companies themselves have demanded during the past year. To have any meaning and impact at all, we deserve a complete and detailed account of US Government surveillance programs. We can not accept the partial release of handpicked statistics that paint an incomplete picture as ”transparency.”