Senate Debates Surveillance Transparency Act of 2013

Washington D.C. – Senator Al Franken presided over a hearing today in which lawmakers and technology experts discussed the National Security Administration’s surveillance practices, examining a proposed bill that would require that the U.S. spy agency carry out its operations in a more transparent fashion.

There have been countless hearings in both the House and Senate since the Snowden leaks began in June, and there seems to be no end in sight. The latest committee to get in on the action was the Senate Committee on the Judiciary’s Subcommittee on Privacy, Technology and the Law, which held a hearing today in which lawmakers and technology experts discussed the National Security Agency’s expansive and increasingly public surveillance practices, examining a proposed bill that would require that the U.S. spy agency carry out its operations in a more transparent fashion.

When all was said and done, the general consensus of those not advocating for the NSA was that a bill introduced by Sen. Al Franken (D-Mich.), chairman of  the committee, would be a great step forward, but that transparency alone would not undo the damages done to U.S. companies and its government by PRISM and other similar surveillance programs. Nor, they seemed to agree, would the addition of transparency make the NSA’s programs lawful or constitutional.

Franken said that The Surveillance Transparency Act would require that the NSA disclose to the public how many people are having their data collected under each key foreign intelligence authority. It would also make the NSA estimate how many of those people are American citizens or green card holders and how many of those Americans had their information actually looked at by a government agent. His bill, he continued, would lift the gag order on Internet and phone companies so that those companies can tell Americans general information about the number of orders they are receiving and the numbers of users whose information have been produced in response to those orders.

American cloud providers are losing as much as $180 billion per year as a direct result of their inability to report how often the government requests information, how often they comply with those orders, and how much information they hand over to federal authorities, Franken said. Other witnesses agreed that the U.S. government and the civil liberty of its citizenry were not the only victims of pervasive government surveillance.

“My bill would permanently ensure that American citizens have information they need to develop an informed opinion about government surveillance and it would protect American companies from losing business about misconceptions about their roles in these programs,” Franken said. “Americans still have no way of knowing if their government is striking the right balance between privacy and security and whether their privacy is being violated.”

“I believe that the bulk collection program mostly authorized under section 215 of the PATRIOT Act should come to an end,”said Sen. Dean Heller (R-Neb.). “While there is disagreement on whether this program should continue, I am confident that we can all agree that these programs need more transparency.”

Robert Lit, the Director of National Intelligence’s general counsel, said that more transparency is needed, but his reason for it was different than that of the other witnesses. His goal, and that of the DNI presumably, was to use transparency as a tool to dispel exaggerations, myths, and general misinformation about the government’s spying programs.The DNI’s counsel claimed that they – proponent’s of Franken’s bill and the national security community – agree on the broad view of the bill, but they have concerns that some of the bill’s provisions could harm intelligence and national security operations.

“The DNI has declassified and released thousands of pages of documents about these programs and we are continuing to review documents to release more of them,” he said. “These documents demonstrate that these programs are all authorized by law and subject to vigorous oversight by all three branches of government.

“It’s important to emphasize that this info was all properly classified. It is being declassified now only because in the present circumstances, the public interest in declassification outweighs the national security concerns that required classification.”

More specifically, Lit said one of the intelligence community’s primary concerns is that enumerating the exact number of U.S. citizens monitored under their surveillance programs would be too difficult and resource-intensive.

“It is often not possible to determine whether a person who receives an email is a U.S. person. The email address says nothing about the citizenship or nationality of that person,” Lit said. “Even in cases where we would be able to get the information that would allow us to make the determination of whether someone is a U.S. person, doing the research and collecting that information would perversely require a greater invasion of that person’s privacy that would otherwise occur.”

Therefore, he said, the NSA and the intelligence community have written letters to Congress informing them that this kind of information simply can not be reasonably obtained.

Kevin Bankston, Director, Free Expression Project at the Center for Democracy and Technology, in later testimony called the NSA’s incapability to provide estimation of the number of individuals swept up in their surveillance “shocking.” He would then say that Lit’s other claim – namely law enforcement can not make a meaningful estimate of how many people’s data it has collected – “just doesn’t make sense.” Lit took more issue with the bill before that point though, going on to say that the intelligence community also has significant concerns about giving companies permission to publish information about the number of orders of data request they receive.

“Providing that information in that level of detail,’ Lit said, “could provide our adversaries a detailed road-map of which providers and which platforms to avoid in order to escape surveillance.”

Bankston laid out three reasons why it is important to allow companies to more transparently disclose the information requests they receive. First, he claimed that both citizens and policy makers have the right and the need to know about the scope of government programs. Second, he said that companies have a clear First Amendment right to tell us this information. The government’s attempts to gag them is clearly unconstitutional, he said. Lastly, Bankston argued that greater transparency is needed to restore trust in the U.S. government and businesses.

“Indeed you will see this prior restraint at work today in the room,” Bankston said. “Even though everyone in this room knows and understands that Google has received Foreign Intelligence Surveillance Act process, Google’s representative is the one person in the room who cannot admit it.”

Later, Sen. Patrick Leahy (D-Vt.) would echo that sentiment, asking another witness, Richard Salgado, the director for law enforcement and information security matters at Google, if he was permitted to tell the committee if Google had received any FISA orders. Salgado responded, with a smirk, that he would have to decline to answer the question until the bill being discussed today was passed. Leahy proceeded to ask if Salgado thought that the country was safer as a result of his inability to answer the question.

“I can not imagine the country is safer as a result of that,” Salgado said, again smiling.

Before that exchange, Salgado commended the Surveillance Transparency Act as activists in the back row held up signs urging Google to, “Keep [their] data private.”

Salgado said there has been no intimation from the Department of Justice to suggest that publishing National Security Letter information – another contentious issue tied up in and intrinsically bound to the surveillance debate – has any real impact on the country’s national security. Despite this, he said, Justice has not given Google permission to publish any meaningful information about the number of NSLs it receives – other than publishing vague ranges of numbers including both NSLs and individual data requests. In fact, Salgado explained, the permissions that Google has been granted by the department would be a significant step backward from the level of transparency demonstrated by transparency reports Google already publishes.

Bankston then compared the publishing of vague ranges of numbers as a transparency report to a doctor who is forced to diagnose disease by examining a patient’s shadow.

“Only the grossest, most obvious abuse would be evident, if even that,” he said.

Amid all of this, Lit and the other witness at the hearing on behalf of the national security community, Brad Wiegmann, deputy assistant attorney general for the National Security Division, continued to assure the committee members that the NSA had made changes to and increased the operational transparency of the government’s spying programs in light of public interest. All in all, they said these programs have proper regulation and oversight.

“In short,” Salgado responded to those claims, “the DoJ proposal would not provide the type of transparency that is reflected in the Transparency Surveillance Act of 2013. Transparency is critical in informing the public debate on these issues, but it is only one step among the many that are needed.”

Leahy chimed in later:

“Is just enhancing transparency going to be enough to bring back global confidence in American technology companies?” he asked.

Salgado replied that transparency is a good first step, but that, ultimately, it would not be enough. Users, he said, need to be assured that such surveillance practices are done under law, in a rule-bound and narrowly tailored manner, and that there is oversight and accountability for it. Bankson agreed, saying that substantial reform – in addition to transparency – will be needed to repair the U.S. government’s image.

As public outrage grows, especially among the technical elite, bills similar to Franken’s are popping up in the House of Representatives on the other side of the Capitol as well as in the Senate.

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