Transcript: Hearing Q&A with Rep. Adam Schiff on possible reforms to the NSA surveillance programs – Oct. 29, 2013

Partial transcript of Rep. Adam Schiff’s (D-California) Q&A with Stephen I. Vladeck, Professor at American University Washington College of Law, Steven G. Bradbury, Partner at Dechert LLP, and Stewart A. Baker, Partner at Steptoe & Johnson LLP, on possible reforms to the NSA’s surveillance programs before the House Intelligence Committee on Oct. 29, 2013:

Rep. Adam Schiff (D-California):
…I think the analogy is if we were the FISA court, we would have only heard from panel number one. And this may be a good illustration of why it would be desirable to have another viewpoint expressed within the FISA court.

As you heard from the panel that preceded you, the intelligence community appears very open to a restructure of the metadata program to have the data held by the providers. They also seem to be open to having a privacy advocate within the FISA court. I take it though there’s a division of opinion among the panel as to whether that would be desirable.
My own view on the domestic program is – and in all programs, we should ask three questions: Is it constitutional? Is it effective? And is it structured in a way to minimize any unnecessary intrusion on privacy?

How can the metadata program meet that third requirement if we can accomplish the same objectives if the data were held by the providers? So if you could comment on those two issues?

Steven G. Bradbury, Partner at Dechert LLP:
I guess, Congressman, I didn’t quite hear Deputy Director [Chris] Inglis say they were open to the idea or that they were agreeable to the idea of having the phone companies retain the data but rather that it had to meet certain requirements and that those would be pretty stringent. And I think among those would be the security of the data and the efficiency of the queries. And if the concern is over privacy and the potential for the misuse of the data, I actually think the safest place to house the data is in the basement of the NSA. I mean, I can’t think of a safer place…

Rep. Adam Schiff (D-California):
I have to say, the American people probably don’t agree with that assessment.

Steven G. Bradbury, Partner at Dechert LLP:
Well, I hope as a result of this very healthy process of debate and public discussion in Congress that the American people will be educated a little better on these issues because these are extremely important questions, and if you’re talking about creating a massive database and retaining it for years for this very important purpose – if it’s concluded as I believe it’s correct that it is in the national interest to do that – then the question of where is the safest place to keep it, I think it currently is in the safest place. And I think under strict restrictions of this very narrowly-focused order rather than in the basement of some third-party contractor someplace in some suburban office park, where who knows who could get access to it and we are not watching it every hour of every day.

Rep. Adam Schiff (D-California):
…I concur with you at least in one respect. I’m not advocating that we transfer the problem to some other third-party agency or private vendor. I am advocating that the private vendors hold on to their own data, which they do under the ordinary course of business anyway. Mr. Vladeck?

Stephen I. Vladeck, Professor at American University Washington College of Law:
…I would say I share your view that I think there’s a difference between private retention and government retention in two respects.
First, most of us know or at least legally bound to know that we are giving our information to these third-parties, that we are giving information to our phone company, to our bank, et cetera. We may not know that the government is therefore then storing it.

Second, even if our phone company, electronic communication service provider has the ability to have all this data for us, what they cannot do, which the government can do, is aggregate all of the disparate data streams. And so I think there are different privacy expectations when it comes to my call data, which I know Verizon has, and my call data cross-referenced with my GPS data from my car, cross-referenced with my bank data, which no one private party should have but which the government at least under these programs may in fact possess.

So I think it’s not just an intuitive difference. I actually think it may be a constitutional and significant difference with regards to individual’s expectation of privacy.

Stewart A. Baker, Partner at Steptoe & Johnson LLP:
I have to say, I understand the concerns the American people have about this data in the basement of the National Security Agency. But when they figure out that this data in the hands of private parties is subject to subpoena by every divorce lawyer in America, I’m not sure they’re going to think that’s an improvement.

Rep. Adam Schiff (D-California):
That’s the case already though, isn’t it Mr. Baker?

Stewart A. Baker, Partner at Steptoe & Johnson LLP:
The data that is currently stored at any particular carrier can be subpoenaed by a divorce lawyer, that is true. But now, we’re going to say you must store this, you must keep it accessible, you’ve got to allow us to establish computer hook-ups to correlate that data – all of those opportunities, with the possible exception to the last – are going to be available to civil litigants, to law enforcement. Law enforcement gets 1.3 million records requests today a year. They’re going to find this a wonderful thing and they’re going to find this a wonderful thing and it’ll go to 2 million. I’m not sure we’re really changing the privacy calculous for Americans by putting this responsibility on the carriers.

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