Transcript: Center for Democracy and Technology Free Expression Project Director Kevin Bankston’s testimony on the Surveillance Transparency Act – Nov. 13, 2013

Partial transcript of testimony of Kevin Bankston, Director, Free Expression Project at the Center for Democracy and Technology, on the Surveillance Transparency Act of 2013. The Senate Judiciary Subcommittee on Privacy, Technology and the Law hearing was held on Nov. 13, 2013:

…Thank you for the opportunity to testify on behalf of the Center for Democracy and Technology, a non-profit public interest organization dedicated to keeping the Internet open, innovative and free.

I and the broad coalition of Internet companies and advocates that CDT brought together this summer to press for greater surveillance transparency are grateful to Chairman [Al] Franklin and Sen. [Dean] Heller for introducing the Surveillance Transparency Act, a bill that would allow companies and the government to publish basic statistics about how the government is using its national security surveillance authorities.

Particularly in the wake of recent revelations about the NSA’s surveillance programs, we believe this level of transparency about what companies do and don’t do in response to government demands is critically important for three reasons.

First, the American people and policymakers have a clear right and need to know this information so that they have a more informed public debate about the appropriateness of the government’s use of its authorities and to better ensure those authorities are not misused or abused.

Second, the companies have a clear first amendment right to tell us this information, and the government’s attempt to gag them from this most basic data or even to admit they have received foreign intelligence demands at all is clearly unconstitutional. Indeed, you’ll see this prior restraint at work today in the room. 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.

Third, greater transparency is urgently necessary to restore the international community’s trust in the U.S. government and in our U.S. Internet industry, which is projected to lose tens, if not, hundreds of billions of dollars in the face of widespread concerns from foreign governments and international users.

We must take this opportunity to demonstrate that our surveillance practices are necessary and proportionate and respectful of constitutional and human rights. And if the numbers show otherwise, we must take this opportunity to reform our surveillance laws to better protect our rights as well as our national security.

Speaking of national security, there are two basic arguments why publishing these numbers would threaten it but neither is persuasive.

First, there is concern that such reporting will reveal which services have not been targeted by the U.S. government such that the enemy will seek them out. However, it has always been the case that companies that haven’t yet received secret national security demands can say they have not received secret national security demands as was most recently demonstrated just last week when Apple revealed it has never received an order under Section 215 of the Patriot Act.

The second argument is that reporting will reveal which services have been targeted such the enemy will avoid them. However, this concern rings somewhat hollow when top intelligence officials such as current NSA Director Keith Alexander have repeatedly and publicly announced the names of various services such as Google, Facebook, Twitter, and Yahoo that they believe terrorists are using. Sen. Franken also mentioned the comment by former NSA Director Hayden.

Put simply, as these Generals recognize, saying that someone on a service is being surveilled is very different from identifying who on that service is being surveilled; only the latter is dangerous to national security.

Therefore, the less transparent alternatives to the bill that the government has suggested are unnecessary to protect national security. More than that, they would actually be worse than the current transparency status quo.

On the government reporting side, the DNI has announced he will voluntarily publish new statistics regarding how many people have been “targeted” under various surveillance authorities. But such limited reporting would actually be misleading.

For example, the DNI’s reporting for 2012 would only have indicated that around 300 people had their telephony metadata targeted under Section 215 of the Patriot Act. Yet, we now know the government has used Section 215 to obtain the phone records of every single person in the country. Such falsely reassuring reporting would do more harm than good.

On the company reporting side, the government advocates for a lot of what I’ll call “fuzzing” and “lumping.” They want to lump together into a single number all the different foreign intelligence authorities as well as all state, local, and federal law enforcement requests and then fuzz that number up by putting it into a range of a thousand. That kind of fuzzing and lumping would be a step back for transparency, obscuring more than it reveals, especially considering that companies are already engaged in detailed reporting about the law enforcement process the receive and in some cases have also been allowed to publish separate rounded numbers about the national security letters they receive. No one has ever suggested that either that reporting or the detailed reporting that the government has done for decades about its law enforcement wiretapping has ever disrupted an investigation neither would the reporting require and allow for under this bill or that provided by the transparency provisions of the USA Freedom Act – another bill the CDT strongly supports.

Greater transparency is no replacement for substantive reform of our surveillance laws but it can serve as a key stepping stone toward that broader reform by allowing the public and policymakers to better understand how the government is using its powers.

So I thank you for your consideration and I look forward to your questions.


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