Transcript: Consultant Paul Rosenzweig’s testimony on the Surveillance Transparency Act – Nov. 13, 2013

Partial transcript of testimony of Paul Rosenzweig, Founder of Red Branch Consulting, on the Surveillance Transparency Act of 2013. The Senate Judiciary Subcommittee on Privacy, Technology and the Law hearing was held on Nov. 13, 2013:

…I thank you very much for the invitation to appear today. It is always an honor to be asked to provide one’s views to the Senate of the United States and I thank you for affording me that opportunity.

I should begin by saying that as a current holder of a top secret clearance for some of the work I continue to do for DHS, I have limited what I have read to what has been lawfully declassified by the DNI as have most of the people in my position, which somewhat constrains how I can speak to the issues today.

That having been said, I would make 4 basic points.

The first thing is that transparency is a good thing, but unlimited transparency cannot be our end goal. Secrecy itself has its virtues in any number of circumstances. One can think of everything ranging from the attorney-client privilege to the identity of an undercover officer in a gang in Los Angeles to any number of reasons why governments legitimately keep secrets that are subject to oversight in a classified manner either through the oversight of their executive branch or the legislative branch or in some cases the judicial branch.

Thus, while I fully support the overarching sentiment that underlines much of the bill that is before you, that is the idea that we can and should seek to increase transparency with respect to the NSA surveillance programs. I think we have to do so in a calibrated way, one that takes into account what the end goal of transparency in this circumstance is.

Now, I would submit that the end goal here is greater oversight, greater audit, greater assurance that the NSA and other intelligence community activities are acting in conformance with the laws as we’ve set them out and not in ways that are in violation of those laws.

So to my mind, the right answer to many of the questions that you’re asking is how will the transparency that you’re advocating advance that goal.

With that in mind, my second point is that I think the proper reflection on what we should be learning more about with respect to the NSA surveillance is to require a lot of disclosure of aggregate information, a lot of disclosure with respect to existing programs, but that we should take very seriously the protestations of government officials who are, frankly, in a better position to know than I – at least – given what little I know about the classified nature of these programs that further disclosures will disclose sources, methods, capabilities that have not yet publicly been disclosed. Indeed, my single greatest constructive criticism that I would offer with respect to the bill before you is the idea that the disclosure requirements are key to statutory programs themselves, like Section 215 and Section 702, and seems to operate from the unstated assumption that we have already learned all the classified programs that are operating under those statutes. If that’s the case, then the transparency that is key to those sections is to be welcomed indeed. I suspect, without knowing, that there are other program – other covert programs that have not yet been disclosed either lawfully or unlawfully, and it is at least plausible to me that further disclosures of particularized numbers would lead to the disclosure of programs that have not yet made it into the public record. And if that were the case, I would think that that would be an unfortunate result.

My third point would simply be that the most effective reforms, I think, are not just enhanced transparency for the American public but more structural reforms – things that you can do that aren’t part of this bill but that are part of, I think, what Congress can do – things like making the NSA Inspector General a presidential appointment, expanding the jurisdiction of the Privacy and Civil Liberties Oversight Board. Those sorts of things don’t sound as sexy as greater transparency but I tend to think that in the end they will actually prove more effective than even the most detailed disclosures of the individuated numbers within various programs.

With that, I will conclude and I look forward to your questions.


Learn More: