Transcript: Sen. Al Franken’s Q&A with Kevin Bankston, Richard Salgado and Paul Rosenzweig on the Surveillance Transparency Act – Nov. 13, 2013

Partial transcript of Sen. Al Franken’s (D-Minnesota) Q&A with Richard Salgado, Director of Law Enforcement and Information Security Matters at Google, Kevin Bankston, Director, Free Expression Project at the Center for Democracy and Technology, and 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:

Sen. Al Franken (D-Minnesota):
Mr. Bankston and Mr. Salgado, you heard witnesses from ODNI and DOJ say that it’d be very difficult for the government to provide an estimate of the number of U.S. persons caught up in surveillance. Do you agree with them?

Kevin Bankston, Director, Free Expression Project at the Center for Democracy and Technology:
I’d prefer to talk about what the NSA should be able to do rather than get into a debate over what they technically could do, although I have some opinions about that as well.

The authorities we’re discussing today are foreign intelligence authorities. They are predominantly intended to or sometimes limited to acquiring the communications of foreign persons or persons outside of the United States and have special protections for U.S. persons. Therefore, knowing how many U.S. persons have been surveilled, have been swept up intentionally or unintentionally under these powers is critical to understanding whether they’re being used correctly, proportionately, in line with constitutional and statutory limits.

And the fact that the NSA is claiming that it does not have the ability to provide even a rough estimate as to how many U.S. persons have been swept up in their surveillance is, quite frankly, shocking, and, I think, points to perhaps a need to recalibrate what we are authorizing them to do if they cannot even judge how their activities are impacting the American people.

More importantly, I’m also disappointed to hear the implication that the NSA has more important things to do than to ensure that it is not inappropriately impacting the privacy of U.S. persons. That should be a core priority of the NSA – one that it can and should dedicate a reasonable amount of resources to. We think that reasonable amount of resources, it can, as demonstrated in the FISA court case of 2011, take measures to make reasonable estimates about how their authorities are impacting…

Sen. Al Franken (D-Minnesota):
Indeed, in the FISA court decision in 2011, NSA had been violating its authority, right? And they were able to discover that partly by doing the kind of estimation that they did.

Kevin Bankston, Director, Free Expression Project at the Center for Democracy and Technology:
Indeed. And if such estimations had been required – if those had been required earlier, we would have found out 3 years earlier that Americans were unconstitutionally being surveilled and presumably would’ve put a stop to it.

Sen. Al Franken (D-Minnesota):
Mr. Salgado?

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
I think it certainly makes sense to explore all the various ways that we can increase transparency around these programs – whose data is being collected and what data. We want to be able to do that, of course, in a way that’s practical, reliable way. So I think it makes good sense to explore the different ways that kind of obligation can be satisfied by the government and to take into account the cost that may be necessary to incur. But certainly the value of that sort of detail is significant.

Sen. Al Franken (D-Minnesota):
Thank you. Mr. Bankston, you organized an impressive coalition of dozens of technology companies and civil society groups all calling for greater transparency and endorsing my bill specifically. It’s a broad coalition of the nation’s leading technology, Internet companies including Google and Apple and Microsoft and Facebook as well as many leading civil liberties groups. Mr. Salgado, could you just speak to why Google and Apple and Microsoft and Facebook are companies that normally compete with each other are working together on this and what this means in terms of your business?

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
…The disclosures that we’d seen coming out in June and then since then have really the great potential for doing serious damage to the competitiveness of these American companies. There’s a potential for great damage to the Internet as a whole. But certainly what I think these companies and Google recognize is that trust that’s threatened is essential to these businesses. It’s very important that the users of our services understand that we are stewards of their data; we hold it responsibly; we treat it with respect. And that there’s not any sort of confusion around the rules where we may be compelled to disclose the data to the government, and when there are rules around that, that it’s clear what they are and the interaction between the government and Google and the other companies as well. This is essential to make sure that the users have confidence in their ability to place and trust their data with us. The impact of the disclosures in June are manifest. We can see as an academic matter or as an anecdotal matter that customers who may be considering using the rich services in the cloud are nervous to do so now as a result of those disclosures. This means that companies – some of them abroad and some in the United States – may not be taking advantage of the efficiencies and security benefits and all the other advantages of the cloud as a result of this. Terrible result and one that we need to address. Transparency among other steps would help restore the confidence in the cloud and American companies.

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