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

Partial transcript of Sen. Jeff Flake (R-Arizona) 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. Jeff Flake (R-Arizona):
…Mr. Salgado, you heard the testimony previously and my question as to whether or not some of the companies would be concerned or would share the concern that – the increased privacy concerns were this additional information to be gathered. Tell me why that doesn’t make sense. Tell me why you disagree.

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
Senator, I assume you’re referring to the U.S. persons step within the government disclosure portion. I don’t think – I think I share Mr. [Richard] Litt’s view that it’s unlikely that this would result in any more disclosures by companies to be able to make this evaluation that would be required of the government.

Sen. Jeff Flake (R-Arizona):
So they have the data, they could simply drill down on their own data without asking you for additional information?

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
I think that’s what I would anticipate, sir.

Sen. Jeff Flake (R-Arizona):
But revealing more information about – drilling down on U.S. persons doesn’t concern you as a company to have that additional information out there as required in this legislation?

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
I think that as we look at the methods by which the intelligence community may address the U.S. persons estimation, it makes sense to look at that. How do you minimize those additional steps and do they in fact require intrusions where there weren’t any before absent that obligation?

Sen. Jeff Flake (R-Arizona):
Mr. Bankston, do you have any thoughts on that? Overall – the general privacy concerns that they raised, that the additional concerns about privacy that would raised by drilling down on this information?

Kevin Bankston, Director, Free Expression Project at the Center for Democracy and Technology:
I think it’s important to note that to some extent privacy is invaded and has been invaded when the government collects the data itself. And to say that we cannot make a meaningful estimate of how many people’s data we have collected and how many U.S. person’s data we have collected because to look at some small selection of it to make that estimate would harm privacy, it just doesn’t make sense to me. The privacy to some great extent has already been violated; we’re just now trying to get a gauge of how many people’s privacy has been violated.

Sen. Jeff Flake (R-Arizona):
Mr. Salgado, you mentioned the prospect of different countries walling off their data or making an attempt to. How real of a concern, how timely of a concern is that? Have we seen such moves being taken by certain countries? Can you explain a little about that?

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
Yes, Senator, we have so it’s a very real threat. We’ve seen proposed legislation in jurisdictions to do just this. We’ve seen it in several flavors. There’s the possibility of requiring data location. So companies requiring to exclusively store data within a jurisdiction. You see affirmative laws that are often referred to as blocking statutes, which would say companies that operate in this jurisdiction are not allowed to cooperate with U.S. authorities around data disclosures. So you see different flavors of these things. They all tend to start to create a network structure – an Internet structure – that is based on political boundaries, and the idea of a global Internet quickly breaks down.

Sen. Jeff Flake (R-Arizona):
Well, thank you. That’s a concern that I think a lot of us have, that this free flow across borders has been so healthy and been so necessary for the growth of this kind of communication would be disrupted.

Mr. Rosenzweig, let me just get a general answer from you on this: Is the value of legislation like this – I can see the value in a lot of the companies to be able to explain more to their users, give better comfort there. Is there as much value in this being an additional check on government not to go too far because they have to reveal this information? What is the greater value in legislation like this or is it shared that way?

Paul Rosenzweig, Founder of Red Branch Consulting:
I think the first principal value of the legislation is the one that Sen. [Al] Franken expressed, which would be to statutorily mandate that which is now merely voluntary and an act of grace by the executive branch. So I think that that…institutionalizing that is a positive value. I think that in general legislation that requires the government to explain itself is a positive value as well, everything from FOIA to Inspectors General statutes.

My concern, in particular, would be to ensure that the disclosure requirements don’t wind up disrupting the existence of…undisclosed programs that are of value to us. And that I think I can’t answer in a generalized manner; I think it’s a very case-by-case specific manner. I think that it’s probably not a decision best left to the executive branch alone. I think it’s a decision left to the executive branch in a classified discussion with this body and with the House of Representatives. It, by its nature, cannot be a discussion that at least the first instance involve the American people because that by its nature terminates the discussion itself.

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