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

Partial transcript of Sen. Patrick Leahy’s (D-Vermont) 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. Patrick Leahy (D-Vermont):
…I think more and more people agree or should agree that we need additional transparency about our government surveillance activity…If we don’t, we’re not going to restore public confidence.

I think Sen. [Al] Franken’s work to build consensus around transparency legislation deserves praise.

I’m glad that Google and other tech companies are [supporting] that bill. I think the tech industry realized we need more than just transparency; we need some substantive reforms.

Some of the major tech companies – I want to make sure I have them all right – Google, Microsoft, Yahoo, Apple, Facebook, AOL, and LinkedIn – signed a letter to me supporting greater transparency. They want substantial enhancement to privacy protections, oversight, accountability matters. And I know Mr. Salgado knows that letter.

I recently introduced the comprehensive surveillance reform bill – it’s bipartisan – the USA Freedom Act, and I appreciate these companies’ supporting stronger FISA [reform].

Mr. Salgado, let me ask you: Is just enhancing transparency, is that going to be enough to bring back global confidence in American technology companies? Do we need to do more? If we don’t do more, is this going to affect U.S. businesses?

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
Thank you, Mr. Chairman. I think the – it’s an important step to have increased transparency but I do agree that more is needed than that. As you’ve noted, we’ve expressed our support for the legislation that you’ve offered. I think we need some reform that allows users and others to know that the intelligence community and its collection of data is done under law, that it’s rule-bound, that it’s narrowly tailored, that there is oversight, there is accountability for it. And of course, as we’ve been discussing today, that there is some transparency around it that can help bring some of the trust that all of this is happening.

Sen. Patrick Leahy (D-Vermont):
Aside from affecting the reputation of the United States, if we don’t do that, it’s going to affect businesses too, is it not?

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
Absolutely, Mr. Chairman. And in fact, we’ve already seen impacts on the businesses. We’ve – I think Chairman Franken cited a couple of studies in the opening statement that reflected some serious financial consequences. I think there’s real concern around the entire structure of the Internet over these revelations if this isn’t addressed correctly.

Sen. Patrick Leahy (D-Vermont):
Let me go a little bit on that. One of my biggest concerns about Section 215 phone records is the legal rationale and opinion has no limiting principle. If all our phone records are relevant to intelligence investigations, then why wouldn’t everything be considered relevant? And if that’s the case, are companies like yours concern that consumers would not trust that their data is safe from unwanted government intrusion? Does Google think about what that might do as far as cloud technologies is concerned?

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
That’s right, Mr. Chairman. The confusion that came out as a result of the June revelations and since then and additional stories, I think, have led to a real concern both inside the United States and outside of the United States about what it is that’s happening and what are the rules that govern it and what are the – what is the role of the FISA court, what are the decisions that are coming out of that court. All of those have played a role in the confusion and the need for some clarity.

Sen. Patrick Leahy (D-Vermont):
Well, especially when NSA handled things so carelessly they’d let a 29-year-old subcontractor walk off with all their secrets and so far as I know nobody has been even reprimanded for that. Mr. Bankston, what do you think?

Kevin Bankston, Director, Free Expression Project at the Center for Democracy and Technology:
Speaking generally, we think that transparency is critical to restoring trust to the U.S. Internet economy and in the U.S. government itself but that it alone is not sufficient and that indeed substantive reform is necessary. CDT supports the bill that you’ve introduced – USA Freedom Act. We thank you for it. We look forward to working with you and the committee as it moves forward.

Sen. Patrick Leahy (D-Vermont):
I’m worried about over-classification. I find oftentimes every administration has been guilty of this. It’s easier to classify a secret than to – classify a mistake rather than to trying to explain it. Let me ask Mr. Salgado: Are you permitted to tells us whether Google has received any FISA court orders?

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
I’m sorry, Mr. Chairman. I would have to decline that answer until the bill that we’re discussing today is passed.

Sen. Patrick Leahy (D-Vermont):
Is our country safer because you can’t answer the question?

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
I can’t imagine the country is safer as a result of that.

Sen. Patrick Leahy (D-Vermont):
Thank you. That answers my question.

And Mr. Bankston, a concern’s been raised that company-by-company report of FISA might tip off those we’re trying to track but there’s a lot of reporting available on criminal surveillance. Is national security really sufficiently different from criminal investigations that we have to have this kind of secrecy?

Kevin Bankston, Director, Free Expression Project at the Center for Democracy and Technology:
I don’t believe so, Chairman. No. In the criminal context, we are often investigating sophisticated organized criminals and in fact sometimes investigating terrorists. And yet, we have been able to publish and the U.S. government has been able to publish very detailed statistics about how the government is using its authorities, both the government as a whole and company-by-company, without any suggestion that that has harmed national security.

And I just want to take the moment to address this issue of lumping all of those authorities together. I think that combining numbers for targeted FISA intercepts with FISA pen registers with FISA orders for records with FISA warrants for stored communications with all the range of national security letters and then combining that with all federal, state and local law enforcement warrants, wiretaps, pen register, subpoenas and other court orders leads to such a useless number as to be actually detrimental. It’s like asking a doctor to attempt to diagnose a patient by looking at his shadow. Only the grossest, most obvious abuse – if even that – would be evident…

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