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

Partial transcript of Sen. Richard Blumenthal’s (D-Connecticut) 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. Richard Blumenthal (D-Connecticut):
…I was interested in a number of your points, particularly, Mr. Salgado that additional measures are necessary, especially in response to Chairman Leahy’s questions, to not only provide additional transparency but also assure that individual rights are protected. As you know, I proposed that there be a constitutional advocate to, in effect, provide some adversarial process within the FISA court. You know, as lawyers, courts make better decisions when more than one side is presented. Very few judges would permit a proceeding before them in which only one side is presented because they know that the core principle of our judicial system is that it is adversarial and that the truth emergences as differing points of view, factual, perspectives and evidence are presented. And so that is one area where I think that the system can be made more accountable, if not more transparent. And as well, disclosure of some of the rulings and opinions of the court – right now, it’s a secret court that operates in secret, making secret decisions and secret law. One of the few, if only, courts in the United States where there is any secret proceedings of this kind, making secret law.

So let me elicit your comments on those kinds of additional protections to our constitutional rights from the perspective that you all have raised about our need for credibility and trust internationally for this system. After all, the means of communication – the Internet – depend on international trust and credibility. Otherwise, it falls apart. So let me ask that somewhat open-ended question.

Richard Salgado, Director of Law Enforcement and Information Security Matters at Google:
Well, thank you, Senator. I’m happy to take the first swipe at that. There are number of proposals that are now being considered and that is a very good thing. The general principles that there needs to be accountability and transparency with some oversight and the rules are clear are addressed by the various bills. Certainly as an example, making sure that a court is reviewing applications for surveillance has an opportunity to hear different ideas, different sides, that makes perfect sense and it is certainly at the heart of most of the judicial proceedings that we have in the United States. So that’s something I think makes a good deal of sense as far as a structural change to the current arrangement under FISA and the obtaining FISA authorities. The same is true with understanding the interpretations of the law that the court applies to the different applications that come in. I think those are two good examples of the sorts of ideas that can help restore confidence that the system works.

Paul Rosenzweig, Founder of Red Branch Consulting:
I’m actually a fan of the idea of an advocate but for slightly different reasons than Mr. Salgado just said. The reason that we don’t have an advocate in the search warrant application situation, for example, which is an ex parte application or in a grand jury situation is because those decisions are subject to ex ante review in a criminal proceeding, where there is a defense attorney who presents an adversarial view on whether or not the issuance of the warrant was with probable cause or the grand jury subpoena was over-broad or things like that. We lack that systematic check in the intelligence context because, of course, intelligence surveillance rarely, if ever, results in a criminal prosecution in which that kind of adversarial process comes forward.

So to my mind, I would want to distinguish in allowing an advocate between those situations in which the FISA court were making some broad new systematic determination, an interpretation of law, likely interpretation that gave us the relevant decision in the Section 215 law. I’d like to distinguish that from what I would characterize – and I admit the line is hard to draw – of…applications of a settled law, where the value of an adversarial advocate would be much diminished and the procedural difficulties that would arise from it – the costs involved, the time delay – might very well be adverse to national security. So cabined in that way, I think that would be a perfectly fine idea.

And as for the public disclosure, I would offer the exact same answer I gave Sen. [Jeff] Flake in the other context, which is provided that we make sure that it doesn’t wind up with the adverse effect of disclosing undisclosed programs that are properly classified, that would be as well an advancement in our understanding. Again, I admit that’s a hard line to draw and probably in both instances the best answer would be to let the FISA court make that decision itself, to authorize the appointment of the advocate in situations where it wants to and to authorize affirmatively or to direct them to affirmatively to make public disclosures when they think the disclosure or opinion would not adversely affect national security interests.

Kevin Bankston, Director, Free Expression Project at the Center for Democracy and Technology:
The FISA court’s job used to be pretty straightforward. It was a pretty straightforward statute based on some pretty straightforward Fourth Amendment jurisprudence addressing some pretty straightforward technologies. Now we have the FISA court addressing an incredibly complex and broad statute in the form of the FISA Amendments Act. We have rapidly complexifying technological landscape and we have the FISA court rather than simply making magisterial decisions creating a body of common law on some of the hardest and most important Fourth Amendment questions of our time, sometimes in the face of what the court has described as misleading conduct by the lawyers in front of it. In that context, I do believe that it’s critically important not only to have greater transparency regarding the decisions made by the court but also to have an advocate in front of the court who is there to protect the people. And as such, CDT does support your legislation, Sen. Blumenthal, and are working with your staff and Chairman [Patrick] Leahy’s staff on the issues that that might bring to bear.


Learn More: