Policy & Law
In a hearing pushing forward legislation that would shed light on the NSA's collection of Americans' data, Senator Al Franken (D-MN) questioned national security officials on why intelligence agencies couldn't be more transparent about who they were collecting data from. "Many of the broadest laws of FISA, like section 702, explicitly say that you can only use it to target foreign people," Franken said. "Isn't it a bad thing that the NSA doesn't even have a rough sense of how many Americans have had their information collection under a law ... that explicitly prohibits targeting Americans?"
Franken's legislation would detail the breadth of NSA surveillance
Robert Litt, general council for the Office of the Director of National Intelligence, said that determining the exact number of Americans whose data is collected would actually be a larger invasion of privacy than any that might already be happening. According to Litt, determining this number would require NSA analysts to look further into data — such as an email address — than they normally would, thus bringing up more information about that person just to determine if they were an American. He also said finding a more exact number would be quite resource intensive for the agency.
Under Franken's proposed legislation, The Surveillance Transparency Act of 2013, the NSA would be required to publicly disclose how many people have their data collected by each major foreign intelligence gathering authority. It would also require the NSA to estimate how many of those people are American citizens and how many of those citizens had their data actually looked at by government agents — not just collected. The legislation would also allow phone and internet providers to disclose general information about the number of requests they receive from each authority, including how many results those requests turned up.
Litt argued that allowing US companies to disclose how many requests they receive would give terrorists an advantage. They'd be drawn to communicating through companies that receive no requests, he said, and would then move along when they see that the government has begun to monitor them.
"We've seen this movie before, and we know how it ends," Senator Mike Lee (R-UT) said at the hearing. "If you give the government too much power in regard to domestic surveillance, eventually it will be abused." Franken's legislation wouldn't create complete transparency, but it would reveal in much greater detail the breadth of the NSA's surveillance, particularly on American citizens. "We're trying to create a framework where people have a little more confidence, understanding," Franken said, adding that at least it would allow American citizens to "decide for themselves if they should have confidence."
Google severely criticized the lack of transparency
Google was also present at the hearing in support of Franken's transparency legislation. "The current lack of transparency about the nature of government surveillance in democratic countries ... undermines the freedoms most citizens cherish," Richard Salgado, Google's director of law enforcement and information security matters, said at the hearing. "It also has a negative impact on our economic growth and security and on the ultimate promise of the internet as a platform for openness and free expression." Several witnesses cited projections of tens or hundreds of billions of dollars of business lost over the next few years because of security concerns by American citizens and foreign governments and companies that may no longer wish to work with US internet companies.
Franken's bill is certain to face heated debate as it moves forward. "There is no question that the American people need to know more about these programs," Franken said. "There is no question about that. For democracy to work, its citizens have to have at least a basic amount of information about this surveillance… My bill will give the American people that transparency."
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