Privacy Advisor

Senate Committee Presses NSA; Agencies Willing to Re-evaluate Program

August 1, 2013

By Jedidiah Bracy, CIPP/US, CIPP/E

At a Senate Judiciary Committee hearing on July 31, senators from both sides of the aisle pressed representatives from the National Security Agency (NSA), Office of the Director of National Intelligence (ODNI), Federal Bureau of Investigation and Justice Department over surveillance programs, particularly the provision allowing for the dragnet collection of Americans’ phone metadata.

The hearing came a week after the House of Representatives nearly passed an amendment that would have ended the NSA’s phone record collection program.

Formerly classified 2009 briefing document on the NSA’s metadata collection program.

Committee Chairman Patrick Leahy (D-VT), on several occasions, expressed deep concern about the amount of Americans’ data being collected under Section 215. Leahy said the success stories of thwarting terrorism through the programs were inflated by the Obama administration and carried with them “massive privacy implications.” He also warned, “If this program is not effective, it has to end. So far, I’m not convinced by what I’ve seen.” Leahy recently introduced reforms to the programs under the FISA Accountability and Privacy Protection Act of 2013.

Just prior to the hearing, three previously classified documents were released by the Obama administration. All three relate to the NSA’s collection of phone records under Section 215 and include reports to Congress on the collection of metadata in 2009 and again in 2011 and a Foreign Intelligence Surveillance Court (FISC) ruling requiring a Verizon subsidiary to provide the agency with access to records.

Formerly classified 2011 briefing document on the NSA’s metadata collection program.

Sens. Al Franken (D-MN) and Sheldon Whitehouse (D-RI) criticized the agencies for a lack of transparency with the American people. “I don’t want a situation where government is transparent when it’s convenient,” said Franken, who was also critical of the ODNI for declassifying the three documents only minutes prior to the hearing. “Ad hoc transparency doesn’t engender trust.”

Whitehouse said he hopes “the executive branch can take a lesson from this experience of over-classification” as it allows one side to “control the debate.” It took a whistleblower to precipitate the debate, and as a result, Whitehouse said, “The rumor was all the way across town before the truth got its boots on.”

The panel included Deputy Attorney General James Cole, who said, “It’s worth having a debate about where we’re going to strike that balance between security and privacy. It’s a balance worth talking about.” The ODNI’s Robert S. Litt said the Obama administration was “open to reevaluating this program” but warned that there “is a cost to this public debate” where capabilities are lost. Since appearing before a House panel two weeks ago, the panelists seemed more open to debate around the surveillance programs.

Formerly classified FISA Court ruling supporting order to require a Verizon subsidiary to turn over metadata.

As a backdrop to the hearings, The Guardian released slides of a 2008 NSA program called XKeyscore—leaked by Edward Snowden—that provides analysts with virtually unfettered access to Internet activity around the globe. Speaking at a Black Hat convention on July 31 in Las Vegas, NV, NSA Director Keith Alexander defended the agency’s surveillance programs to an often-hostile crowd. “We have tremendous oversight over these programs,” he said. “We can audit the actions of our people 100 percent, and we do that.” He also said his staff cannot monitor all U.S. Internet activity. “The fact is,” he said, “they don’t.”

Several senators at the hearing announced they were introducing legislation to address concerns about the collection of millions of Americans’ phone metadata and the operations of the FISC.

Sen. Richard Blumenthal (D-CT) said he was introducing two bills, including a new procedure for FISC judge appointments and for instituting a FISC adversary, or independent counsel, to advocate for privacy and civil liberties during FISA court hearings—“courts thrive on the clash of views,” he noted. This is an idea that found great purchase during the PCLOB’s recent hearings on Section 215 and Section 702. Currently, the chief justice of the Supreme Court appoints FISA court judges, but Blumenthal’s bill would involve circuit court judges in the appointment process.

Sen. Diane Feinstein (D-CA), who is chair of the Senate Intelligence Committee and a supporter of strong U.S. surveillance, also announced she was introducing an authorization bill. The bill would require a release of statistics showing how many phone records were accessed, how many Americans were affected and how many times a company was required to provide the government with access under Section 215. Feinstein’s bill would also declassify FISA court opinions and reports on American citizens targeted for surveillance under FISA, which would “be made available in a secure location to every member of Congress,” and limit NSA data retention of phone records from five years to two.

“There are things that can be done to increase transparency,” she said, adding, “We would place this nation in jeopardy if we terminated these programs.”

Franken said he would work with Feinstein to craft legislation to increase transparency. “I think we should create a strong, permanent set of public reporting requirements that will empower the pubic to reach their own conclusions about the merits of these programs,” said Franken.

Read more by Jedidiah Bracy:
Committee Hears Testimony, Patriot Act Must Change
FTC, Irish DPA Release Mutual Enforcement Agreement
Privacy Board To Host Workshop on NSA Surveillance Programs
Are Multiple Mobile Privacy Guidelines Helping or Hurting the Mobile Ecosystem?