Privacy: Technology

My Senate Testimony -- The NSA and Transparency

By Paul Rosenzweig
Thursday, November 14, 2013, 5:43 PM

I testified on Wednesday before the Senate Judiciary Committee, Subcommittee on Privacy, Technology, and the Law.  The hearing was on the Surveillance Transparency Act of 2013 -- a proposal by Senator Franken to increase disclosure about NSA surveillance activities.  As Ritika has already noted, ODNI General Counsel Bob Litt was on the main panel, and warned about the risks of increased transparency.

My testimony, while generally supportive of transparency, expressed serious reservations about the way in which the draft bill was crafted.  In particular, I noted that:

[T]he bill seems to assume that all of the disclosures to be made will relate to formerly-covert programs that have already been illegally disclosed.  In other words, in calling for disclosures about the types of data collected and the frequency of computer-assisted queries, it appears to me that the bill operates from the unstated presumption that the only programs to which these might apply are the phone metadata; internet metadata; and PRISM/internet content programs already disclosed.

I am concerned that implicit assumption may unwarranted.  I don’t pretend to know the full scope and extent of covert collection programs currently being run under those legal authorities.  Indeed, to the extent they have not yet been illegally disclosed they are, by definition, outside my knowledge.  Perhaps none exists – but I don’t know that either.  And, perhaps (though I am skeptical) disclosures about numbers of applications and numbers of interceptees, as well as a break down based on the type of communication at issue, can be made without disclosing information that would allow one to infer the existence of a program that remains (and properly ought to remain) covert.  But I think it more likely that such disclosures might reveal heretofore classified programs, to the detriment of our nation’s security.