Senators Look to Make U.S. Surveillance More Transparent
With U.S. intelligence and Department of Justice officials looking on, senators on Wednesday laid out plans to make the government's data-gathering efforts more transparent.
Appearing at a Senate Judiciary Committee hearing on U.S. surveillance, Democratic Senators Dianne Feinstein of California and Al Franken of Minnesota said they are working on bills that would help address privacy concerns in the wake of leaks last month about the National Security Agency's collection of data from phone and email users. The measures would follow the FISA Accountability and Privacy Protection Act that Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced in June to require more public reporting of government surveillance efforts, among other goals.
Feinstein, chairwoman of the Senate Intelligence Committee, said she supports surveillance programs that allow the government to sweep up user data as part of antiterrorism efforts. But Congress can act to bring greater openness to the government's surveillance efforts, she said.
"I think, based on what I know, [terrorists] will come after us, and I think we need to prevent an attack, wherever we can, from happening," Feinstein said. "That doesn't mean we can't make some changes."
Her proposals, which she outlined in a Washington Post op-ed published Tuesday, include the annual publication of how many U.S. citizens' phone numbers are submitted as queries to the NSA database of phone records, how many of those numbers the agency are referred to the FBI, the number of warrants the FBI secured to gather the content of any call, and how often companies provided user data to the government.
Franken, chairman of the Senate Judiciary Subcommittee on Privacy, Technology, and the Law, said he plans to introduce on Thursday a bill that has at least some of Feinstein's ideas. The inability of U.S. citizens to know if the government is properly balancing national security and privacy needs fixing, he said.
"I think that's bad for privacy and bad for democracy," Franken said.
The tech industry also is pushing for greater transparency after The Post and Britain's Guardian newspaper published stories in June reporting that the government has far-reaching access into user information held by Apple Inc., Facebook Inc., Google Inc., Microsoft Corp., Yahoo! Inc., and other companies.
The Justice Department this week said the government is continuing its declassification review of more than 50 court documents in Yahoo!’s legal fight in the Foreign Intelligence Surveillance Court. Yahoo!, represented by Marc Zwillinger of Washington’s ZwillGen, petitioned the court [PDF] in June to publish a ruling from 2008.
Lawyers for Google, represented by Perkins Coie, and Microsoft, represented by Covington & Burling, have also petitioned the court to allow the companies to publish, in greater detail, information about government demands for subscriber information. Those cases are pending in the FISA court. The government is expected to respond to the petitions early next week.
The Obama administration on Wednesday also declassified an April 2013 FISA court “primary order” that granted the government wide-ranging authority to collect customer “metadata” for all Verizon Communications Inc. phone calls. The Office of the Director of National Intelligence said in a statement that it “determined that the release of these documents is in the public interest.”
Robert Litt, general counsel of the Office of the Director of National Intelligence, said at the Senate hearing that the Obama administration is willing to work with Congress on efforts to improve transparency on data gathering.
"We are open to reevaluating this program in ways that can perhaps provide greater confidence and public trust that this is in fact a program that achieves both privacy protections and national security," said Litt, who was joined at the hearing by Deputy Attorney General James Cole, NSA Deputy Director John Inglis and FBI Deputy Director Sean Joyce.
But as Congress debated the scope of government surveillance, a federal appellate court opinion added some fuel to the dialogue.
A divided panel of the U.S. Court of Appeals for the Fifth Circuit on July 30 concluded that federal agents do not need to obtain a warrant to retrieve historical cell location data from a wireless provider. Rather, the panel said, a court order under the Stored Communications Act suffices. The Fifth Circuit majority said the records—including the time and place of a phone call—are business documents that are created for and controlled by telecommunications companies.
In a blog post Wednesday, Electronic Frontier Foundation attorney Hanni Fakhoury, who participated in the litigation in the appeals court, called the opinion “misguided.”
“The Fifth Circuit reversed the privacy-protective lower court opinions and instead ruled the government did not need a search warrant to access historical cell site records,” Fakhoury wrote. “That's because the court focused not on what the data revealed—a person's location over an extended period of time—but rather on who owned and generated that data: the cell phone providers.”
Mike Scarcella contributed to this report.