Franken pushes surveillance transparency bill as Congress weighs its options

WASHINGTON — Months after massive government surveillance programs came to light, Minnesota Sen. Al Franken said we still don’t know enough about how much data national security entities are collecting in their counter-terrorism efforts.

Franken has introduced a bill to provide more transparency to the system, and convened the year’s first hearing of his technology privacy subcommittee on Wednesday to hear from administration officials, privacy groups and the tech industry on the matter.

After heavy backlash following revelations about American surveillance programs over the summer, the federal government has begun releasing a little bit of information about those programs, but it’s been a slow process and privacy advocates say they haven’t gone far enough. Franken said the government has been working in “good faith,” but said something needs to be codified into law to maintain proper transparency standards going forward.

“There’s nothing in the law about this, there’s nothing permanent,” he said.

Government says it’s doing enough

Franken’s bill, formally titled the “Surveillance Transparency Act,” would take two main steps to provide more oversight of the government’s spying programs:

• It would require officials to disclose how many people are targets of government surveillance programs, an estimate how many of them are Americans, and how many people’s communications the government actually collects under the Federal Intelligence Surveillance Act (FISA).
• And it would lift a gag order preventing communication or technology companies from discussing the amount of information they give the government under FISA. Companies are currently unable to acknowledge what’s been, by now, widely reported, that the government has asked them to provide information from their users under federal intelligence laws. (A Google lawyer, under direct questioning Wednesday, said he was barred from providing a number.)

“Americans still have no way of knowing whether the government is striking the right balance between privacy and security, or whether their privacy is being violated,” Franken said at the hearing. “There needs to be more transparency.”

The bill has support from both privacy advocates and the communications industry, which says it has a financial stake in releasing their government surveillance orders. Google’s law enforcement and information security director Richard Salgado, for example, said tech companies have heard from potential users who are concerned about the security of the private data they provide.

Government representatives appearing before Franken’s committee weren’t hostile to the idea behind his bill, but they said they’ve already taken steps to provide more information about the programs. Office of National Intelligence general counsel Robert Litt said the government is planning to release the number of its various FISA orders and the number of individuals targeted by them. Companies will also be able to release the number of “law enforcement and national security legal demands made each year,” though not specifically the orders they received under FISA.

But Litt said the bill raises some “operational or practical problems,” saying the government simply doesn’t have the technical power to identify how many individuals’ communications are picked up by surveillance programs even if they aren’t the target of an investigation. Privacy advocates contend the government has the ability to do just that.

As for allowing communications companies to discuss their FISA involvement, Litt said any specific disclosures about the prevalence of FISA orders “could provide our adversaries a detailed roadmap of which providers or which platforms to avoid in order to escape surveillance” because it would show which companies provide the most information to the government.

Franken dismissed that concern. He compared his bill’s FISA disclosure standards to an annual report from the Department of Justice on its wiretapping practices. In New York City, he said, the report showed prosecutors secured 48 wiretap orders in Manhattan last year, but only five in Brooklyn.

“Nobody is arguing that criminals in Manhattan are reading the wiretap report and fleeing to Brooklyn because they’re less likely to get their phones tapped there,” he said.

After the meeting, Franken said he was skeptical about the government’s opposition to the bill.

“I didn’t think these objections canceled out the positive impact of transparency,” he said.

Where Franken’s bill fits in

Franken’s bill has won bipartisan support and Judiciary Committee members, including its chairman, Sen. Patrick Leahy of Vermont, were quick to cheer it Wednesday.

It’s one of a dozen or so bills introduced so far this year to respond to the steady stream of spying concerns caused by leaker Edward Snowden, who first reveled the extent of the government’s surveillance programs this summer. The technology industry has lined up to support several of the bills, especially those related to transparency efforts.

Kevin Bankston, the director of the Free Expression Project at the Center for Democracy and Technology, said there are two main bills his group is watching at this point:

• The first, from Leahy, would completely overhaul the NSA surveillance program, ending the practice of so-called “bulk collection” of communication records by requiring the government to justify the records’ relevance to terror investigations. Privacy groups like the bill and it’s received bipartisan support on the hill. (Wisconsin Republican James Sensenbrenner, who wrote the Patriot Act, introduced the House version.) Bankston called the bill a “collection of very meaningful reforms,” and the tech industry is generally supportive as well.
• The other bill, from Sen. Diane Feinstein, has received far fewer plaudits. Her bill would codify the NSA’s surveillance programs but attach some transparency provisions to it. Privacy and tech groups from the ACLU to the Electronic Frontier Foundation have slammed the bill, but the Senate Intelligence Committee approved it last month.  

(The Washington Post put together a good story looking at the differences between these approaches, either signing off on the spying program or undoing it.)

There is a smattering of other surveillance bills, on everything from improved transparency to creating an office of advocates to challenge the government before the FISA court.

EFF policy analyst Mark Jaycox said lawmakers should investigate specifically what information the government is able to collect before agreeing on a final reform bill, though he said they should look to end the program that caused brought about this controversy in the first place: the NSA’s collection of cell phone metadata.

“A full scale congressional investigation should be started immediately to gain a grasp of the laws being used and information being collected,” he said in an email. “Congress must ensure that it has all the information before it attempts to legislate solutions.” 

As to if it will happen, privacy advocates are hopeful. Jaycox predicted Congress will pass something, “but it will be a matter of how strong it is.” Bankston said he thinks the Snowden revelations were a “paradigm shift” and lawmakers are rearing for reform more than at any time in at least a decade.

“I think this [issue] is not something that’s going to pass,” he said. “I think this is something we’re going to be grappling with for years.”

Devin Henry can be reached at dhenry@minnpost.com. Follow him on Twitter: @dhenry