tv Key Capitol Hill Hearings CSPAN November 16, 2013 1:59am-2:30am EST
and we surrendered the conditions that we evolved under. minnesota senator al franken has introduced a bill that would require the nsa to disclose more information about its collection of phone records and other data. he chaired a hearing earlier this week with government officials who expressed concerns about the legislation and a google executive who favors the bill.
>> this hearing will come to order. welcome to the senate judiciary subcommittee on privacy, technology and the law. the subject of this hearing is the surveillance transparency act of 2013. i'm proud to say that two weeks ago i reintroduced this bill with the support of my friend and colleague dean haller of nevada, who we'll be be hearing from in just a moment. this bill is urgently necessary. americans understand that we need to give due weight to privacy on one hand and national security on the other. but americans are also naturally suspicious of executive power and when the government does things secretly, americans tend to think that power is being abused. this is exactly the place where congressional oversight is useful and necessary. for months now there has been a
steady stream of news stories about the nsa surveillance programs and yet right now by law americans cannot get really the most basic information about what's going on with these progra programs. consider this. it's been months since the prison program and the the telephone call records program were revealed to the public and yet to this day americans don't know the actual people whose information has been collected under those programs. they don't know how many of those people are american. they have no way of knowing how many of these americans have had their information actually seen by government officials as opposed to just being held in a database. the administration has taken good steps and good faith to address this problem, but i'm afraid that these steps are too little and that they are not permanent. and so americans still have no
way of knowing whether the government is striking the right balance between privacy or security or whether their privacy is being violated. i believe there needs to be more transparency. i have written a bipartisan bill to address this that will require the nsa disclose to the public how many people are having their data collected under each key foreign intelligence authority. it would make the nsa estimate how many of those people are american citizens or green card holders and how many of those americans have had their information actually looked at by government agents. my bill would also lift the gag orders on internet and phone companies so that those companies can tell americans general information about the numbers of orders they are getting under each key authority and the numbers of users whose information has been produced in
response to those orders. right now as a result of those gags, many people think that american internet companies are giving up far more information to the government than they likely are. the information technology and innovation foundation estimates that american cloud computing companies could lose 22 to $35 billion in the next three years because of concerns about the involvement with surveillance programs. the analytics puts potential losses much higher and around $180 billion. a few companies have litigated and secured permission to publish limited statistics about the request that they get, but this is too little and it's not permanent. my bill would permanently ensure
that the american people have the information they need to reach an informed opinion about government surveillance and it would protect american companies losing business from misconcepti misconceptions about its role in these programs. i'm pleased to say this bill is the leading transparency bill in the proposal in the senate supported by a strong coalition of tech companies and civil liberties group. the version as introduced gained the support of 12 senators including the chairman of the full judiciary committee patrick leahy. i anticipate that they soon will be adding our original supporters on to the new bipartisan bill. hopefully with some additional support as well. the purpose of this hearing is to make the case for this bill and to improve it by get iting e feedback of top experts in the administration, privacy group. s and in. the private sector. i have specifically asked the office of the director of
national intelligence and the department of justice to provide candid comments on this bill, especially any concerns that they have. i have already added provisions in the bill o protect national security, and want to know any other further concerns they have. in some cases disagree with them in others. in those cases, i want to have an open exchange about the disagreements. that said, i want it to be clear at the outset that i have the jut most respect for the men and women of our intelligence community. i think they are patriots, and i think they have and do save lives. i look forward to starting this conversation. with that, i will turn to our ranking member senator flake. >> thank you, senator franken. appreciate those who will testify today. this is the first subcommittee hearing we have had. i suppose that given the rate at
which technology develops this will be an important subcommittee as we go along to try to strike that balance we talked about between privacy issues and between transparency and national security. i look forward to this hearing to see if we have -- if this legislation, if this bill before us actually strikes that balance and i come to this hearing with an open mind and realize that this is really a struggle that congress goes through continually. i was around when the patriot act passed. there were some issues with that. we authorize d it, but then som studied a law that the provisions we needed to deal with later and dealt with those later. we were continually with technology developing continually trying to strike the right balance. the security leaks that we have had the past couple years and certainly in the past couple
months have undermined the confidence that the public has in what we are doing here is damaging. so i look forward to more transparency whether in this legislation or some version of it or in some other way to make sure that people are confident that their public officials have transparency in mind and the best interest. so with that, i look forward to hearing the testimony. >> thank you, senator flake. this is the first hearing of this subcommittee in this congress. and i'm happy to have you as a new ranking member as this subcommittee. it's now my pleasure to introduce my friend and colleague, the senator from nevada, senator hellor. two weeks ago we introduced an improved version of this bill. i think that his support for this bill and his presence here speaks to the fact that
transparency is a bipartisan iss issue. some of the best work in the judiciary committee on the issue of transparency has come from our chairman and others on our side working with folks like the ranking member senator grassley and senator cornyn and many others. this bill is an effort to continue that tradition. senator hellor? >> thank you, mr. chairman. and to senator flake, i'm real pleased to be here today. i'd like to thank you also for inviting me to testify. i want to thank you for holding this hearing. and mr. chairman, i want to thank you for your leadership that you bring to the table on transparency to both collection programs run by the nsa. this is a strong bill rooted in the belief that nevadaens, minnesotans and all americans should be provided access to reports that explain the personal communication records that the government has collected and how many american. s have had their information
caught up in that collection. by now most people are aware of the collection practices by the federal government that are authorized by sections of the patriot act and sections of the fisa amendments act. i'm confident the full judiciary committee will have a robust debate on the collection practices and whether or not this program should continue. i believe that the collection program mostly authorized under section 215 of the patriot act should come to an end. subsequently, i agreed to join with chairman leahy as a principle sponsor with senator lee and durbin on the freedom act. while there's disagreement on whether this program should continue, i'm confident all of us can agree that these programs deserve more transparency. this is why i join senator frank franken to introduce a transparency act of 2013.
this legislation would call for reports from the attorney general detailing the request for information authorized under the patriot act and the fisa amendments act. the reports would detail the total number of people whose information has been collected under these programs, how many americans have had their information collected, and also how many americans actually had had their information looked at by the nsa. further more, this legislation would allow telephone and internet companies to tell consumers basic information regarding the fisa court orders they receive is the number of users whose information is turned over. the principles outlined in this bill to increase transparency for americans and private companies would clear up a tremendous amount of confusion that exists with these programs. that is why transparency reform is included in multiple nsa reform proposals including the intelligence oversight and reform act introduced by senator
widen, the usa freedom act by chairman leahy and myself, and the improvement act introduced by senator feinstein. mr. chairman, while positions on the collection program may differ, many of us agree on the need for more transparency. that is why i urge support for the franken-heller legislation before this subcommittee today. we're talking about millions of calls collected and stored by the nsa. americans should have access to some basic information regarding the amount of data collected and what is actually being analyzed so that my constituents, your constituents can determine for themselves whether they believe this program is worthy to continue or not. with that, thank you for the opportunity to have me testify. mr. chairman, thank you very much for your leadership on this issue. >> thank you for yours, senator heller. i'm looking forward to working together with you on this as we
go through this process. you're excused. and your panel is adjourned. i'd now like to introduce our second panel of witnesses. robert lit is the general council of the office of director of national intelligence. he was confirmed by the senate by unanimous consent in 2009 for joining. he was a partner with the law firm of arnold and porter from 1994 to 1999. mr. lit worked in the department of justice where he served as deputy assistant to attorney general in the criminal division and then principle associate attorney general. brad wigman is a deputy assistant attorney general for national security at the department of justice. he has served as a career government attorney for the past 17 years including positions at the state department, the department of defense, and the national security council. his government service has focused on national security and
international law including counterterrorism, intelligence activities and counterproliferation. welco welcome, gentlemen. doj have submitted joint written testimony. you each have five minutes for any opening remarks that you'd like to make. >> thank you, mr. chairman. ranking member flake, senator blumenthal, thank you for the opportunity to appear before you today to discuss this very important issue of how best to inform the public about sensitive intelligence activities consistent with the needs of national security. i want to say that i appreciate the support that you have shown for the intelligence community over the last few months many their activities. the unauthorized disclosures have led to a public dialogue about activities particularly those conducted under the surveillance act.
it's critical to ensure that dialogue is grounded in fact rather han misconceptions. it's important to help the public understand how the intelligence community uses the legal authorities that congress has provided it to gather foreign intelligence and the vigorous oversight of those activities to ensure that they come ply with the law. as you know, the president directed the intelligence community to make as much information as possible about certain intelligence programs that were the subject of those unauthorized disclosures available to the public consistent with the need to protect national security and methods. since then they have released thousands of pages of documents and we're continuing to review documents to release more of them. these documents demonstrate these programs are authorized by law and subject to vigorous oversight by all three branches of government. it's important to emphasize that
this was properly classified. it's being declassified now because in the present circumstances, the public interest in declassification outweighs the national security concerns that require classification. we still have to take those concerns into account. in addition to declassifying documents, we have also taken significant steps to allow the public to know the extent to which we use the authority under fisa. i agree with both of you and senator heller that it is appropriate to find ways to inform the public consistent with national security. specifically as we set out in more detail in our written statement for the record, the government is going to release on an annual basis the total number of orders issued and the total number of targets affected by those orders. moreover, recognizing that it's important for the companies to be able to reassure their customers about how often or how rarely the companies actually provide information about their customers to the government.
we have agreed to report the total number of law enforcement and national security legal demands they receive each year and the number of accounts affected by those orders. we believe this approach strikes the proper balance between providing information about the use of the legal authorities and protecting the important collection capabilities and i'd be glad to discuss that with you in more detail as we move ahead. turning to the surveillance transparency act of 2013, which you co-sponsored, we reviewed the bill and share the goal of providing the public greater insight into authority. we appreciate the effort that you made in this bill to try to accommodate transparency and national security. we have had good discussions with your staff about that bill. many of the bills are we do continue to have concerns that some of the provisions raise practical problems.
these concerns are summarized -- are set out in more detail in the written statement for the record. i'll just summarize here and now that they fall into two broad categories. while we belief it's possible and appropriate to reveal information about the number of targets of surveillance, counting the number of persons or persons whose communications are collected even if they are not the targets is operationally very difficult, at least without an extraordinary investment in resources and maybe not even then. for example, it's often not possible to determine whether a person who receives an e-mail is a u.s. person. the e-mail address says nothing about citizenship for nationality of the person. and even in cases where we would be able to get the information that would allow us to make the determination of whether someone is a u.s. person, doing the research and collecting that information would proversely require a greater invasion of that person's privacy that would otherwise occur. it's for these reasons that the inspectors general of the
national security agency and of the intelligence community have stated in letters to the congress that this information can be k not be obtained. second we have significant concerns with allowing individual companies to report information about the number of orders to produce the data they receive under particular provisions of the law. providing that information in that level of detail could provide our adversaries a road map of which providers and platforms to avoid in order to escape surveillancsurveillance. we believe the reporting we have agreed to provides the right balance between transparency and national security. mr. chairman, i want to emphasize our intention to work with the congress and this committee to ensure the maximum possible transparency about our intelligence activities that's consistent with national security. the president is committed to this, the director of national intelligence is committed to thrks the attorney general is committed to this, general alexander is committed to this. we're open to considering any proposals so long as they don't
compromise our ability to protect this nation and our allies. we look forward to working with you in this regard. thank you. >> thank you. >> thank you, mr. chairman. thank you for having me today. i don't want to replicate what was just explained so i don't want to waste the committee's time, but we at the department of justice very much agree with what bob has just explained. we very much support the efforts that the committee is engaged in now. we share the goals of the bill that you have prepared in terms of increasing transparency. we have some technical concerns about how those proposals can be implemented that we're happy to discuss today. i guess i would just say a couple other things. one is that i think this is an area where the details very much matter. we want to -- we support transparency, but we want to do so in a way that's consistent in our national security needs. you have seen a number of
documents declassified and i'm sure from the outside it it looks very slow. that's because they involve a lot of information and it it takes time to determine what safely can be revealed and what cannot. there are a lot of equities and components of the intelligence community that have a take in the information in play. so our transparency efforts are a work in progress. we continue to work on them. we're trying to do so in a careful and deliberate way. i don't doubt to the outsider it looks as if it's slow, but that's because we're trying to protect national security while promoting rans parent si goals. with the other thing i would say in addition is to contrast the u.s. response to these disclosures to some of those foreign governments. we have tried to be more transparent. that's not always been the case with other governments. so i do think we're working in
good faith to try to be more open about our intelligence collection activities and we're happy to work with the committee to continue to promote that goal. that's all i have. >> thank you, mr. wigman. thank you, both. as i said, you submitted joint testimony, and that will be part of the record. . so i appreciate your not taking every minute of your time here. i will say about the disclosures. i have said that these have been in good faith. it's just that there's nothing in law about them. there's nothing permanent about what you're doing. we're trying to create a framework where people have more confidence and understanding or can decide for themselves whether they should have confidence. mr. lit, you indicated that odni may lack the technical ability to estimate the number of u.s. citizens and permanent residents
whose information has been collected under the different surveillance authorities. i find this troubling. we give broad legal power to conduct surveillance precisely because that is supposed to be targeted at foreign adversaries, not at americans. many of the broadest laws we have written like section 702 of fisa says that you can only use this law only to target foreign people. you cannot use it to target u.s. persons. mr. lit, isn't it a bad thing that nsa doesn't even have a rough sense of how many americans have had their information collected under a law section 702 that explicitly prohibits targeting americans. >>. so i have to preface everything here by emphasizing that i'm a
lawyer, not an engineer or computer scientist. so everything i say here gets filtered through that prism. >> an engineer or computer scientist, we'd have you working on something else. >> i think it's important to differentiate between the concept of who is targeted for collection and whose collections are incidentally collected. nsa because of the legal requirement under section 702 that nsa only target nonu.s. persons, nsa does the research necessary when they have a target to determine whether that person is a u.s. citizen. they need to make that determination. that's a very, very different process from saying we're going to look at all of the communications that are collected and we're going to evaluate every single party to every one o of those communications to determine whether or not that's a u.s. person. so they do have the ability to
try to make the determination as to whether somebody is or is not a u.s. person. but that's a different proposition. >> i think in estimation, the method that is used in comparable circumstances before the fisa court, i'd like to add to the record two pieces of testimony to that to me sugs that the nsa could be able to estimate how many americans have had their information collected under foreign intelligence authorities. the first is from general alexander. he testified in september that the employees over a thousand mathematicians more than any other employer in the united states. more than every other university in minnesota, more than m.i.t. or cal tech.
a princeton professor and technologist for the federal trade commission said, e yes, the government has the ability to give a rough estimate of the number of american social securitys and permanent resid t residents whose metadata and content has been collected. let's move on to the disclosure by the companies. mr. lit, in your testimony you warn that, quote, more detail company by company dise closure threatens harm to national security by providing a road map for our adversaries on the government surveillance capables. this concern makes sense. but i have difficulty reconci reconciling your testimony with the government's actions with respect to major companies like google. the government lets google publish the number of national security letters it receives each year and the number of users affected. two months ago, michael hayden, the former director of nsa and
cia gave a speech in which he said, quote, gmail is the preferred internet service provider of terrorists worldwide. that's verbatim quote. it seems to me if the former head of the cia and the nsa doesn't think it's a problem to let everyone know that terrorists just love gmail, why do you think a company by company exposure threatens national security? >> a couple of thoughts on that. to my knowledge, general hayden didn't talk to us before making those statements. i don't know if we authorized that statement to be made. the point is that if we allow the companies on an annual basis
to publish these statistics, it it's going to simply provide additional information out there as new companies come online and pop up you may have a company that for a period of years shows no orders and then all of a sudden starts showing orders and that conveys a message that says, we have the capability to collect this now. the more detail we provide out there and the more we break this down by authorities and companies, the more easy it becomes for our adversaries to know where to talk and where not to talk. what we have agreed to allow the companies to do is to report the aggregate number of times in which they provide information to the government and that seems to me is an adequate way of providing the public the information they need to know about the minuscule proportion of times in which that actually happens and breaking it down nurt in our view