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Sens. Franken, Heller Press White House to Support Stronger Surveillance Transparency Measures

In Letter to President, Senators Reaffirm Need for Their Bipartisan Surveillance Transparency Bill

Tuesday, July 1, 2014

As the debate surrounding surveillance reform heats up, U.S. Sens. Al Franken (D-Minn.) and Dean Heller (R-Nev.) pressed the White House today to publicly support stronger transparency measures over key government surveillance programs.

With the Senate set to take up the USA FREEDOM Act in the near future, Sens. Franken and Heller called on President Obama to throw his support behind provisions similar to their bipartisan Surveillance Transparency Act. Their bill would help give the American people the information they need to make up their own minds about the nation's surveillance programs.

In a letter sent Tuesday, which you can read here, the Senators put heat on the President to support a number of critical transparency provisions from their bill. These provisions would force the government to release the number of Americans who have had their information not only collected under these surveillance programs, but also reviewed. They would also give companies greater flexibility to tell their customers approximately how many of them were caught up in government surveillance requests. The Senators noted that in the absence of these protections, the American people would be unable to verify that the President had in fact followed through on his commitment to end the bulk collection of Americans' information.

"We support your decision to end bulk collection of Americans' phone call records, along with prohibiting bulk collection under several other authorities," wrote Sens. Franken and Heller to President Obama. "But we fear that unless stronger transparency provisions are included in the USA FREEDOM Act, the American public will have no way to know if the government is following through on that decision." They continued: "Congress gave broad power to the intelligence community precisely because it was targeting our foreign enemies-not American citizens on American soil. When foreign intelligence powers are used to collect the information of American citizens, Americans deserve to know it. The transparency provisions in [our bill] make that happen."

Last Friday, the Obama Administration released a new report on surveillance programs that the Senators called insufficient. The report, issued by the Office of the Director of National Intelligence, releases the estimated number of "targets" affected by government surveillance in 2013 under different national security authorities. However, the report does not show the total number of people whose information is being collected by the government under these authorities, how many of these people are likely American, and how many of those Americans had their information reviewed by government officials. You can read more about Sens. Franken and Heller response to the report here.

Sens. Franken and Heller introduced the Surveillance Transparency Act in 2013 to expand and improve ongoing government reporting about programs under the PATRIOT Act and the Foreign Intelligence Surveillance Act that have been the subject of controversy. You can read more about it here. While both the House and Senate versions of the USA FREEDOM Act included transparency provisions modeled after Surveillance Transparency Act, many of these provisions were dropped in the run-up to the House's passage of the bill.

Sen. Franken, Chairman of the Judiciary Subcommittee on Privacy, Technology, and the Law, is a strong advocate of increased transparency in government surveillance programs. In 2011 and 2012, he cosponsored legislation to ensure greater oversight and transparency around federal surveillance programs. When these measures did not pass, Sen. Franken voted against reauthorizing key NSA surveillance programs created under the PATRIOT Act and the Foreign Intelligence Surveillance Amendments Act. Earlier this week, Sen. Franken came out in support of the USA FREEDOM Act, which is expected to come up for debate in the Senate in the near future. Sen. Heller was a lead Republican cosponsor of the USA FREEDOM Act when it was introduced last year.

You can read today's letter here or below.

July 1, 2014

Dear Mr. President:

We applaud last week's voluntary release by the Office of the Director of National Intelligence of some information about the use of national security authorities. This report is a start, but it does not provide nearly enough information to the American people.

We write to respectfully urge you to support stronger transparency provisions such as those included in our bill, the Surveillance Transparency Act (S. 1621), in the USA FREEDOM Act, which will soon be taken up in the Senate. We support your decision to end bulk collection of Americans' phone call records, along with prohibiting bulk collection under several other authorities. But we fear that unless stronger transparency provisions are included in the USA FREEDOM Act, the American public will have no way to know if the government is following through on that decision.

Our bipartisan bill, the Surveillance Transparency Act of 2013, provides a blueprint for transparency by requiring the American government to release annual estimates of how many people had their information collected under each surveillance law, how many of those people were likely Americans, and how many of those Americans had their information actually reviewed by government officials. Our legislation also permits companies who received requests for information about their customers to release important information about those requests, including estimates of how many of their customers were affected by them. When introduced, both the House and Senate versions of the USA FREEDOM Act contained provisions that mirrored the above-referenced language in our bill; we will continue to work with the Senate sponsors to ensure their inclusion in any compromise bill.

Congress gave broad power to the intelligence community precisely because it was targeting our foreign enemies - not American citizens on American soil. When foreign intelligence powers are used to collect the information of American citizens, Americans deserve to know it. The transparency provisions in S. 1621 make that happen. They would let American companies give their customers hard data on the scope of government surveillance - and would dispel any misconceptions about the companies' role in those programs. They also give our nation's citizens a way to confirm that bulk collection is, in fact, over. And most importantly, they would give the American people the information they need to reach an informed opinion about surveillance programs and hold the American government accountable.

Unfortunately, by the time the House of Representatives voted on the USA FREEDOM Act, most of these transparency provisions were removed from the bill. The House-passed bill does not require the American government to tell the American people how many of them have had their information collected - or how many have had their information reviewed. It requires only that the government disclose the number of "targets" affected by surveillance orders. This language will almost certainly undercount the number of people affected by NSA surveillance: as Congress has seen with NSA's telephone records program, the search for the call records of a single "target" individual can involve the collection of the calling records of tens of thousands of people.

Your Administration has promised an end to bulk collection, but we believe that the American people will know that this promise has been met only if the government is required to report on all individuals affected by surveillance orders, not merely the number of targets affected by such orders. Appropriate transparency should also require the government to estimate the approximate number of Americans swept up in information collection - and, ideally, the number that had their information reviewed. Neither of these provisions is in the House bill, and neither figure was disclosed in the report issued last week by the Office of the Director of National Intelligence. We hope that you will support the restoration of these provisions in the USA FREEDOM Act when it is considered by the Senate.

We recognize that the House-passed bill does allow companies to release some aggregate figures about the government requests they receive. The rules for these disclosures were adapted from a legal settlement negotiated between the Department of Justice and leading Internet companies. But still, the rules for these disclosures often confuse more than they clarify. For some authorities, the bill lets companies disclose the number of "customer accounts affected"; yet for others, it lets companies disclose only the number of "selectors targeted" - with no explanation of either of those terms. Companies receiving FISA requests for information about a new product are put under a two-year gag order. The House bill also delays reporting and puts gag orders on companies receiving National Security Letters - delays and gags that did not exist in the companies' settlement.

We respect the need to prevent company disclosures from tipping off our adversaries about the presence or absence of surveillance. But transparency is also an important goal. As Congress debates the USA FREEDOM Act, we encourage you to re-examine whether such long delay times are truly necessary to protect national security - and whether they're necessary at all for National Security Letters. Any disclosure provisions should also uniformly allow company reporting in terms of all customers affected.

Thus, we respectfully urge you to formally and publicly support key improvements to any Senate surveillance reform bill drawn from our bipartisan surveillance transparency bill, including:

  • Provisions requiring the American government to release annual estimates of the number of individuals and Americans that have had their information collected, and ideally also how many Americans have had their information reviewed; 
  • Provisions allowing companies to disclose more information about government requests for their customers' information in a more timely manner than provided for in the House bill; and 
  • Avoiding any reporting requirement or disclosure provision allowing disclosure only in terms of "targets" instead of total individuals affected.
If your administration is genuinely unable to provide any specific information due to national security concerns or bona fide operational issues, we are willing to provide flexibility in the law as necessary. For example, we are willing to allow the government to report the number of unique identifiers (e.g. email addresses, phone numbers, etc.) whose information has been collected, where reporting in terms of individuals is impossible.

We appreciate your willingness to engage with us on these issues. After a long and difficult national debate on surveillance reform, we believe it critical that both you and Congress enact clear, consistent transparency standards for government and industry alike.

Thank you for your time and consideration.

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