More Transparency Already Sweeping Intelligence Agencies, Privacy Advocates Say

"We need to have a system we feel confident works even when the people using the system are not the best people,” said Sam Simon, aide to Sen. Richard Blumenthal, D-Conn. Blumenthal introduced a bill this summer proposing an advocate to the FISC, and last week joined Sens. Ron Wyden, D-Ore., Mark Udall, D-Colo., and Rand Paul, R-Ky., in introducing a more comprehensive bill that would create such a constitutional advocate, end bulk collection of phone metadata and make other surveillance updates (CD Sept 26 p1). Simon slammed current provisions that have been interpreted to authorize bulk collection and said Blumenthal struggles to parse them: “My boss is a lawyer, a lot of people think he’s a pretty good lawyer.”

"So far 25 bills have been introduced in just the last three months,” said American Civil Liberties Union Legislative Counsel Michelle Richardson, stressing the need for a statutory change. “Without a statutory change,” the surveillance practices “are going to continue.” Another bill is likely coming this week from House Judiciary Crime and Terrorism Subcommittee Chairman Jim Sensenbrenner, R-Wis., a collaborative between him and Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., a fierce advocate for ending the bulk records collection. The collection is “incredibly broad” despite the government’s insistence that it is meant to target bad actors, Richardson said. ACLU wants “a nexus back into the statute” and a “front-end limitation” on what’s happening, she said. Some observers are “arguing that metadata is more sensitive than content,” Richardson said. “This all can be aggregated and reflect your marital status, your political beliefs, your health problem.” She stressed the need for a substantive revamp amid all the bills Congress is considering.

Tech companies want the increased disclosure to show there aren’t excessive violations of privacy, while public interest advocates want disclosure because they believe the violations are worse than people realize, said Marc Zwillinger, founder and managing member of ZwillGen, a law firm that specializes in Internet law. He’s a former prosecutor in the Justice Department’s Computer Crime and Intellectual Property Section. Zwillinger has represented many tech companies, including Yahoo, in FISC proceedings that he couldn’t talk about for five years, he said. “We're all pushing for more transparency and sunlight in the process.” Tech companies “tend to have a view that they will benefit [from disclosing],” Zwillinger said, comparing the number of requests for information telcos and tech companies received. “The telecom and wireline providers may not see the same benefit. There’s a suspicion that their numbers are significantly higher."

Simon called the bipartisan proposal from the four senators “an effort to marry” different surveillance concerns in the Senate. “The biggest thing that could derail the process is that it’s hard for people to agree on what should be done.” The constitutional advocate is important for appealing FISA rulings, he said. It’s “too soon to tell” what the role of the Privacy and Civil Liberties Oversight Board will be in the adversarial process, although the latest Blumenthal bill does include it, he said.

NSA posting a privacy officer this month is “interesting and indicative of something,” said Harriet Pearson, a partner at Hogan Lovells US. She judged these latest months to be “a new era of accountability for the intelligence community.” It’s encouraging that the PCLOB has had a greater role recently, she said, calling it a “a travesty, frankly” that the board has been underutilized in the past. Zwillinger applauded the intelligence community’s IC On the Record Tumblr account, saying it left him “surprised and pleasantly so,” and is an “unprecedented” move toward transparency. The White House’s surveillance review group, appointed to provide surveillance reform recommendations to President Barack Obama, is soliciting comments, due Oct. 4, through the Tumblr account. “There’s just a knee-jerk classification impulse, and that’s changed, I think,” Zwillinger said. The Electronic Privacy Information Center’s Alan Butler, appellate advocacy counsel for the Domestic Surveillance Project, called the recent disclosures “a very positive step, a step in the right direction.”

But the revelations have stirred new debates, panelists said. Simon called leaks on how the Drug Enforcement Administration accessed people’s records “a really important story” that is “worth digging a little deeper on.” The limited media accounts suggest arrangements “insulated from judicial review,” Simon said. “The program was set up in a way to insulate it from oversight that was very clever and very deliberate.” He criticized FISC Judge Claire Eagan’s Aug. 29 opinion, which the Office of the Director of National Intelligence released in September, providing legal justification for the bulk collection. “Clearly it’s a political opinion,” he said, “constructed after this stuff started to come out.” The FISA court opinions are “fascinating,” Richardson said. “You can see the court discuss with [Justice] it feels it’s been misled, repeatedly."

Zwillinger said no one should want the government to be “entirely blind” and without surveillance abilities. To sift through data in global, interconnected networks today often leaves Americans’ data exposed, he said. “We have years of litigation … so I think it’s a good time to be a surveillance lawyer,” Zwillinger added. (jhendel@warren-news.com)