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S. HRG. 113–365 

THE SURVEILLANCE TRANSPARENCY ACT OF 2013 

HEARING 

BEFORE THE

SUBCOMMITTEE ON PRIVACY, 

TECHNOLOGY AND THE LAW 

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

NOVEMBER 13, 2013 

Serial No. J–113–40 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON PRIVACY, TECHNOLOGY AND THE LAW

AL FRANKEN, Minnesota, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMBER, New York 

SHELDON WHITEHOUSE, Rhode Island 

CHRISTOPHER A. COONS, Delaware 

MAZIE HIRONO, Hawaii 

JEFF FLAKE, Arizona, Ranking Member 

ORRIN G. HATCH, Utah 

MICHAEL S. LEE, Utah 

JOHN CORNYN, Texas 

LINDSEY GRAHAM, South Carolina 

ALVARO BEDOYA, Majority Chief Counsel 

ELIZABETH TAYLOR, Minority Chief Counsel 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 1 

prepared statement .......................................................................................... 34 

Flake, Hon. Jeff, a U.S. Senator from the State of Arizona ................................. 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 36 

WITNESSES 

Witness List ............................................................................................................. 33 

Heller, Hon. Dean, a United States Senator from the State of Nevada ............. 3 

Litt, Hon. Robert S., General Counsel, Office of the Director of National 

Intelligence, and J. Bradford Wiegmann, Deputy Assistant Attorney General, National Security Division, Department of Justice, Washington, DC .... 5 

prepared statement .......................................................................................... 37 

Bankston, Kevin S., Senior Counsel and Director, Free Expression Project, 

Center for Democracy & Technology, Washington, DC .................................... 18 

prepared statement .......................................................................................... 43 

Rosenzweig, Paul, Principal, Red Branch Consulting, PLLC, and Professorial 

Lecturer in Law, George Washington University, Washington, DC ................ 20 

prepared statement .......................................................................................... 58 

Salgado, Richard, Director, Law Enforcement and Information Security Matters, Google, Inc., Mountain View, California .................................................... 21 

prepared statement .......................................................................................... 65 

QUESTIONS 

Questions submitted by Senator Leahy for Kevin Bankston ............................... 72 

Questions submitted by Senator Flake for Paul Rosenzweig .............................. 73 

QUESTIONS AND ANSWERS 

Responses of Kevin Bankston to questions submitted by Senator Leahy ........... 74 

Responses of Paul Rosenzweig to questions submitted by Senator Flake .......... 93 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Alexander, Keith B., Director, NSA, statement .................................................... 95 

Felten, Edward W., Professor of Computer Science and Public Affairs, Princeton University, statement .................................................................................... 102 

(1) 

THE SURVEILLANCE TRANSPARENCY ACT OF 

2013 

WEDNESDAY, NOVEMBER 13, 2013 

U.S. SENATE, SUBCOMMITTEE ON PRIVACY, TECHNOLOGY, AND THE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:03 a.m., in 

Room SD–226, Dirksen Senate Office Building, Hon. Al Franken, 

Chairman of the Subcommittee, presiding. 

Present: Senators Franken, Leahy, Blumenthal, Flake, and Lee. 

OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR 

FROM THE STATE OF MINNESOTA 

Chairman FRANKEN. This hearing will come to order. Welcome to 

the Senate Judiciary Subcommittee on Privacy, Technology, and 

the Law. The subject of this hearing is my bill, the Surveillance 

Transparency Act of 2013. I am proud to say that 2 weeks ago I 

reintroduced this bill with the support of my friend and colleague, 

Senator Dean Heller of Nevada, who we will be hearing from in 

just a moment. 

This bill is urgently necessary. Americans understand that we 

need to give due weight to privacy, on the 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’s surveillance programs. And yet right now, by law, 

Americans cannot get really the most basic information about what 

is going on with these programs. Consider this: It has been months 

since the PRISM program and the telephone call records program 

were revealed to the public. And yet to this day, Americans do not 

know the actual number of people whose information has been collected under those programs; they do not know how many of those 

people are American; and 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 in good faith to address 

this problem. But I am 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 and security 
2 

or whether their privacy is being violated. I believe there needs to 

be more transparency. 

I have written a bipartisan bill to address this. It will require 

that 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 number of orders they are getting under each key 

authority and the number 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 

& Innovation Foundation estimates that American cloud computing 

companies could lose $22 to $35 billion in the next 3 years because 

of concerns about their involvement with surveillance programs. 

The analytics firm Forrester puts potential losses much higher, at 

around $180 billion. 

A few companies have litigated and secured permission to publish limited statistics about the requests that they get. But again, 

this is too little, and it is 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 

against losing business from misconceptions about their role in 

these programs. 

I am pleased to say that this bill is the leading transparency proposal in the Senate, supported by a strong coalition of tech companies and civil liberties groups. The version as introduced gained the 

support of 12 senators, including the Chairman of the full Judiciary 

Committee, Patrick Leahy. I anticipate that we will soon be adding 

our original supporters onto 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 getting the feedback of top experts in the administration, privacy groups, and 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 they have. I have already added provisions 

to the bill to protect national security, but I want to know of any 

further concerns that they have. I suspect that I will agree with 

them in some cases and 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 utmost 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. 

Senator. 
3 

OPENING STATEMENT OF HON. JEFF FLAKE, A U.S. SENATOR 

FROM THE STATE OF ARIZONA 

Senator FLAKE. Thank you, Senator Franken, and I appreciate 

those who will testify today. This is the first Subcommittee hearing 

we have had, and 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 that you talked about between privacy 

issues, between transparency, and national security. I look forward 

to this hearing to see if we have 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 the Congress goes through continually. 

I was around when the PATRIOT Act passed. There were issues 

with that, where we authorized it but then sunsetted a lot of the 

provisions that we needed to deal with later and then dealt with 

those later. We were continually with technology developing, continually trying to strike the right balance. The security leaks that 

we have had in the past couple of years and certainly in the past 

couple of months have undermined the confidence that the public 

has in what we are doing here, and that I think 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 interests of the public in mind here. 

So, with that, I look forward to hearing the testimony. 

Chairman FRANKEN. Thank you, Senator Flake. This is the first 

hearing of this Subcommittee in this Congress, and I am happy to 

have you as the new Ranking Member of this Subcommittee. 

It is now my pleasure to introduce your friend and colleague, the 

Senator from Nevada, Senator Heller. Two weeks ago, Senator 

Heller and I introduced an improved version of this bill. I think 

that Senator Heller’s support for this bill and his presence here 

speaks to the fact that transparency is a bipartisan 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 Heller. 

STATEMENT OF HON. DEAN HELLER, A UNITED STATES 

SENATOR FROM THE STATE OF NEVADA 

Senator HELLER. Thank you, Mr. Chairman, and to Senator 

Flake, I am pleased to be here today. I would also like to thank 

you 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 have brought to the table on transparency to the bulk 

collection programs run by the NSA. 

This is a strong bill rooted in the belief that Nevadans, Minnesotans, and all Americans should be provided access to reports that 

explain the personal communication records that the Government 

is collecting and how many Americans have had their information 

caught up in that collection. 
4 

By now most people are aware of the bulk collection practices by 

the Federal Government that are authorized by sections of the PATRIOT Act and sections of the FISA Amendments Act. I am confident the full Judiciary Committee will have a robust debate on 

the bulk collection practices and whether or not this program 

should continue. I believe that the bulk collection program mostly 

authorized under Section 215 of the PATRIOT Act should come to 

an end. 

Subsequently I agreed to join with Judiciary Chairman Leahy as 

a principal sponsor with Senator Lee and Senator Durbin on the 

USA Freedom Act. While there is disagreement on whether this 

program should continue, I am confident all of us can agree that 

these programs deserve more transparency. This is why I joined 

Senator Franken to introduce the Surveillance Transparency Act of 

2013. 

This legislation would call for reports from the Attorney General 

detailing the requests 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 

their information looked at by the NSA. 

Furthermore, this legislation would allow telephone and Internet 

companies to tell consumers basic information regarding the FISA 

Court orders they receive and 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 Surveillance Reform Act introduced by Senator Wyden, the USA Freedom 

Act introduced by Chairman Leahy and myself, and the FISA Improvement Act introduced by Senator Feinstein. 

Mr. Chairman, while positions on the bulk 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 are talking about millions of 

Americans’ calls that are 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. 

And with that, again, thank you for the opportunity to have me 

testify, Mr. Chairman. I want to repeat thank you very much for 

your leadership on this issue. 

Thank you. 

Chairman FRANKEN. Thank you for yours, Senator Heller. I am 

looking forward to working together with you on this as we go 

through this process. You are excused, and your panel is adjourned. 

Chairman FRANKEN. I would now like to introduce our second 

panel of witnesses. 

Robert Litt is the General Counsel of the Office of the Director 

of National Intelligence. He was confirmed by the Senate by unani-
5 

mous consent in 2009. Before joining the ODNI, Mr. Litt was a 

partner with the law firm of Arnold & Porter. From 1994 to 1999, 

Mr. Litt worked in the Department of Justice where he served as 

Deputy Assistant Attorney General in the Criminal Division and 

then as Principal Associate Deputy Attorney General. 

Brad Wiegmann 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. 

Welcome, gentlemen. ODNI and DOJ have submitted joint written testimony, which will be made part of the record. You each 

have 5 minutes for any opening remarks that you would like to 

make. Mr. Litt, would you begin? 

STATEMENT OF HON. ROBERT S. LITT, GENERAL COUNSEL, 

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, 

AND J. BRADFORD WIEGMANN, DEPUTY ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Mr. LITT. 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. And I want to say that I appreciate the support that you have shown for the intelligence community over the last few months in their activities. 

The recent unauthorized disclosures have led to a public dialogue 

about intelligence collection activities, particularly those conducted 

under the Foreign Intelligence Surveillance Act. But it is critical to 

ensure that that public dialogue is grounded in fact rather than in 

misconceptions. And, therefore, we agree that it is 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 comply with the law. 

As you know, some months ago 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 sensitive sources and methods. Since then, the Director of National Intelligence has declassified and released thousands of pages of documents about these 

programs, and we are continuing to review documents to release 

more of them. 

These documents demonstrate that these programs are all authorized by law and subject to vigorous oversight by all three 

branches of government. And it is important to emphasize that this 

information was properly classified. It is being declassified now 

only because in the present circumstances the public interest in declassification outweighs the national security concerns that require 
6 

classification. But we still have to take those national security 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 authorities under FISA, and I agree with both you and 

Senator Heller that it is appropriate to find ways to inform the 

public about this 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 under various FISA 

authorities and the total number of targets affected by those orders. 

Moreover, recognizing that it is important for the companies to 

be able to reassure their customers about how often or, more precisely, how rarely the companies actually provide information about 

their customers to the Government, we have agreed to allow them 

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 that this approach strikes the proper balance between 

providing the public information about the use of the legal authorities and protecting our important intelligence capabilities, and I 

would be glad to discuss that with you in more detail as we move 

ahead. 

Turning to the Surveillance Transparency Act of 2013, which you 

and Senator Heller have cosponsored, we have reviewed the bill 

and we share the goal of providing the public greater insight into 

the Government’s use of FISA authorities. And we appreciate the 

effort that you have 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 bill’s provisions are consistent with the steps we 

have taken so far, and we support them. But we do continue to 

have concerns that some of the provisions raise significant operational or practical problems. These concerns are set out in more 

detail in the written statement for the record, and I will just summarize now that they fall into two broad categories. 

First, while we believe that it is possible and appropriate to reveal information about the number of targets of surveillance, counting the number of persons or of U.S. persons whose communications are actually collected, even if they are not the target, is operationally very difficult, at least without an extraordinary investment of resources, and maybe not even then. 

For example, it is 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 the citizenship or nationality of that 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 perversely require a greater invasion of that person’s privacy 

than would otherwise occur. 

It is for these reasons that the Inspectors General of the National Security Agency and of the intelligence community have 
7 

stated in letters to the Congress that this kind of information simply cannot be reasonably obtained. 

Second, we have significant concerns with allowing individual 

companies to report information about the number of orders to 

produce data that they receive under particular provisions of the 

law. Providing that information in that level of detail could provide 

our adversaries a detailed roadmap of which providers and which 

platforms to avoid in order to escape surveillance. We believe that 

the reporting we have already 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 with this Committee to ensure the maximum 

possible transparency about our intelligence activities that is consistent with national security. The President is committed to this. 

The Director of National Intelligence is committed to this. The Attorney General is committed to this. General Alexander is committed to this. We are open to considering any proposals so long 

as they do not compromise our ability to collect the information we 

need to protect this Nation and our allies, and we look forward to 

working with you in this regard. 

Thank you. 

Chairman FRANKEN. Thank you, Mr. Litt. 

Mr. Wiegmann. 

Mr. WIEGMANN. Thank you, Mr. Chairman. Thank you for having 

me here today. I do not want to replicate what Bob Litt has just 

explained, so I do not 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 transparency efforts that 

the intelligence community is engaged in now. We also, as Bob 

said, share the goals of the bill that you have prepared in terms 

of increasing transparency, but we have some technical concerns 

about how those proposals can be implemented that we are happy 

to discuss today. 

I guess I would just say a couple of other things. One is that I 

think this is an area where the details very much matter. We are 

very much in support of transparency, but we want to do so in a 

way that is consistent with our national security needs. You have 

seen a number of documents declassified over the last several 

months, and I am sure from the outside it looks very slow and ad 

hoc, as you said earlier. That is because these documents involve 

a lot of detailed classified information, and it takes a lot of time 

to go through the documents and determine what can safely be revealed and what cannot, and there are a lot of equities of different 

components of the intelligence community that have a stake in the 

information in play. So our transparency efforts are a work in 

progress. We continue to work on them as we go forward, but we 

are trying to do so in a careful and deliberate way. But I do not 

doubt that to the outsider it looks as if it is slow and ad hoc, but 

that is because we are trying to protect national security while also 

promoting transparency goals. 

So, with that, I guess I will just—the other thing I guess I would 

say in addition, though, is to contrast the U.S. response to these 

disclosures to those of some foreign governments. We have, in response to these unauthorized disclosures, tried to be more trans-
8 

parent, and that has not always been the case with other governments that have experienced this, either in the past or more recently. So I do think we are working in good faith to try to be more 

open about our intelligence collection activities, and we are happy 

to work with the Committee to continue to promote that goal. 

That is all I have. 

[The prepared statement of Messrs. Litt and Wiegmann appears 

as a submission for the record.] 

Chairman FRANKEN. Thank you, Mr. Wiegmann, and thank you 

both. As I said, you submitted joint testimony, and, of course, that 

will be part of the record. I appreciate your not taking every 

minute of your time here. 

I will say about the disclosures—that I have said that these have 

been, I think, in good faith. It is just that there is nothing in the 

law about them, so there is nothing permanent about what you are 

doing, and what we are trying to do is create a framework where 

people have a little bit more confidence or understanding or can decide for themselves whether they should have confidence. 

Mr. Litt, 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 kind of troubling, and here is why. 

We give the intelligence community broad legal power to conduct 

surveillance precisely because that surveillance is supposed to be 

targeted at foreign adversaries, not at Americans. Many of the 

broadest laws we have written, like Section 702 of FISA, explicitly 

say that you can only use this law only to target foreign people. 

You cannot use it to target U.S. persons. 

Mr. Litt, isn’t it a bad thing that NSA does not even have a 

rough sense of how many Americans have had their information 

collected under a law, Section 702, that explicitly prohibits targeting Americans? 

Mr. LITT. So I have to preface everything here by emphasizing 

that I am a lawyer, not an engineer or a computer scientist, and 

so everything I say here gets filtered through that prism. But—— 

Chairman FRANKEN. Well, if you were an engineer or a computer 

scientist, we would have you working on something else. 

[Laughter.] 

Mr. LITT. But I think it is important to differentiate here between the concept of who is targeted for collection and whose communications are incidentally collected. 

Because of the legal requirement, for example, under Section 702 

that NSA only target non-U.S. persons, NSA does the research necessary when they have a target to determine whether that person 

is or is not a U.S. person. They need to be able to make that determination. 

That is a very, very different process from saying we are going 

to look at all of the communications that are collected, and we are 

going to evaluate every single party to every one of those communications to determine whether or not that is 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 for the purpose of 

targeting that person, but that is a different proposition. 
9 

Chairman FRANKEN. Okay. Well, I think an estimate, though, 

could be made through statistical sampling, a method that has 

been used in comparable circumstances before the FISA Court. I 

would like to add to the record two pieces of testimony that to me 

suggest 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 NSA employs over a thousand mathematicians, 

more than any other employer in the United States, more than 

every university in Minnesota, more than MIT or CalTech. 

The second piece of testimony is from Ed Felten, the Princeton 

professor and the former technologist for the Federal Trade Commission. He said, ‘‘Yes, the Government has the ability to give a 

rough estimate of the number of American citizens and permanent 

residents whose metadata and content has been collected.’’ 

[The statements appear as a submission for the record.] 

Chairman FRANKEN. Let us move on to the disclosure by the 

companies. Mr. Litt, in your testimony you warn that, quoting from 

your testimony, ‘‘More detailed company-by-company disclosure 

threatens harm to national security by providing a roadmap for our 

adversaries on the Government’s surveillance capabilities . . .’’ 

This concern makes sense. But I have difficulty 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. And 2 months ago, Michael Hayden, the 

former Director of NSA and of CIA, gave a speech in which he said, 

‘‘Gmail is the preferred Internet service provider of terrorists 

worldwide.’’ That is a verbatim quote, according to the Washington 

Post. 

Mr. Litt, it seems to me that if the former head of the CIA and 

the NSA does not think it is a problem to let everyone know that 

terrorists just love Gmail, then why do you think that a companyby-company disclosure threatens national security? He evidently 

does not. 

Mr. LITT. A couple of thoughts on that. To my knowledge, General Hayden did not talk to us before making those statements. I 

do not know that we would have authorized that statement to be 

made. I just do not know what was done there. 

The point is that if we allow the companies on an annual basis 

to publish these statistics, it is going to simply provide additional 

information out there as new companies come online and pop up. 

You may have a company that, for example, 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 got 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 easier 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 

about their customers to the Government. And that, it seems to 

me, is an adequate way of providing the public the information 

they need to know about the minuscule proportion of times in 
10 

which that actually happens. And breaking it down further in our 

view crosses the line of the appropriate balance between transparency and national security. 

Chairman FRANKEN. We are going to have testimony from some 

privacy people and from Google talk about that aggregation. I do 

not think that aggregation is all that helpful because you really are 

not giving people an idea of how much is—I mean, you are mixing 

apples and oranges, so you are having how many wiretaps there 

are on mobsters with—I mean, to me it does not create the kind 

of transparency that creates the kind of knowledge the American 

people—I have some time—gives the American people a way to 

judge the program. 

Let me ask Mr. Wiegmann something. I am the Chairman. I 

guess I can go over my own times, but I have got 9 seconds, and 

I will try to ask a question. Mr. Wiegmann, I understand that you 

think that my bill would require too much detail in government reporting. I am going to weigh that feedback very carefully. But I do 

want to point out that when I drafted the government reporting requirements in the bill, I modeled them after the wiretap report 

that the Department of Justice releases every year. 

If you look at last year’s report, it breaks down the number of 

wiretaps not just nationally but by specific jurisdiction and then 

breaks down those numbers by the nature of the wiretap—a mobile 

phone, a home phone, a business phone. Last year’s wiretap report 

shows that federal prosecutors in Manhattan secured wiretap orders for mobile phones 48 times in 2012, while their colleagues in 

Brooklyn only did this 5 times in the same period. 

The wiretap report contains a wealth of information, yet nobody 

is arguing that criminals in Manhattan are reading the wiretap report and fleeing to Brooklyn because, you know, they are less likely 

to get their phone tapped there. 

My bill would not even require anything near this level of reporting. It would require the Government to report national statistics, 

and any time the number of Americans affected was lower than 

500, the report would just say ‘‘fewer than 500.’’ 

Mr. Wiegmann, why would the reporting requirements in my bill 

raise national security concerns if the far more detailed reporting 

requirements in DOJ’s wiretap reports do not raise public safety 

concerns? 

Mr. WIEGMANN. So that is a good question. The regular wiretaps 

under the Wiretap Act do not involve classified techniques, so there 

are platforms that we use in the intelligence context that it is unknown to the outsiders or anyone outside the executive branch as 

to whether we can collect on a particular communications technology. So the difference—— 

Chairman FRANKEN. But I am not having you—— 

Mr. WIEGMANN. What is that? 

Chairman FRANKEN. The disclosure would not be talking about 

a technology other than it is on the Internet or phone. 

Mr. WIEGMANN. Right. 

Chairman FRANKEN. We know those technologies. 

Mr. WIEGMANN. We think that our adversaries can surmise—let 

us say, for example, in year one we know that there is a company 

that has a particular number of surveillance requests and that 
11 

number is published. They then introduce a new capability, a new 

service that they provide, and then all of a sudden that number 

goes up dramatically in the following year. That is something that 

our adversaries could glean information from that and surmise as 

to whether we have the capability to collect on a new technology. 

So that is the type of thing that I am talking about that is different 

than in the wiretap context where everyone knows that a basic 

phone tap is something that you can do. So that is the difference 

there. 

I would also like to address briefly your last question to Mr. Litt 

about NSLs. The reason why NSLs are different than other collection methods, is that it is just collecting business records. It is not 

an interception capability. You are not intercepting communications in real time. You are just collecting business records that the 

companies have, and so that is the distinction there that we do not 

have the same concerns about revealing those numbers in aggregate that we would with intercept capabilities. 

Chairman FRANKEN. Well, thank you. I thank the Ranking Member for his indulgence. I have gone way over my time. I thank you 

too, but please continue. 

Senator FLAKE. Well, thank you. They have been useful questions and some of the same questions that I had as well. 

Mr. Litt, if you could kind of drill down a bit in terms of increased manpower and what it would take to actually make some 

determination of the percentage of individuals who are U.S. citizens who are surveilled, what would that look like, without revealing more than you need to reveal here? What would that take to 

actually go through and determine what percentage? 

Mr. LITT. So I can offer actually an example in that regard. The 

Chairman made reference to the FISA Court opinion that we have 

released from 2011, which involved a compliance violation under 

the collection under Section 702. And in connection with that, NSA 

did do a statistical sample to try to determine how many wholly 

domestic communications may have been intercepted through one 

portion of this collection, and they did a statistical sample where 

they reviewed I think approximately 50,000 communications, which 

was a very small percentage of that. 

My understanding is that it took a number of NSA analysts 

about 2 months to do that, and that even in that regard, there 

were a number of instances where they simply could not come up 

with the necessary information, that the actual information was in 

a wide—ended up with numbers in a wide range based on a lot of 

assumptions. And the last point I want to make on that is that 

that was actually an easier task than the one that is being asked 

here, because they were looking for wholly domestic communications, which means that anytime they found a communication 

where there was one non-U.S. person they could immediately throw 

it out and not look any further. So they never did actually go 

through and look at every single party to every single communication to determine whether or not it was a U.S. person. 

So I think that that example gives a sense of the resource intensiveness that would be required and the difficulty, even if you 

apply all those resources, in coming up with reliable numbers at 

the end of the process. 
12 

Senator FLAKE. So you maintain that it would take—it would 

probably lead a lot of resources away from the main task just to 

comply with this provision? 

Mr. LITT. Yes, I think those thousand mathematicians have other 

things that they can be doing in protecting the Nation rather than 

trying to go through and count U.S. persons. 

Senator FLAKE. In your testimony you mention that it may have 

a greater impact on privacy to actually have to drill down and determine who is a U.S. person and who is not. What level of detail 

do you typically have to have? You have to run—I guess search 

what other communications have come to this person or whatever 

else, and those are the things that—can you kind of explain what 

you mean by saying that you impact more on people’s privacy by 

drilling down and complying with this law than are currently out 

there? 

Mr. LITT. Yes, that is exactly right. NSA’s mission is to collect 

foreign intelligence. They are looking for the foreign side of the 

thing, and it is not what they ordinarily do to go out and try to 

find U.S. persons. And so if you impose upon them some sort of obligation to identify U.S. persons, they are going to take an e-mail 

address that may be, you know, Joe@hotmail.com, and they are 

going to have to dig down and say, ‘‘What else can we find out 

about Joe@hotmail.com?’’ And that is going to require learning 

more about that person than NSA otherwise would learn. 

Senator FLAKE. Mr. Wiegmann, we allowed the companies out 

there, Google and others, to reveal more than they were able to reveal before. Google has procedures that they follow. What other 

companies have taken advantage of the opportunity they have to 

reveal more information about what is surveilled and what is not? 

Is it universal, all of them are taking advantage of this, or some 

of them, or what? 

Mr. WIEGMANN. I would have to get back to you and give you the 

list of companies. I believe Microsoft has issued a Transparency Report with certain data, Facebook I believe. I would have to get you 

the complete list. I do not want to give you the wrong list of companies here, but I could get you the information about which ones 

have taken advantage of the Government’s offer thus far. 

Senator FLAKE. All right. 

I am sure we will learn more in the next panel, but is it your 

understanding that all—how universal is the request for the ability 

to give broader information or more information about what is 

being surveilled and what is being collected, whatever else? 

Mr. WIEGMANN. I think it is fair to say that a lot of the major 

Internet service providers do want to provide more information 

about how their users are affected by government surveillance. A 

number of them in the initial stages of this in the wake of the initial Snowden unauthorized disclosures came to us, and so we work 

with them on the proposal that Bob described, which was that we 

would release the aggregate number of law enforcement plus national security demands in the aggregate for those companies. I 

think they found that useful at the time because they put out press 

statements and so forth saying—you know, identifying those numbers and showing that that was a tiny fraction, I think in most 

cases less than one ten-thousandth or one one-hundred thou-
13 

sandths of their user base was affected by not only the national security demands but also the law enforcement demands together. So 

whether you slice out the national security or whether you include 

the law enforcement, it is a tiny, tiny fraction of their total user 

accounts, and that is what they wanted to be able to show, as Senator Franken was saying, to debunk the idea that we are engaged 

in some kind of dragnet surveillance whereby we are getting access 

to all of their users. In fact, the opposite is true, that it is a tiny, 

tiny number. And they were able to do that with the disclosures 

that we authorized at that time. 

Senator FLAKE. Thank you. 

Mr. Litt, getting back to what we were talking about before, in 

order to comply with the provisions of this legislation, would you 

sometimes require more of the companies in terms of trying to follow down and drill down on how many U.S. persons were affected 

here? Might there be additional concerns from the private providers that were—I do not know. Might they be more uncomfortable with additional requests to try to determine—we already have 

minimization procedures that apply in order to exclude U.S. persons, but this would seem to be a lot more drilling down, as you 

mentioned before. What concerns do others have about this? And 

should they be concerned about more intrusiveness on the part of 

the Government to determine who is a U.S. person and who is not 

just for the purpose of complying with the Act? 

Mr. LITT. Well, I do think that people should be concerned about 

the greater intrusiveness. I am not sure technically whether it 

would require any more of the companies or not. I think that more 

likely NSA would simply rely on its own internal resources rather 

than—because they would need some additional authority to go 

back to the companies to get subscriber information or whatever. 

So I am not sure that it would impose an additional burden on the 

companies, which does not in any way mitigate the intrusion on 

the individual. 

Senator FLAKE. But you do not anticipate having to go back to 

the companies and say we would need additional information in 

order to determine—or to comply with the law? 

Mr. LITT. I would not say that I do not anticipate it, but I am 

not sure that it would happen or that, frankly, there would be a 

way we could do it legally to get that information from the companies. 

Senator FLAKE. Thank you, Mr. Chairman. 

Chairman FRANKEN. Thank you. And I will say that we are going 

to have testimony from Google, and they have signed on to this, as 

have those companies. So we will hear from them. 

Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman. Thank you for 

your leadership on this bill. Thank you to our Ranking Member 

and to Senator Heller. I am a cosponsor of this measure and really 

want to express my gratitude to you, Senator Franken, for spearheading this effort. But, of course, it really embodies the general 

truth that what you do not know can hurt you. And what the 

American people do not know about much of what you do, and it 

is important, indeed essential work to our national security, can 

create misinformation and deception and undermine the trust and 
14 

credibility in the entire program of surveillance and intelligence 

vital to national security. So what the American people do not 

know can hurt them if it becomes a source of mistrust and loss of 

credibility here and around the world. 

So I think that this bill is very important, albeit only a first step, 

and I propose other measures such as a constitutional advocate 

that I think fits with the concept of this bill in terms of preserving 

an adversarial and accountability measure, as well as greater 

transparency and accountability in other ways. 

I would like to focus on the technical issues that you have raised. 

Don’t these pale compared to the importance of the objective? And 

aren’t they surmountable with relatively few resources if we define 

narrowly what those technical problems are? 

Mr. LITT. Well, taking—I mean, I guess I would say no and no. 

Taking your second point first, the judgment of people who have 

looked at this, not only people within NSA but, as I said, two Inspectors General who have also looked at it, is that this is not surmountable with a relatively modest application of resources, that 

it would be very resource intensive, and as I said, particularly with 

respect to U.S. persons, very—require additional intrusions on privacy. 

Our judgment is that this is not the best way to try to strike the 

balance between privacy and national security. I understand the 

view that there is important information out there. But one of the 

necessities of conducting intelligence operations is that not all the 

information that might be of use to the public is going to come out 

in the public. 

So I think that our view is that the steps that we have taken are 

appropriate ones, and we are prepared to work with the Committee 

and the Congress on additional steps that might be taken. But—— 

Senator BLUMENTHAL. But I do not understand—and forgive me 

for interrupting, but my time is limited. I do not understand what 

resource intensive—you know, that is a code word. It is a term of 

art maybe that is used to say it looks pretty difficult to do. It looks 

like it is going to cost a lot. How resource intensive really is it to 

accomplish these purposes? 

Mr. LITT. I do not know that we have done an actual cost estimate. The only yardstick I can give you is what was required to 

do the smaller and easier task that was done in connection with 

the FISA Court opinion that required, I believe, a half dozen analysts 2 months to do and still come up with an estimate that had 

wide ranges in it. And so that—— 

Senator BLUMENTHAL. Maybe you can give us some idea of what 

those ranges are. 

Mr. LITT. If you give me a second. 

Chairman FRANKEN. This will not come out of the Senator’s time. 

Mr. LITT. It is a long opinion, and it is going to take me a second 

to find the right place. 

[Pause.] 

Mr. LITT. I am sorry. I should have marked this in advance. 

So as I said, the issue was to determine what were wholly domestic communications, which I said is a different task, and as a 

result of this review, they determined that there were between 

996—essentially between 1,000 and 5,000 communications that met 
15 

that test. So you have a fivefold range there, and there are other 

estimates in here, for example, that say, well, it would not be any 

greater than this number. But they are all based on assumptions 

and estimates, and I do not know that there is any comfort that 

we could accomplish this with any degree of reliability. 

Senator BLUMENTHAL. But you have given me a number for the 

communications but not a number for the dollars. To put it perhaps 

oversimplistically, how do you measure resource intensive? 

Mr. LITT. I mean, you have to look at the number of people who 

would be required and the amount of time that would be required. 

Senator BLUMENTHAL. And can you give us some idea of what 

they would be? 

Mr. LITT. As I said, the only metric that I have is what was required to get this number, and my understanding is that that was, 

I believe, six analysts for a 2-month period. You would have to 

multiply that across a much larger sample, a much more difficult 

task, and additional FISA authorities. So you are talking, you 

know, some number of man-years that would be required to do 

this. 

Senator BLUMENTHAL. Thank you. Let me just move on. In the 

interest of perhaps anticipating the testimony we are going to receive from the next panel, I do not know whether you have had a 

chance to review that testimony, but, for example, a lot of it concerns the impact on communications internationally, and I wonder 

if you could comment in particular on the testimony, very compelling testimony, from Mr. Salgado about the need for transparency 

to enable the trust and credibility that is important for communications worldwide? 

Mr. LITT. So I have not had a chance to review the other testimony. I am generally familiar with the companies’ position. I think 

we have a lot of sympathy for their position. The unauthorized disclosures that have come out here have put them in a difficult position. It is one of the many things that we regret about these disclosures. 

Having said that, as Brad mentioned earlier, we are authorizing—we are prepared to authorize the companies to release the 

total number of orders they get and to disclose customer information and the total number of accounts affected by those orders. 

That is going to be a minuscule number. As Brad said, it is something like—you know, it is a fraction of 1 percent, and that covers 

all authorities. And it seems to me that that minuscule number is 

sufficient to meet the company’s needs, and it really does not advance things anyway—when they are allowed to disclose that 

0.0001 percent of their customer accounts are affected by orders to 

provide information to the Government, it does not really advance 

their needs to say, well, 0.000001 percent of those were pursuant 

to this authority and 0.000003 percent were pursuant to that authority. The relevant statistic is that any customer of Google or of 

any other company, there is only an infinitesimal likelihood that 

that person’s information is ever going to be asked for by the Government. 

Senator BLUMENTHAL. Thank you. My time has expired. Thank 

you very much. 

Thanks, Mr. Chairman. 
16 

Chairman FRANKEN. Thank you, Senator Blumenthal, and I am 

a cosponsor of your constitutional advocate bill. 

Senator BLUMENTHAL. Right. Thank you. 

Chairman FRANKEN. Senator Lee. 

Senator LEE. Thank you, Mr. Chairman. Thanks to you for being 

here with us today. 

Much of the testimony that we have received today highlights 

the consequences of unchecked government intrusion into the private lives of citizens and their interactions with private businesses. 

Senator Franken’s bill would take important steps to increase 

the transparency of government requests for information, and I 

very much applaud those efforts. In fact, Senator Leahy and I have 

incorporated the vast majority of Senator Franken’s provisions into 

our bill, S. 1215, the FISA Accountability, Privacy, and Protection 

Act, which makes broader reforms to the privacy protections within 

the FISA program. 

Our bill would tighten statutory authorities governing surveillance, would increase oversight and accountability, and would ensure that Americans’ constitutional rights under the Fourth 

Amendment are protected. 

The reporting provisions in these bills guarantee that we have an 

accurate understanding of the scope of these information collection 

activities and allow businesses to regain the trust of the public 

through the reasonable disclosure of their interactions with government agencies as they provide information. It is time we started requiring a little more sunlight in this fairly shadowy space. 

Mr. Litt, in your written testimony, you expressed support for 

the majority of the disclosure requirements in this bill. I was wondering, is your support a direct result of formerly covert collection 

programs having become public? Or do you think that nationwide 

aggregate disclosures are inherently beneficial and should be 

sought out? 

Mr. LITT. I think the answer to that is that aggregate disclosures 

are a good thing, provided they do not compromise our ability to 

collect important information. I think in the situation we are in 

right now, whatever the appropriate result might have been 6 

months ago, in the situation we are in right now where the Director of National Intelligence has already declassified the fact of certain programs and how they operate, that it is entirely appropriate 

to have aggregate disclosures of these activities going forward. 

For other important intelligence activities, I am not sure that we 

would reach the same balance, but to the extent that we are talking about these particular disclosures, we believe that they do 

strike the right balance now. 

If I could just for one thing—I know this is perhaps not considered a discreet thing to do. I do want to take issue with your suggestion that we are talking about unchecked intrusions into the 

privacy of Americans, because, in fact, they are very checked. We 

operate within the laws authorized by Congress. We operate with 

extensive oversight from all three branches of government, and 

they are highly regulated and highly checked. Whether or not they 

are appropriate or not I think is a valid question, but nobody 

should be under the illusion that we are operating without any 

checks on what we do. 
17 

Senator LEE. That is a fair point, and I understand your position 

there. One of the concerns is always, of course, that what might 

well be handled by responsible people today, tomorrow might not 

be. We do not know whether that might happen a week from now 

or a year from now or 10 years from now, but in a sense, we have 

seen this movie before and we know how it ends. If you give too 

much power to the Government with regard to domestic surveillance, eventually it will be abused, and we need to put in place 

whatever procedures might be necessary. 

If I understand your answer to my question correctly, part of 

what you are saying is that prior to the declassification that occurred recently, this might have run afoul of—this might have triggered your concerns, this kind of legislation might have triggered 

your concerns in the sense that it might have compromised ongoing 

activities. But since those have now been declassified, there is no 

reason not to do this. Am I understanding you correctly? 

Mr. LITT. Yes, I think that is right. 

Senator LEE. Okay. Thank you, sir, and thank you, Mr. Chairman. 

Chairman FRANKEN. Thank you, Senator. 

I want to thank you gentlemen not just for your testimony but 

for your service. You made a good point there about there are 

checks to what you do, and this is part of it. And you made a comment that there are checks on what you do, but that does not mean 

what you do is always appropriate. And that is what we are trying 

to get to here. 

You have made some disclosures that I think have been in good 

faith, but they are not permanent. They are not a part of the law. 

And so that is what we are discussing here. And, again, I want to 

thank both of you for your testimony, and now I want to call our 

third panel. So thank you both, gentlemen. 

Mr. LITT. Thank you, Mr. Chairman. 

Mr. WIEGMANN. Thank you. 

Chairman FRANKEN. Kevin Bankston is senior counsel and director of the Free Expression Project at the Center for Democracy and 

Technology. Mr. Bankston is a long-time advocate and litigator on 

privacy, civil liberties, and Internet policy matters. Mr. Bankston 

and the Center for Democracy and Technology organized and led 

the coalition of companies and civil liberties groups that called for 

greater transparency and that now is advocating the passage of 

this bill. 

Paul Rosenzweig is the founder of Red Branch Consulting, a national security consulting company, and a senior adviser to the 

Chertoff Group. From 2005 to 2009, he served as Deputy Assistant 

Secretary for Policy in the Department of Homeland Security. He 

also teaches at George Washington University Law School. 

Richard Salgado is Google’s director for information security and 

law enforcement matters. He served as a federal prosecutor in the 

Computer Crime and Intellectual Property Section of the Department of Justice, where he specialized in technology-related privacy 

crimes. He has taught at Stanford Law School, Georgetown University Law Center, and George Mason University Law School. 
18 

Thank you all for joining us. Your complete written testimony 

will be made part of the record. You each have 5 minutes, about 

5 minutes, for any opening remarks that you would like to make. 

Mr. Bankston, please go ahead. 

STATEMENT OF KEVIN S. BANKSTON, SENIOR COUNSEL AND 

DIRECTOR, FREE EXPRESSION PROJECT, CENTER FOR DEMOCRACY & TECHNOLOGY, WASHINGTON, DC 

Mr. BANKSTON. Chairman Franken, Ranking Member Flake, and 

members of the Subcommittee, thank you for the opportunity to 

testify on behalf of the Center for Democracy & Technology, a nonprofit, public interest organization dedicated to keeping the Internet open, innovative, and free. 

I and the broad coalition of Internet companies and advocates 

that CDT brought together this summer to press for greater surveillance transparency are grateful to Chairman Franken and Senator Heller for introducing the Surveillance Transparency Act, a 

bill that would allow companies and require the Government to 

publish basic statistics about how the Government is using its national security surveillance authorities. 

Particularly in the wake of recent revelations about the NSA’s 

surveillance programs, we believe this level of transparency about 

what companies do—and don’t do—in response to government demands is critically important for three reasons. 

First, the American people and policymakers have a clear right 

and need to know this information so that they may have a more 

informed public debate about the appropriateness of the Government’s use of its authorities and to better ensure that those authorities are not misused or abused. 

Second, the companies have a clear First Amendment right to 

tell us this information, and the Government’s attempt to gag them 

from sharing even this most basic data or even to admit that they 

have received foreign intelligence demands at all is clearly unconstitutional. Indeed, you will see this prior restraint at work today 

in the room. Even though everyone in this room knows and understands that Google has received Foreign Intelligence Surveillance 

Act process, Google’s representative is the one person in the room 

who cannot admit it. 

Third, greater transparency is urgently necessary to restore the 

international community’s trust in the U.S. Government and in our 

U.S. Internet industry, which is projected to lose tens, if not hundreds, of billions of dollars in the face of widespread concern from 

foreign governments and international users. 

We must take this opportunity to demonstrate that our surveillance practices are necessary and proportionate and respectful of 

constitutional and human rights. And if the numbers show otherwise, we must take this opportunity to reform our surveillance laws 

to better protect our rights as well as our national security. 

Speaking of national security, there are two basic arguments 

why publishing these numbers would threaten it, but neither is 

persuasive. 

First, there is concern that such reporting will reveal which services have not been targeted by the U.S. Government such that our 

enemies will seek them out. However, it has always been the case 
19 

that companies that have not yet received secret national security 

demands can say that they have not received secret national security demands, as was most recently demonstrated just last week 

when Apple revealed that it has never received an order under Section 215 of the PATRIOT Act. 

The second argument is that reporting will reveal which services 

have been targeted such that their enemies will avoid them. However, this concern rings somewhat hollow when top intelligence officials such as current NSA Director Keith Alexander have repeatedly and publicly announced the names of various services, such as 

Google, Facebook, Twitter, and Yahoo!, that they believe terrorists 

are using. Senator Franken also mentioned a comment by former 

NSA Director Michael Hayden. 

Put simply, and as these generals recognized, saying that someone on a service is being surveilled is very different from identifying who on that service is being surveilled, and only the latter 

is dangerous to national security. Therefore, the less transparent 

alternatives to the bill that the Government has suggested are unnecessary to protect national security. More than that, they would 

actually be worse than the current transparency status quo. 

On the Government reporting side, the DNI has announced he 

will voluntarily publish new statistics reflecting how many people 

have been ‘‘targeted’’ under various surveillance authorities. But 

such limited reporting would actually be misleading. 

For example, the DNI’s reporting for 2012 would only have indicated that around 300 people had their telephony metadata targeted under Section 215 of the PATRIOT Act, yet we now know 

that the Government has used Section 215 to obtain the phone 

records of every single person in the country. Such falsely reassuring reporting would do more harm than good. 

On the company reporting side, the government advocates for a 

lot of what I will call ‘‘fuzzing’’ and ‘‘lumping.’’ They want to lump 

together into a single number all the different foreign intelligence 

authorities as well as all State, local, and federal law enforcement 

requests and then fuzz that number up by putting it into a range 

of a thousand. That kind of fuzzing and lumping would be a step 

back for transparency, obscuring more than it reveals, especially 

considering that companies are already engaged in detailed reporting about the law enforcement process they receive and in some 

cases have also been allowed to publish separate rounded numbers 

about the national security letters they receive. 

No one has ever suggested that either that reporting or the detailed reporting that the Government has done for decades about 

its law enforcement wiretapping has ever disrupted an investigation. Neither would the reporting required and allowed for under 

this bill or that provided by the transparency provisions of the USA 

Freedom Act, another bill that CDT strongly supports. 

Greater transparency is no replacement for substantive reform of 

our surveillance laws, but it can serve as a key stepping stone toward that broader reform by allowing the public and policymakers 

to better understand how the Government is using its powers. 

So I thank you for your consideration, and I look forward to your 

questions. 
20 

[The prepared statement of Mr. Bankston appears as a submission for the record.] 

Chairman FRANKEN. Thank you, Mr. Bankston. 

Mr. Rosenzweig. 

STATEMENT OF PAUL ROSENZWEIG, PRINCIPAL, RED BRANCH 

CONSULTING, PLLC, AND PROFESSORIAL LECTURER IN 

LAW, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, DC 

Mr. ROSENZWEIG. Senator Franken, Senator Flake, members of 

the Subcommittee, I thank you very much for the invitation to appear today. It is always an honor to be asked to provide one’s views 

to the Senate of the United States, and I thank you for affording 

me that opportunity. 

I should begin by saying that, as a current holder of a top secret 

clearance for some of the work I continue to do for DHS, I have 

limited what I have read to what has been lawfully declassified by 

the DNI, as have most of the people in my position, which somewhat constrains how I can speak to the issues today. That having 

been said, I would make four basic points. 

The first is that transparency is a good thing, but unlimited 

transparency cannot be our end goal. Secrecy itself has its virtues 

in any number of circumstances. One can think of everything ranging from the attorney-client privilege to the identity of an undercover officer in a gang in Los Angeles to any number of reasons 

why governments legitimately keep secrets that are subject to oversight in a classified manner, either through the oversight of the executive branch or the legislative branch or in some cases the judicial branch. 

Thus, while I fully support the overarching sentiment that 

underlies much of the bill that is before you, that is, the idea that 

we can and should seek to increase transparency with respect to 

the NSA surveillance programs, I think that we have to do so in 

a calibrated way, one that takes into account what the end goal of 

transparency in this circumstance is. 

Now, I would submit that the end goal here is greater oversight, 

greater audit, greater assurance that the NSA and other intelligence community activities are acting in conformance with the 

laws as we have set them out and not in ways that are in violation 

of those laws. So to my mind, the right answer to many of the 

questions that you are asking is how will the transparency that 

you are advocating advance that goal. 

With that in mind, my second point is that I think that the proper reflection on what we should be learning more about with respect to the NSA surveillance is to require a lot of disclosure of aggregate information, a lot of disclosure with respect to existing programs, but that we should take very seriously the protestations of 

government officials who are, frankly, in a better position to know 

than I am at least, given what little I know about the classified nature of these programs, that further disclosures will disclose 

sources, methods, capabilities that have not yet publicly been disclosed. 

Indeed, my single greatest constructive criticism that I would 

offer with respect to the bill before you is the idea that the disclosure requirements are keyed to statutory programs themselves like 
21 

Section 215 or Section 702 and seems to operate from the unstated 

assumption that we have already learned all of the classified programs that are operating under those statutes. 

If that is the case, then the transparency that is key to those sections is to be welcomed indeed. I suspect, without knowing, that 

there are other programs involved, other covert programs that have 

not yet been disclosed, either lawfully or unlawfully, and it is at 

least plausible to me that further disclosures of particularized 

numbers would lead to the disclosure of programs that have not yet 

made it into the public record. If that were the case, I would think 

that that would be an unfortunate result. 

My third point would simply be that the most effective reforms, 

I think, are not just enhanced transparency for the American public but more structural reforms, things that you can do that are not 

part of this bill, that are part of, I think, what Congress can do, 

things like making the NSA Inspector General a Presidential appointment, expanding the jurisdiction of the Privacy and Civil Liberties Oversight Board. Those sorts of things do not sound as sexy 

as greater transparency, but I tend to think that in the end they 

will actually prove more effective than even the most detailed disclosure of individuated numbers within various programs. 

With that, I will conclude, and I look forward to your questions. 

[The prepared statement of Mr. Rosenzweig appears as a submission for the record.] 

Chairman FRANKEN. Thank you, Mr. Rosenzweig. 

Mr. Salgado. 

STATEMENT OF RICHARD SALGADO, DIRECTOR, LAW ENFORCEMENT AND INFORMATION SECURITY MATTERS, 

GOOGLE, INC., MOUNTAIN VIEW, CALIFORNIA 

Mr. SALGADO. Chairman Franken, Ranking Member Flake, Senator Blumenthal, and Senator Lee, thank you for the opportunity 

to appear before you this morning to talk about the Surveillance 

Transparency Act of 2013. My name is Richard Salgado. I am the 

director for law enforcement and information security at Google. In 

that capacity I oversee the company’s response to government requests for user information under various authorities. I am also responsible for working with teams across Google to protect the security of our networks and our user data. 

Mr. Chairman, we commend you for introducing the Surveillance 

Transparency Act of 2013. Simply stated, we believe that service 

providers should be able to disclose basic statistics about national 

security demands that we may receive. 

The revelations about the U.S. Government’s and other governments’ surveillance practices over the past few months have 

sparked a serious debate about the laws governing surveillance of 

private communications by the intelligence community. Google recognizes the very real threats that the U.S. and other countries face 

today, and of course, governments have a duty to protect their citizens. But the current lack of transparency about the nature of government surveillance in democratic countries undermines the freedom and the trust most citizens cherish. It also has a negative impact on our economic growth and security and on the promise of 

the Internet as a platform for openness and free expression. 
22 

In the wake of press reports about the so-called PRISM program, 

governments around the world have been considering proposals 

that would limit the free flow of information. This could have severe unintended consequences, such as a reduction in data security, 

increased costs, decreased competitiveness, and harms to consumers. 

Proposals like data localization pose a significant threat to the 

free and open Internet. If they are adopted, then what we will face 

is the effective creation of a ‘‘splinternet’’ broken up into smaller 

national and regional pieces with barriers around it to replace the 

global Internet that we know today. Enacting the Surveillance 

Transparency Act would allow the U.S. to take a first step toward 

rebuilding the trust that is necessary. 

Transparency and national security are not mutually exclusive. 

Since 2010, we have published a Transparency Report where we 

share information about the law enforcement requests for user data 

we receive from governments around the world. Earlier this year, 

after some discussions with the Department of Justice, we began 

providing more information about the volume and scope of national 

security letters that we receive, although in broad ranges. There 

has been no intimation from the Department of Justice that publishing statistics concerning NSLs has damaged national security. 

We approached the DOJ about expanding our reporting to include aggregated statistics about FISA requests that we may receive. We were disappointed that the Justice Department refused. 

In June, we filed a motion for declaratory judgment before the Foreign Intelligence Surveillance Court asserting a First Amendment 

right to publish this type of information. The DOJ repeated that it 

would allow companies to add the number of domestic law enforcement and national security requests together and report the sum 

as falling within some broad range. But this would be a significant 

step backward for Google’s users and the broader public. Rather 

than promote transparency, this proposal would actually obscure 

important information about the volume and type of all government demands that Google may receive, not just national security 

demands. 

As I mentioned, Google already discloses aggregate statistics 

about domestic law enforcement demands and has done so since 

2010. Publishing future reports, where we could only release this 

type of information in ranges rather than actual numbers and type, 

would provide less transparency than we have now. 

In addition, there would be no discernible benefit for transparency around national security demands that we may receive. Indeed, Google would continue to be prohibited from even acknowledging their receipt, which would only invite continued speculation 

about the import of the range that we are able to report. We would 

also lose the benefit of providing information specifically about national security letters that we currently enjoy. In short, the DOJ 

proposal would not provide the type of transparency that is reflected in the Transparency Surveillance Act of 2013. 

Transparency is critical in informing the public debate on these 

issues, but it is only one step among many that are needed. Two 

weeks ago, Google, along with AOL, Apple, Facebook, LinkedIn, 

Microsoft, and Yahoo!, voiced support for broader FISA reform that 
23 

would include substantial enhancements to privacy protections and 

appropriate oversight and accountability mechanisms. We strongly 

believe that governments throughout the world must revisit laws 

and practices governing state surveillance of individuals and access 

to private communications. This activity must be rule-bound, narrowly tailored, transparent, and subject to oversight. 

We look forward to working with the Congress on the Surveillance Transparency Act of 2013 and other reform measures. Thank 

you for your time and consideration. 

[The prepared statement of Mr. Salgado appears as a submission 

for the record.] 

Chairman FRANKEN. Thank you, gentlemen, for your testimony. 

Mr. Bankston and Mr. Salgado, you heard witnesses from ODNI 

and DOJ say that it would be very difficult for the Government to 

provide an estimate of the number of U.S. persons caught up in 

surveillance. Do you agree with them? 

Mr. BANKSTON. I prefer to talk about what the NSA should be 

able to do rather than getting into a debate over what they technically could do, although I have some opinions about that as well. 

The authorities we are discussing today are foreign intelligence 

authorities. They are predominantly intended to and are sometimes 

limited to acquiring the communications of foreign persons or persons outside of the United States and have special protections for 

U.S. persons. Therefore, knowing how many U.S. persons have 

been surveilled, have been swept up intentionally or unintentionally under these powers is critical to understanding whether they 

are being used correctly, proportionately, and in line with constitutional and statutory limits. And the fact that the NSA is claiming 

that it does not have the ability to provide even a rough estimate 

as to how many U.S. persons have been swept up in their surveillance is, quite frankly, shocking and I think points to perhaps a 

need to recalibrate what we are authorizing them to do if they cannot even judge how their activities are impacting the American 

people. 

More importantly, I am also disappointed to hear the implication 

that the NSA has more important things to do than to ensure that 

it is not inappropriately impacting the privacy of U.S. persons. 

That should be a core priority of the NSA, one that it can and 

should dedicate a reasonable amount of resources to. We think that 

with a reasonable amount of resources it can, as demonstrated in 

the FISA Court case of 2011, take measures to make reasonable estimates about how their authorities are impacting the American—— 

Chairman FRANKEN. Indeed, in the Bates FISA Court decision in 

2011, NSA had been violating its authority, right? And they were 

able to discover that partly by doing the kind of estimation that 

they did. 

Mr. BANKSTON. Indeed. And if such estimates had been required—— 

Chairman FRANKEN. Which was important to do. 

Mr. BANKSTON. If those had been required earlier, we would have 

found out 3 years earlier that Americans were unconstitutionally 

being surveilled and presumably would have put a stop to it. 

Chairman FRANKEN. Mr. Salgado? 
24 

Mr. SALGADO. I think it certainly makes sense to explore all the 

various ways that we can increase transparency around these programs whose data is being collected and what data. We want to be 

able to do that, of course, in a way that is a practical, reliable way. 

So I think it makes good sense to explore the different ways that 

that kind of an obligation could be satisfied by the Government and 

to take into account the costs that may be necessary to incur. But 

certainly the value of that sort of detail is significant. 

Chairman FRANKEN. Thank you. 

Mr. Bankston, you organized an impressive coalition of dozens of 

technology companies and civil society groups all calling for greater 

transparency and endorsing my bill specifically. It is a broad coalition of the Nation’s leading technology and Internet companies, including Google and Apple and Microsoft and Facebook, as well as 

many of the leading civil liberties groups. 

But, Mr. Salgado, could you just speak to why Google and Apple 

and Microsoft and Facebook—companies that normally compete 

with each other—are working together on this and what this 

means in terms of your business? 

Mr. SALGADO. Yes, thank you, Chairman. The disclosures that 

we have seen coming out in June, and since then, have the great 

potential for doing serious damage to the competitiveness of these 

American companies. There is a potential for great damage to the 

Internet as a whole, but certainly what I think these companies 

and Google recognize is that the trust, which is threatened, is essential to these businesses. It is very important that the users of 

our services understand that we are stewards of their data, we hold 

it responsibly, we treat it with respect, and that there is not any 

sort of confusion around the rules where we may be compelled to 

disclose the data to the Government; and when there are rules 

around that, that it is clear what they are and the interaction between the Government and Google and the other companies as 

well. 

This is essential to make sure that the users have confidence in 

their ability to place and trust their data with us. The impact of 

the disclosures in June are manifest. We can see as an academic 

matter—rather, as an anecdotal matter that customers who may be 

considering using the rich services available in the cloud are nervous to do so now as a result of those disclosures. This means that 

companies, some abroad and some in the United States, may not 

be taking advantages of the efficiencies and security benefits and 

all the other advantages of the cloud as a result of this. It is a terrible result and one that we need to address. Transparency, among 

other steps, would help restore the confidence in the cloud and 

American companies. 

Chairman FRANKEN. Thank you. 

The Ranking Member. 

Senator FLAKE. Thank you. I appreciate the testimony. 

Mr. Salgado, you heard the testimony previously and my question as to whether or not some of the companies would be concerned, would share the concern that there would be increased privacy concerns were this additional information to be gathered. Tell 

me why that does not make sense or tell me why you disagree. 
25 

Mr. SALGADO. Senator, I assume you are referring to the U.S. 

persons step within the government disclosure portion. 

Senator FLAKE. Yes. 

Mr. SALGADO. I think I share Mr. Litt’s view that it is unlikely 

that this would result in any more disclosures by companies to be 

able to make the evaluation that would be required of the—— 

Senator FLAKE. So they have the data, they could simply drill 

down on their own data without asking you for additional information? 

Mr. SALGADO. That is what I would anticipate, sir. 

Senator FLAKE. But revealing more information about drilling 

down on U.S. persons does not concern you as a company to have 

that additional information out there as required in this legislation. 

Mr. SALGADO. I think that as we look at the methods by which 

the intelligence community may address the U.S. persons estimation, it makes sense to look at that. How do you minimize those 

additional steps? And do they, in fact, require intrusions where 

there were not any before absent that obligation? 

Senator FLAKE. Mr. Bankston, did you have any thoughts on 

that, the general privacy concerns that they raised, additional concerns about privacy that would be raised by drilling down on this 

information? 

Mr. BANKSTON. I think it is important to note that, to some extent, privacy is invaded and has been invaded when the Government collects the data itself. And to say that we cannot make a 

meaningful estimate of how many people’s data we have collected 

and how many U.S. persons’ data we have collected, because to 

look at some small selection of it, to make that estimate would 

harm privacy, it just does not make sense to me. Privacy to some 

great extent has already been violated. We are just trying now to 

get a gauge of how many people’s privacy has been violated. 

Senator FLAKE. Mr. Salgado, you mentioned the prospect of different countries walling off their data or making an attempt to. 

How real of a concern and how timely of a concern is that? Have 

we seen such moves being taken by certain countries? Can you explain a little about that? 

Mr. SALGADO. Yes, Senator, we have, so it is a very real threat. 

We have seen proposed legislation in jurisdictions to do just this. 

We see it in several flavors. There is the possibility of requiring 

data location; so requiring companies to exclusively store data 

within a jurisdiction. You see affirmative laws that are often referred to as blocking statutes which would say companies that operate in this jurisdiction are not allowed to cooperate with U.S. authorities around data disclosure. So you see different flavors of 

these things. They all tend to start to create a network structure, 

an Internet structure that is based on political boundaries, and the 

idea of a global Internet quickly breaks down. 

Senator FLAKE. Well, thank you. That is a concern that I think 

a lot of us have. This free flow across borders that has been so 

healthy and been necessary for the growth of this kind of communication would be disrupted. 

Mr. Rosenzweig, let me just get a general answer from you on 

this. Is the value of legislation like this—I can see the value in a 

lot of companies to be able to explain more to their users and give 
26 

greater comfort there. Is there as much value in this being an additional check on Government not to go too far because they have to 

reveal this information? What is the greater value in legislation 

like this? Or is it shared that way? 

Mr. ROSENZWEIG. I think the first principle of value of the legislation is the one that Senator Franken expressed, which would be 

to statutorily mandate that which is now merely voluntary and an 

act of grace by the executive branch. So I think that that is—regularizing that, institutionalizing that is a positive value. 

I think that in general, legislation that requires the Government 

to explain itself is a positive value as well, everything from FOIA 

to Inspectors General statutes. 

My concern in particular would be to ensure that the disclosure 

requirements do not wind up disrupting the existence of heretofore 

undisclosed programs that are of value to us, and that I think I 

cannot answer in a generalized manner. I think it is a very caseby-case specific matter. I think that it is probably not a decision 

best left to the executive branch alone. I think it is a decision left 

to the executive branch in a classified discussion with this body 

and with the House of Representatives. It by its nature cannot be 

a discussion that, at least at the first instance, involves the American people, because that by its nature terminates the discussion 

itself. 

Senator FLAKE. Thank you. This has been very helpful. 

Chairman FRANKEN. Thank you, Senator Flake. 

Chairman Leahy has graced us and has arrived. I would like to 

add this statement from the Chairman to the record. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman FRANKEN. I would like to ask him to ask his questions. 

Chairman LEAHY. Thank you, and I also thank the courtesy of 

my friend from Connecticut, Senator Blumenthal. 

I think more and more people agree or should agree that we need 

additional transparency about our government surveillance activities. Without greater transparency, we are not going to restore public confidence. And I think Senator Franken’s work to build a consensus around transparency legislation deserves praise, and I am 

glad that Google and other tech companies are lending their support to that bill. 

I think that the tech industry realizes we need more than just 

transparency. We need some substantive reform. Seven of the 

major tech companies, and I am going to read them to make sure 

I got them all right—Google, Microsoft, Yahoo!, Apple, Facebook, 

AOL, and LinkedIn—signed a letter to me supporting greater 

transparency. They want substantial enhancement to privacy protection, appropriate oversight, and accountability matters, and I 

know Mr. Salgado knows that letter. I recently introduced a comprehensive surveillance reform bill—it is bipartisan—the USA 

Freedom Act, and I appreciate these companies supporting stronger 

FISA reform. 

Mr. Salgado, let me ask you, just enhancing transparency, is that 

going to be enough to bring back global confidence in American 

technology companies? Do we need to do more? And if we do not 

do more, is this going to affect U.S. businesses? 
27 

Mr. SALGADO. Thank you, Mr. Chairman. I think it is an important step to have increased transparency, but I do agree that more 

is needed than that. And as you noted, we have expressed our support for the legislation that you have offered. I think we need some 

reform that allows users and others to know that the intelligence 

community and its collection of data is done under law, that it is 

rule-bound, that it is narrowly tailored, that there is oversight, 

there is accountability for it; and, of course, as we have been discussing today, that there is some transparency around it that can 

help bring some of the trust that all this is happening. 

Chairman LEAHY. And aside from affecting the reputation of the 

United States, if we do not enact meaningful reforms, it is going 

to affect businesses, too, is it not? 

Mr. SALGADO. Absolutely, Mr. Chairman. And, in fact, we have 

already seen impacts on the businesses. I think Chairman Franken 

cited a couple studies in the opening statement that reflected some 

serious financial consequences. I think there are real concerns 

around the entire structure of the Internet over these revelations 

if this is not addressed correctly. 

Chairman LEAHY. Well, let me go a little bit on that. One of my 

biggest concerns about Section 215 phone records is that the legal 

rationale underpinning it has no limiting principle. If all of our 

phone records are relevant to intelligence investigations, then why 

wouldn’t everything be considered relevant? And if that is the case, 

are companies like yours concerned that consumers will not trust 

that their data is safe from unwarranted government intrusion? 

Does Google think about what that might do as far as cloud technology is concerned? 

Mr. SALGADO. That is right, Mr. Chairman. The confusion that 

came out as a result of the June revelations and since then and additional stories I think have led to a real concern, both inside the 

United States and outside of the United States, about what it is 

that is happening and what are the rules that govern it, what is 

the role of the FISA Court, what are the decisions that are coming 

out of that Court. All of those have played a role in the confusion 

and the need for some clarity. 

Chairman LEAHY. Well, especially when NSA handles things so 

carelessly that they let a 29-year-old contractor walk off with all 

their secrets, and so far as I know, nobody has even been reprimanded for that. 

Mr. Bankston, what do you think? 

Mr. BANKSTON. Speaking generally, we think that transparency 

is critical to restoring trust in the U.S. Internet economy and in the 

U.S. Government itself, but that it alone is not sufficient and that 

indeed substantive reform is necessary. CDT supports the bill that 

you have introduced, the USA Freedom Act, and we thank you for 

it. We look forward to working with you and the Committee as it 

moves forward. 

Chairman LEAHY. I am worried about overclassification. I find oftentimes—and every administration has been guilty of this—it is 

easier to classify a mistake rather than trying to explain it. 

Let me ask, Mr. Salgado, are you permitted to tell us whether 

Google has received any FISA Court orders? 
28 

Mr. SALGADO. I am sorry, Mr. Chairman. I would have to decline 

that answer until the bill that we are discussing today has passed. 

Chairman LEAHY. Is our country safer because you cannot answer the question? 

Mr. SALGADO. I cannot imagine the country is safer as a result 

of that. 

Chairman LEAHY. Thank you. That answers my question. 

Mr. Bankston, concerns have been raised that company-by-company reporting of FISA might tip off those we are trying to track, 

but there is a lot of reporting available on criminal surveillance. 

Are national security related investigations sufficiently different 

from criminal investigations so that we have to have this kind of 

secrecy? 

Mr. BANKSTON. I do not believe so, Chairman, no. In the criminal 

context, we are often investigating sophisticated organized criminals and, in fact, sometimes investigating terrorists. And yet we 

have been able to publish and the U.S. Government has been able 

to publish very detailed statistics about how the Government is 

using its authorities, both the Government as a whole and company by company, without any suggestion that that has harmed 

national security. 

And I just want to take the moment to address this issue of 

lumping all of those authorities together. I think that combining 

numbers for targeted FISA intercepts with FISA pen registers, 

with FISA orders for records, with FISA warrants for stored communications, with all the range of national security letters, and 

then combining that with all federal, State, and local law enforcement warrants, wiretaps, pen registers, subpoenas and other court 

orders leads to such a useless number as to be actually detrimental. It is like asking a doctor to attempt to diagnose a patient 

by looking at his shadow. Only the grossest, most obvious abuse, 

if even that, would be evident. 

Chairman LEAHY. And I apologize to Professor Rosenzweig. I 

have not had time. I will submit a question for the record, Mr. 

Bankston, on your argument that companies’ First Amendment 

rights have been violated, the question of prior restraint, the Second Circuit case. Please take a look at the question. I really would 

like your answer for the record. It is important to me. 

Mr. BANKSTON. Thank you, Senator. 

[The question from Chairman Leahy appears as a submission for 

the record.] 

Chairman LEAHY. Thank you. 

Chairman FRANKEN. Thank you, Mr. Chairman. 

Senator Blumenthal. 

Senator BLUMENTHAL. Thank you. Thank you, Mr. Chairman and 

Mr. Chairman. Thank you to both Chairmen. And thank you all for 

being here today. 

I was interested in a number of your points, particularly Mr. 

Salgado, that additional measures are necessary, especially in response to Chairman Leahy’s questions, to not only provide additional transparency but also assure that individual rights are protected. As you know, I have proposed that there be a constitutional 

advocate to, in effect, provide some adversarial process within the 

FISA Court. You know as lawyers courts make better decisions 
29 

when more than one side is presented. Very few judges would permit a proceeding before them in which only one side is presented 

because they know that the core principle of our judicial system is 

that it is adversarial and that the truth emerges as differing points 

of view, factual perspectives, and evidence are presented. And so 

that is one area where I think that the system can be made more 

accountable, if not more transparent, and as well, disclosure of 

some of the rulings and opinions of the Court. Right now it is a 

secret court that operates in secret making secret decisions and secret law—one of the few, if only, courts in the United States where 

there is any secret proceedings of this kind making secret law. 

So let me elicit your comments on those kinds of additional protections to our constitutional rights from the perspective that you 

all have raised about our need for credibility and trust internationally in this system. After all, the means of communication, the 

Internet, depend on international trust and credibility. Otherwise, 

it falls apart. So let me ask that somewhat open-ended question. 

Mr. SALGADO. Well, thank you, Senator. I am happy to take the 

first swipe at that. There are a number of proposals right now that 

are being considered, and that is a very good thing. And the general principles that there needs to be accountability and transparency with some oversight and the rules are clear are addressed 

by the various bills. 

Certainly as an example, making sure that a court that is reviewing applications for surveillance has an opportunity to hear 

different ideas, different sides, that makes perfect sense. And it is 

certainly at the heart of most of the judicial proceedings we have 

in the United States. So that is something that I think makes a 

good deal of sense as far as a structural change to the current arrangement under FISA and the obtaining of FISA authorities. 

The same, of course, is true with understanding the interpretations of the law that the Court applies to the different applications 

that come in. I think those are two good examples of the sorts of 

ideas that can help restore confidence that the system works. 

Mr. ROSENZWEIG. I am actually a fan of the idea of an advocate, 

but for slightly different reasons, I think, than Mr. Salgado just 

said. The reason that we do not have an advocate in the search 

warrant application situation, for example, which is an ex parte application, or in a grand jury situation is because those decisions are 

ultimately subject to ex ante review in a criminal proceeding where 

there is a defense attorney who presents an adversarial view on 

whether or not the issuance of the warrant was with probable 

cause or the grand jury subpoena was overbroad or things like 

that. We lack that systematic check in the intelligence context because, of course, the intelligence surveillance rarely, if ever, results 

in a criminal prosecution in which that kind of adversarial process 

comes forward. 

So to my mind, I would want to distinguish in allowing an advocate between those situations in which the FISA Court were making some broad new systematic determination and interpretation of 

law like the interpretation that gave us the relevance decision in 

the Section 215 law, I would like to distinguish that from what I 

would characterize—and I admit the line is hard to draw—‘‘routinized applications of a settled law,’’ where the value of an adver-
30 

sarial advocate would be much diminished, and the procedural difficulties that would arise from it, the costs involved, the time delay, 

might very well be adverse to national security. So cabined in that 

way, I think that would be a perfectly fine idea. 

And as for the public disclosure, I would offer the exact same answer I gave Senator Flake in the other context, which is provided 

that we make sure that it does not wind up with the adverse effect 

of disclosing heretofore undisclosed programs that are properly 

classified, that would be as well as advancement in our understanding. Again, I admit that is a hard line to draw, and probably 

in both instances the best answer would be to let the FISA Court 

make that decision itself, to authorize the appointment of the advocate in the situations where it wants to, and to authorize them affirmatively or direct them affirmatively to make public disclosures 

when they think the disclosure of an opinion would not adversely 

affect national security interests. 

Mr. BANKSTON. Thank you. The FISA Court’s job used to be pretty straightforward. It was a pretty straightforward statute based 

on some pretty straightforward Fourth Amendment jurisprudence 

addressing some pretty straightforward technologies. 

Now we have the FISA Court addressing an incredibly complex 

and broad statute in the form of the FISA Amendments Act; we 

have a rapidly complexifying technological landscape; and we have 

the FISA Court, rather than simply making magisterial decisions, 

creating a body of common law on some of the hardest and most 

important Fourth Amendment questions of our time, sometimes in 

the face of what the Court has described as misleading conduct by 

the lawyers in front of it. 

In that context, I do believe that it is critically important not 

only to have great transparency regarding the decisions made by 

the Court, but also to have an advocate in front of the Court who 

is there to protect the people. And as such, CDT does support your 

legislation, Senator Blumenthal, and is working with your staff and 

with Chairman Leahy’s staff on the issues that that might bring 

to bear. 

Senator BLUMENTHAL. Thank you all. 

Thank you, Mr. Chairman. 

Chairman FRANKEN. Thank you, Senator Blumenthal. Not to 

speak for you, but I think that the way that Mr. Rosenzweig described the role of a constitutional advocate is very in line with 

what you envision. 

Senator BLUMENTHAL. Very much so. Thank you. 

Chairman FRANKEN. Well, thank you. I want to thank all three 

of you for your testimony, and in closing I want to also thank the 

Ranking Member, Senator Flake, along with Senator Heller and 

Chairman Leahy who lent this legislation critical support. And, of 

course, I want to thank all the witnesses, each and every one of 

them who appeared today. We have heard a lot of valuable testimony. There was a lot that I agreed with. There are some things 

that I did not agree with, but I want to leave everyone with this 

thought: 

There is no question that the American people need more information about these programs. Just no question about that. For democracy to work, its citizens need to have at least a basic amount 
31 

of information about the surveillance their own Government conducts over their affairs. I think that my bill will give the American 

people that transparency, and I am looking forward to continuing 

to work with the administration and my colleagues to make sure 

that we are getting it right. 

We will hold the record open for 1 week for submission of questions for the witnesses and other materials. This hearing is adjourned. 

[Whereupon, at 11:43 a.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

(33) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
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PREPARED STATEMENT OF HON. AL FRANKEN
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PREPARED STATEMENT OF HON. PATRICK J. LEAHY
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PREPARED STATEMENT OF HON. ROBERT S. LITT AND J. BRADFORD WIEGMANN
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PREPARED STATEMENT OF KEVIN S. BANKSTON
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PREPARED STATEMENT OF PAUL ROSENZWEIG
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PREPARED STATEMENT OF RICHARD SALGADO
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QUESTIONS SUBMITTED BY SENATOR LEAHY FOR KEVIN BANKSTON
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QUESTIONS SUBMITTED BY SENATOR FLAKE FOR PAUL ROSENZWEIG
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RESPONSES OF KEVIN BANKSTON TO QUESTIONS SUBMITTED BY SENATOR LEAHY
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RESPONSES OF PAUL ROSENZWEIG TO QUESTIONS SUBMITTED BY SENATOR FLAKE
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MISCELLANEOUS SUBMISSIONS FOR THE RECORD
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