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Internet Policy Experts Call for More Oversight of Surveillance

BY Miranda Neubauer | Friday, June 21 2013

A group of Internet policy and privacy experts urged Congress to take a more active role in ensuring oversight and transparency of government surveillance efforts as they explored the mechanics of those programs, how they aid law enforcement and how they impact the privacy of every-day Americans at a panel geared towards Congressional staff.

Hosting the panel was the Advisory Committee to the Congressional Internet Caucus, a group of around 200 public interest and Internet industry organizations that seek to educate about Internet policy, with funding from the Internet Education Foundation.

The panelists at Friday's event were Mary Ellen Callahan, partner at Jenner & Block and former chief privacy officer of the United States Department of Homeland Security; Alan Davidson, visiting scholar at MIT and formerly director of public policy for Google in the Americas; Michelle Richardson, legislative counsel at the ACLU; Julian Sanchez, research fellow at the Cato Institute; and Mike Vatis, partner at Steptoe & Johnson LLP, who was the founding director of the National Infrastructure Protection Center at the FBI and also served as Associate Deputy Attorney General and Deputy Director of the Executive Office for National Security in the Department of Justice.

In several instances, the panelists encouraged attendees to read the details revealed by the Guardian and other outlets even though in theory many government officials are not supposed to read still-classified information.

"The issue is not whether government is going to get access to data, to e-mails, to the contents of conversations when it needs to," Davidson said. "The question for Congressional staff is what are the rules, what are the standards that apply and when should companies be required to turn this information over."

The panel was convened to discuss information coming to light after former NSA contractor Edward Snowden leaked a series of classified documents to the Guardian. According to the documents, officials are under one program gaining access to records that outline who millions of Americans call and for how long. Under another program, authorized under a separate section of the law, officials request data like email messages from companies like Google and Facebook under the authority of secret court orders. Under that program — now referred to as "PRISM" after the software officials use to manage the billions if pieces of data they collect through their activities, according to documents released by the Guardian — Americans' communications are not supposed to be captured, and when they are, they are supposed to be deleted except in any one of several of broadly defined sets of circumstances.

Sanchez said the disclosures indicated that the venue for conversations about what is and isn't justified surveillance has changed in a fundamental way.

"I think that's frankly a dangerous shift," he said. "[The Fourth Amendment] was centrally about moving discretion in searches from executive agents to neutral magistrates, instead of letting the agents decide which homes to search and having some kind of backend review to make sure they weren't indiscriminately searching too many homes," he said.

Vatis questioned whether Congress, given the limited amount of information it is given and the relative few who get it, and the Foreign Intelligence Surveillance Court, both of which conduct their review of NSA activity in secret, were adequate watchdogs of the program and its "minimization" procedures — internal failsafes designed to keep innocent Americans' daily communications out of the hands of spies.

"To me a key question is, can you have meaningful oversight when most things are classified, and so few people have access to them, so people are left wondering what the minimization and targeting procedures are," he said.

Richardson emphasized that the court proceedings "are not adversarial proceedings, nobody is representing the interests of the people whose records are collected, it's just the government before a secret court."

She added that this is an area of law that has not been litigated and decided by public courts.

"These [court] decisions have to be brought out to the light," she said. "Congress has allowed the intelligence committees to do secret oversight of secret programs allowed under secret court orders, and it has led to the collection of every American's phone calls."

The White House has asked the Department of Justice and Director of National Intelligence to consider declassifying FISA court decisions.

Panelists disagreed on how satisfied they were by the administration's response to the Snowden leaks. The panelists also differed on what broader impact the revelations would have internationally and on U.S. business, with opinions ranging from irreparable damage to relations with the EU to little change at all.

Vatis doubted long-lasting damage for anyone.

"Of course [the Europeans] are going to complain, they always complain but note that the complaints are principally coming from EU officials in Brussels and they're not coming from the presidents or prime ministers of the member states. Why? They benefit tremendously from these programs, they get information from us about terror plots in their countries," he said.

In terms of the companies, he also saw no lasting damage. "How many people stopped using Gmail or Yahoo? Very few," he said.

While there might be short-term counterterrorism damage, he said he doubted long-term effects.

"Our adversaries have to communicate," he said. Even if they make more of an effort to escape surveillance, "10 percent of the time they are going to slip up for the sake of convenience."

"The damage I see is to open society and democracy," he said. "If so few people in the legislative branch really understand what these programs do and know the details of these, that's a problem."