DNI Disclosures Not Enough, Tech Companies, Advocates Say

Leaked information this summer traces such collaboration back to the 1970s. The federal government paid out a high of $394 million in 2011, according to that leaked information. The White House declined to address questions in responding to the “black budget” leaks during a Thursday news briefing. Deputy Press Secretary Josh Earnest said he hadn’t read the report and instead defended the surveillance programs as well as President Barack Obama’s intentions to improve transparency (CD Aug 30 p10). USTelecom members comply with all lawful requests from law enforcement, a spokeswoman told us, declining comment on the program. The association’s board includes executives from AT&T, Verizon, Windstream and several other telcos.

Clapper committed on Thursday to annually releasing surveillance information on the DNI’s Tumblr account (http://bit.ly/146oblC). Clapper has said he will release “aggregate information concerning compulsory legal process under certain national security authorities” every year. The information includes “the total number of orders issued” -- including National Security Letters, orders under Section 702, Title V and Title IV of the Foreign Intelligence Surveillance Act and “FISA orders based on probable cause” -- and “the number of targets affected by these orders” each year, Clapper wrote. “Our ability to discuss these activities is limited by our need to protect intelligence sources and methods."

The promised disclosures don’t go as far as “the public deserves and the Constitution guarantees,” wrote Microsoft General Counsel Brad Smith in a company blog post Friday (http://bit.ly/15cBprR). Detailing attempts by Microsoft and Google to release more information on the surveillance requests they receive, Smith called for specificity in the disclosures. “We believe it is vital to publish information that clearly shows the number of national security demands for user content, such as the text of an email,” he wrote. “These figures should be published in a form that is distinct from the number of demands that capture only metadata such as the subscriber information associated with a particular email address.” Smith also urged Congress “to press for the right of technology companies to disclose relevant information in an appropriate way” and said Microsoft will “move forward with litigation in the hope that the courts will uphold our right to speak more freely."

Google echoed Microsoft’s dissatisfaction with the promised disclosures. “While the government’s decision to publish aggregate information about certain national security requests is a step in the right direction, we believe there is still too much secrecy around these requests and that more openness is needed,” a spokesman said in a statement.

Company disclosures may be more helpful in understanding the surveillance programs and their scope than the DNI disclosures, ACLU Legislative Counsel Michelle Richardson told us. Companies like Microsoft and Google are more likely to engage in “a more wholesome reporting” to inform their users, she said. “What the companies have asked for ... would be more detailed that what the DNI is putting out.” Richardson said she’s optimistic about the chances of the companies succeeding in those requests, both in terms of lawsuits they have filed and bills being considered in Congress. “This is actually seen as one of the more modest proposals,” she said.

DNI should more clearly define “target” when it comes to the disclosed information, Richardson said. The intelligence community needs “to clarify what a target is, because that’s one of those words they use incredibly specifically,” she said. If, in the context of these disclosures, the word target refers to only the person of interest for the intelligence community, the word target “doesn’t mean the number of people that can be swept up” in the surveillance programs, she said. “The DNI should be releasing the exact number of innocent Americans’ communications the NSA collects -- inadvertently or otherwise,” Electronic Frontier Foundation Policy Analyst Mark Jaycox told us. “This will go a long way towards showing that the spying is both illegal and unconstitutional."

The disclosures being outlined by the DNI may not shed significant light on the topic of government surveillance in the U.S., Richardson said. “A lot of these are already being publicly reported.” For instance, FISA orders based on probable cause are already reported to the House and Senate Judiciary committees in letters from the Department of Justice, she said. If the numbers are simply reported without context -- including the definition of target -- Richardson said she’s “suspicious that these sorts of numbers will confuse people.” Jaycox agreed, saying, “the American people, even with such a release, will have many more questions than answers.” -- Kate Tummarello (ktummarello@warren-news.com), John Hendel