Justice Department’s Transparency Announcement: A Strong Step Forward But More Work To Be Done

Justice Department’s Transparency Announcement:
A Strong Step Forward But More Work To Be Done
By Kevin Bankston

On Monday, the US Department of Justice announced a resolution to the free speech challenge brought before the secretive Foreign Intelligence Surveillance Court by tech companies including Google, Microsoft, Facebook, Yahoo, and LinkedIn.  The companies have been pressing for their right to publish statistics about the various FISA court orders they receive demanding disclosure to the government of their users data.  The Justice Department announced that it would allow the companies to publish combined statistics about the number of FISA orders they receive, the number of targets whose data is being sought, and the number of requests that pertain to the actual content of communications or non-content metadata about communications.

Today’s announcement by the Justice Department, allowing Internet companies to publish more than they ever have before about what they do and don’t do when the government demands their users’ data, represents an important victory in the fight for greater transparency around the NSA’s surveillance programs.  Transparency is the first step toward accountability and we are incredibly pleased to see the Obama Administration taking steps to give the public a more meaningful window into how the government is using its surveillance powers, and how the Internet industry is responding.

However, this is only a single battle won in a much longer fight, because the commitment made by the Justice Department today falls far short of the level of transparency that an unprecedented coalition of Internet companies, privacy advocates and civil liberties organizations called for this summer.  As that coalition made clear in July, meaningful transparency means giving companies the ability to publish the specific number of requests they receive for specific types of data under specific legal authorities.  Fuzzing the numbers into ranges of a thousand, and even worse, lumping all of the different types of surveillance orders into a single number, serves no national security purpose while making it impossible to effectively evaluate how those powers are being used.  Asking the public and policymakers to try and judge the appropriateness of the government’s surveillance practices based on a single, combined, rounded number is like asking a doctor to diagnose a patient’s shadow: only the grossest and most obvious problem, if even that, will ever be evident.

Therefore, although we applaud the announcement as an important first step, we look forward to continuing our work with the Internet industry and the free speech and privacy community to press Congress and the Administration for reforms that will allow companies and require the government to publish more meaningful basic data about the scope and nature of the government’s surveillance practices.  Similar data has been published for years about law enforcement investigations without disrupting any criminal investigations, and the same data should and can be published for national security investigations.

Kevin Bankston, the Policy Director of New America’s Open Technology Institute, one of several free speech lawyers who signed a legal brief to the FISA court supporting the tech companies’ case, organized a coalition of Internet companies and rights organizations to press for greater surveillance transparency, and recently testified to Congress on the issue.