Page 162 - Privacy in a Cyber Age Policy and Practice

150 PRIVACY IN A CYBER AGE

enhanced transparency. (I will also suggest a particular means for strengthening
accountability.)

2. The Limits of Enhancing Transparency

Enhanced transparency entails releasing more information about details
of the surveillance programs to the media and hence to the public, as well
as to members of Congress in general (rather than only to a select few
with security clearance who serve on specialized committees). Following
the revelations of the NSA programs in 2013, there was very consider-
able demand for such disclosures, that is, for increased transparency. 206
The president’s aides stated that they were going to try to be even more
transparent, 207 and the government released additional information 208 on
top of the continued stream of leaks. Over a quarter of the Senate signed a
letter urging the White House to be more transparent about its surveillance
practices. 209
There are some potential ways that transparency could be enhanced.
For example, the government might release summaries of the FISA rul-
ings that justify its programs without going into specifics of the facts on
which these cases are based and that concern the government’s knowledge
about specific suspects. The government has begun, since the revelations
in 2013, to make moves toward such transparency. A judge on the nation’s
intelligence court directed the government to review the possibility of pub-
licly releasing some of the court’s presently classified opinions regarding
the NSA’s phone records collection program. 210 The Office of the Director
of National Intelligence has developed a web page at which it makes pub-
lic formerly classified material that helps to explain the way the programs
in question function. 211 Director James Clapper also stated that his office
would release additional information regarding the number of secret court
orders and national security letters sent out each year in the process of
collecting data, as well as the number of people such searches affected. 212
High transparency, however, is on the face of it incompatible with keep-
ing secret that which must be kept secret. Moreover, when the government
responds to calls for more scrutiny by releasing more information—so as to
demonstrate that the secret acts did, in fact, improve security and did not
unduly violate privacy—these releases encounter several difficulties. First,
each piece of information released potentially helps the adversaries. This
is, in effect, the way intelligence work is often done: by piecing together
details released by various sources. Thus, the publication of informa-
tion about which past terrorist operations the government aborted could
allow those groups to find out which of their plots failed because of U.S.