Improving Transparency

Currently, the U.S. Intelligence Community discloses some data that outlines the scope and scale of their intelligence collection efforts. For example, the Office of Civil Liberties, Privacy, and Transparency of the Office of the Director of National Intelligence (ODNI) publishes its annual Statistical Transparency Report Regarding Use of National Security Authorities, which features data on FISA probable cause court orders and targets; FISA Section 702–related orders, targets, and U.S. person queries; national security letters; and more.¹ Most of the data in the ODNI’s annual transparency report is disclosed based on legal requirements in FISA. However, the ODNI report also includes some data points whose disclosure is not mandated by FISA. FISA also requires the government to submit further reports to Congress, but much of this information remains classified and therefore unavailable to the public.

Companies that receive requests for user data from the government, such as technology and telecommunications companies, also publish some data around the requests they receive. This has become an industry-wide best practice for technology companies.² However, these platforms face constraints around what kind of data they can report on. In particular, companies that receive demands for customer data under FISA can only report statistics describing the type and number of demands they receive on an aggregated basis, using specified numerical bands such as 0 to 499 and 500 to 1,000.³

Greater transparency for the rules governing U.S. surveillance and the scope and scale of data collection would help promote accountability, and provide a check to show that collection is proportionate to intelligence needs. In particular with regard to collection under Section 702, the government should disclose the categories that are the subjects of the certifications approved by the FISA Court. Thus far, the Intelligence Community has disclosed that these subjects include counterterrorism and addressing weapons of mass destruction, but they have not declassified the full list of categories covered by the Section 702 certifications.

While greater transparency is needed⁴ and will benefit U.S. and non-U.S. persons alike, it is important to note that any transparency measures should serve as a supplement to efforts to reform collection, targeting, and minimization rules. Transparency mechanisms alone will not be enough to satisfy the CJEU’s concerns.