THE ADMINISTRATION’S USE OF FISA AUTHORITIES HEARING BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION JULY 17 2013 Serial No 113–45 Printed for the use of the Committee on the Judiciary Available via the World Wide Web http judiciary house gov U S GOVERNMENT PRINTING OFFICE 81–982 PDF WASHINGTON 2013 For sale by the Superintendent of Documents U S Government Printing Office Internet bookstore gpo gov Phone toll free 866 512–1800 DC area 202 512–1800 Fax 202 512–2104 Mail Stop IDCC Washington DC 20402–0001 COMMITTEE ON THE JUDICIARY BOB GOODLATTE F JAMES SENSENBRENNER JR Wisconsin HOWARD COBLE North Carolina LAMAR SMITH Texas STEVE CHABOT Ohio SPENCER BACHUS Alabama DARRELL E ISSA California J RANDY FORBES Virginia STEVE KING Iowa TRENT FRANKS Arizona LOUIE GOHMERT Texas JIM JORDAN Ohio TED POE Texas JASON CHAFFETZ Utah TOM MARINO Pennsylvania TREY GOWDY South Carolina MARK AMODEI Nevada RAUL LABRADOR Idaho BLAKE FARENTHOLD Texas GEORGE HOLDING North Carolina DOUG COLLINS Georgia RON DeSANTIS Florida JASON T SMITH Missouri Virginia Chairman JOHN CONYERS JR Michigan JERROLD NADLER New York ROBERT C ‘‘BOBBY’’ SCOTT Virginia MELVIN L WATT North Carolina ZOE LOFGREN California SHEILA JACKSON LEE Texas STEVE COHEN Tennessee HENRY C ‘‘HANK’’ JOHNSON JR Georgia PEDRO R PIERLUISI Puerto Rico JUDY CHU California TED DEUTCH Florida LUIS V GUTIERREZ Illinois KAREN BASS California CEDRIC RICHMOND Louisiana SUZAN DelBENE Washington JOE GARCIA Florida HAKEEM JEFFRIES New York SHELLEY HUSBAND Chief of Staff General Counsel PERRY APELBAUM Minority Staff Director Chief Counsel II CONTENTS JULY 17 2013 Page OPENING STATEMENTS The Honorable Bob Goodlatte a Representative in Congress from the State of Virginia and Chairman Committee on the Judiciary The Honorable John Conyers Jr a Representative in Congress from the State of Michigan and Ranking Member Committee on the Judiciary 1 3 WITNESSES James Cole United States Department of Justice Oral Testimony Robert S Litt Office of Director of National Intelligence Oral Testimony John C Inglis National Security Agency Oral Testimony Stephanie Douglas FBI National Security Branch Oral Testimony Stewart A Baker Steptoe Johnson LLP Oral Testimony Prepared Statement Jameel Jaffer American Civil Liberties Union ACLU Oral Testimony Prepared Statement Steven G Bradbury Dechert LLP Oral Testimony Prepared Statement Kate Martin Center for National Security Studies Oral Testimony Prepared Statement 6 8 9 12 67 69 84 86 102 104 110 112 LETTERS STATEMENTS ETC SUBMITTED FOR THE HEARING Material submitted by the Honorable F James Sensenbrenner Jr a Representative in Congress from the State of Michigan and Member Committee on the Judiciary 18 APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD Questions for the Record submitted to James Cole United States Department of Justice Robert S Litt Office of Director of National Intelligence John C Inglis National Security Agency and Stephanie Douglas FBI National Security Branch Response to Questions from the Hearing from Stewart A Baker Steptoe Johnson LLP Response to Questions for the Record from Jameel Jaffer American Civil Liberties Union ACLU Response to Questions from the Hearing and for the Record from Kate Martin Center for National Security Studies III 136 138 139 141 THE ADMINISTRATION’S USE OF FISA AUTHORITIES WEDNESDAY JULY 17 2013 HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY Washington DC The Committee met pursuant to call at 10 11 a m in room 2141 Rayburn House Office Building the Honorable Bob Goodlatte Chairman of the Committee presiding Present Representatives Goodlatte Sensenbrenner Coble Smith of Texas Chabot Bachus Forbes King Gohmert Poe Chaffetz Gowdy Labrador Farenthold Holding Collins DeSantis Conyers Nadler Scott Lofgren Jackson Lee Cohen Johnson Chu Deutch DelBene Garcia and Jeffries Staff Present Majority Shelley Husband Chief of Staff General Counsel Branden Ritchie Deputy Chief of Staff Chief Counsel Allison Halataei Parliamentarian General Counsel Caroline Lynch Sam Ramer Majority Counsel Kelsey Deterding Clerk Minority Perry Apelbaum Minority Staff Director Chief Counsel Danielle Brown Parliamentarian and Aaron Hiller Counsel Mr GOODLATTE Good morning The Judiciary Committee will come to order And without objection the Chair is authorized to declare recesses of the Committee at any time We welcome everyone to this morning’s hearing on oversight of the Administration’s use of FISA Authorities and I will begin by recognizing myself for an opening statement Today’s hearing will examine the statutory authorities that govern certain programs operated under the Foreign Intelligence Surveillance Act or FISA Since the unauthorized public release of these programs many Members of Congress and their constituents have expressed concern about how these programs are operated and whether they pose a threat to Americans’ civil liberties and privacy We have assembled two panels of witnesses today to help us explore these important issues Last month Edward Snowden an unknown former NSA contractor and CIA employee released classified material on top secret NSA data collection programs On June 5th the Guardian released a classified order issued by the Foreign Intelligence Surveillance Court requested by the FBI to compel the ongoing production for a 3-month period of call detail records or telephony metadata Telephony metadata includes the numbers of both parties on a call unique identifiers and the time and duration of all calls 1 2 On June 6th classified information regarding a second program the PRISM program was reported by the Guardian and the Washington Post News reports described the program as allowing the NSA to obtain data from electronic service providers on customers who reside outside the United States including email chat photos videos stored data and file transfers Both of these programs are operated pursuant to statutory provisions in FISA or the FISA Amendments Act FISA was enacted to provide procedures for the domestic collection of foreign intelligence When FISA was originally enacted in 1978 America was largely concerned with collecting intelligence from foreign nations such as the Soviet Union or terrorist groups like the FARC in Colombia FISA set forth procedures for how the Government can gather foreign intelligence inside the United States about foreign powers and their agents The intelligence landscape has changed dramatically over the last 30 years Today we are confronted with ongoing threats from terrorist organizations some of which are well structured but most of which are loosely organized as well as threats from individuals who may subscribe to certain beliefs but do not belong to a specific terrorist group The FISA business record provision often referred to as Section 215 of the PATRIOT Act allows the FBI to access tangible items including business records in foreign intelligence international terrorism and clandestine intelligence investigations Unlike grand jury or administrative subpoenas in criminal investigations which can simply be issued by a prosecutor a FISA business records order must first be approved by a Federal judge Similar to grand jury or administrative subpoenas a FISA business record order cannot be used to search a person’s home to acquire the content of emails or listen to telephone calls It can only be used to obtain third-party records Critics of the metadata program object to its breadth namely the ongoing collection of all customers’ telephony metadata and question whether this program conforms to Congress’ intent in enacting Section 215 of the PATRIOT Act I hope to hear from today’s witnesses about this about how the collection of this metadata is relevant to a foreign intelligence or terrorism investigation and about whether a program of this size is valuable and cost effective in detecting and preventing terrorist plots In the 40 years since FISA enactment communications technologies have changed dramatically and revolutionized the transmission of international communications The shift from wireless satellite communications to fiber optic wire communications altered the manner in which foreign communications are transmitted The use of wire technology inside the United States to transmit a telephone call that takes place overseas had the unintended result of requiring the Government to obtain an individualized FISA court order to monitor foreign communications by non-U S persons Congress enacted in 2008 and reauthorized just last year the bipartisan FISA Amendments Act to update our foreign intelligence laws The FAA permits the Attorney General and the Director of National Intelligence to target foreign persons reasonably believed to be located outside the United States to acquire foreign intelligence 3 information The act requires for the first time in U S history prior court approval of all Government surveillance using these authorities including court approval of the Government’s targeting and minimization procedures The PRISM program derives its authority from Section 702 of the FAA It involves the collection of foreign intelligence information about non-U S persons located outside the United States To the extent the program captures information pertaining to U S citizens such interception can only be incidental and the handling of such information is governed by court-approved minimization procedures I look forward to hearing from our witnesses today in greater detail about how the Government limits its targeting under 702 to non-U S persons outside the U S and a description of the oversight performed by the Administration and the FISC of this program including the effectiveness of the current auditing of Section 702 The terrorist threat is real and ongoing The Boston bombing reminded us all of that I am confident that everyone in this room wishes that tragedy could have been prevented We cannot prevent terrorist attacks unless we can first identify and then intercept the terrorist However Congress must ensure that the laws we have enacted are executed in a manner that is consistent with congressional intent and that protects both our national security and our civil liberties We must ensure that America’s intelligence gathering system has the trust of the American people It is now my pleasure to recognize the Ranking Member of the full Committee the gentleman from Michigan Mr Conyers for his opening statement Mr CONYERS Thank you Chairman Goodlatte and Members of the Committee We are on Judiciary which is the Committee of primary jurisdiction for both of the authorities we are here to discuss today Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act Over the past decade the Members of this Committee have vigorously debated the proper balance between our safety and our constitutional right to privacy And so I join in welcoming the two panels—four each very fairly made up—to this discussion today I think it is an important one But we never at any point during this debate have approved the type of unchecked sweeping surveillance of United States citizens employed by our Government in the name of fighting the war on terrorism Section 215 authorizes the Government to obtain certain business records only if it can show to the FISA court that the records are relevant to an ongoing national security investigation Now what we think we have here is a situation in which if the Government cannot provide a clear public explanation for how its program is consistent with the statute then it must stop collecting this information immediately And so this metadata problem to me has gotten quite far out of hand even given the seriousness of the problems that surround it and created its need Now I have another concern that pertains to the Administration’s track record of responding to the criticisms of these programs We 4 know Director Clapper’s misstatements and others National Security Agency Director General Keith Alexander had to make retractions Even FBI Director Robert Mueller is not empowered to rewrite history But what we have is our conversation which requires focusing on improving both more public scrutiny and congressional oversight of these programs Over the last few weeks the Administration has asserted that its conduct of this surveillance with congressional support because they have briefed some Members of these programs in the past But that is not sufficient since we are in a catch-22 situation in a classified briefing in a secure setting and we cannot discuss it publicly certainly not even with our constituents But if we skip the briefing we risk being uninformed and unprepared One simple solution to this problem would be to publicly release significant FISA court opinions or at the very least unclassified summaries of these opinions This solution would have the added benefit of subjecting the Government’s legal claims to much-needed public scrutiny Over the past decade the court has developed a body of law that instructs the Government about what it may do with the information it collects There is no legitimate reason to keep this legal analysis from public interest any longer And if we are to strike the right balance with these surveillance authorities which I think is an important purpose of the hearing today then we must bring the public into the conversation as soon as it is appropriate and without delay And I am not talking about releasing any classified information Instead of simply asking our constituents to trust us I am asking you and the executive branch to trust them And the need for more declassification I think is very dominant in my opinion as to how we should move this today And I thank the Chair Mr GOODLATTE I thank the Ranking Member for his comments and would say in regard I share his concern about some classified information that does not need to be classified I also would say that because of the nature of the questions that we would like to ask some of which cannot be asked or answered here in an open hearing we will definitely be planning a second hearing on this subject where we can ask those questions in a classified setting to again assure ourselves of the answers that we need Before we begin with questions for our witnesses I want to stress that the—oh first of all without objection all our Members’ opening statements will be made a part of the record Before we begin with questions for our witnesses I must stress that the programs this hearing is addressing remain classified I expect the witnesses appearing before us today particularly on our first panel to answer questions from Members with as much candor as possible given the unclassified setting But I also wish to caution Members of the Committee that they should be cognizant of this unique dynamic when phrasing their questions The simple fact that certain programs have been leaked does not mean that they have been declassified and Members and 5 witnesses alike would be violating the law were they to disclose classified information during this hearing I would also like to note that the Committee intends to hold a subsequent classified briefing for Members so that we have an opportunity to more closely examine those programs and pose questions to our witnesses that are not appropriate in this open setting We welcome our first panel today And if you would all please rise we will begin by swearing in the witnesses Witnesses sworn Mr GOODLATTE Thank you very much Let the record reflect that all of the witnesses responded in the affirmative and we will now proceed to introduce our witnesses Our first witness is Mr James Cole the Deputy Attorney General of the United States at the Department of Justice Mr Cole first joined the agency in 1979 as part of the Attorney General’s Honors Program and served the department for 13 years as a trial lawyer in the Criminal Division He entered private practice in 1992 and was a partner at Bryan Cave LLP from 1995 to 2010 specializing in white-collar defense Mr Cole has also served as chair of the American Bar Association White Collar Crime Committee and as chair-elect of the ABA Criminal Justice Section Mr Cole received his bachelor’s degree from the University of Colorado and his juris doctor from the University of California at Hastings We are fortunate to have him and his expertise with us today Our second witness is Mr Robert S Litt the second general counsel of the Office of the Director of National Intelligence Previously Mr Litt was a partner at Arnold Porter LLP and served as a member of the Advisory Committee to the Standing Committee on Law and National Security at the American Bar Association From 1994 to 1999 he served as Deputy Assistant Attorney General at the U S Department of Justice where he worked on issues of national security including FISA applications He began his legal career as a clerk for Judge Edward Weinfeld of the Southern District of New York and Justice Potter Stewart of the United States Supreme Court Mr Litt earned his bachelor’s degree from Harvard University and his law degree from Yale We welcome his experience and expertise The third member of our first witness panel is Mr John C Inglis the Deputy Director and senior civilian leader of the National Security Agency acting as the agency’s Chief of Operations Mr Inglis began his career at NSA as a computer scientist within the National Computer Security Center Promoted to NSA’s Senior Executive Service in 1997 he subsequently served in a variety of senior leadership assignments and twice served away from NSA headquarters first as a visiting professor of computer science at the United States Military Academy and later as the U S special liaison to the United Kingdom Mr Inglis is a graduate of the United States Air Force Academy subsequently completing 9 years of active service and 21 years as a member of the Air National Guard He holds advanced degrees in engineering and computer science from Columbia University 6 Johns Hopkins University and the George Washington University And we thank him for joining us and sharing his expertise as well And finally on the first panel Ms Stephanie Douglas Executive Assistant Director of National Security Branch of the Federal Bureau of Investigations Ms Douglas began as a special agent with the FBI in November 1989 She first reported to the Washington Field Office where she worked violent crime public corruption and national security matters Before returning to the FBI headquarters in 2007 she served as an FBI detailee to the CIA’s Counterintelligence Center as well as supervisory special agent for a counterintelligence squad at the Washington Field Office directing sensitive national security investigations Before assuming her current post Ms Douglas was special agent-in-charge of the San Francisco Division Ms Douglas earned her bachelor’s degree in history at the University of Tennessee and we are pleased to have her share her expertise with us today as well We thank all of you for joining us and we will turn first to Mr Cole for his testimony TESTIMONY OF JAMES COLE UNITED STATES DEPARTMENT OF JUSTICE Mr COLE Thank you Mr Chairman Mr Ranking Member and Members of the Committee for inviting us here to speak about the 215 business records program and Section 702 of FISA With these programs and other intelligence activities we are constantly seeking to achieve the right balance between the protection of national security and the protection of privacy and civil liberties We believe these two programs have achieved the right balance First of all both programs are conducted under laws passed by Congress Neither is a program that has been hidden away or off the books In fact all three branches of Government play a significant role in the oversight of these programs The judiciary through the Foreign Intelligence Surveillance Court plays a role in authorizing the programs and overseeing compliance The executive branch conducts extensive internal reviews to ensure compliance And Congress passes the laws and oversees our implementation of those laws and determines whether or not the current law should be reauthorized and in what form I would like to explain in more detail how this works with respect to each of the two programs The 215 program as many of you have already heard involves the collection of metadata from telephone calls These are telephone records maintained by the phone companies They include the number that was dialed the date and time of the call and the length of the call They do not include names or other personal identifying information They do not include cell site or other location information and they do not include the content of any phone calls These are the kinds of records that under longstanding Supreme Court precedent are not protected by the Fourth Amendment The short court order that you have seen published in the newspapers only allows the Government to acquire these phone records It does 7 not allow the Government to access or use them That is covered by another more detailed court order That court order provides that the Government can only search the data if it has a reasonable articulable suspicion that the phone number being searched is associated with certain terrorist organizations Deputy Director Inglis will explain in more detail how this process works But suffice it to say that there are many restrictions imposed on NSA to ensure that only properly trained analysts may access the data and that they can only access it with reasonable articulable suspicion as a predicate and when it has been met and documented The documentation of the analysts’ justification is important It exists so that it can be reviewed by supervisors before the search is done and audited afterwards to ensure compliance with the court’s orders In the criminal context the Government could obtain these types of records with a grand jury subpoena without going to court But here we go to court every 90 days to seek the court’s authorization to collect the records As part of the renewal process we inform the court whether there have been any compliance problems And if there have been the court will take a very hard look and make sure we have corrected these problems As we have explained before the 11 judges on the FISA court are far from rubber stamps Instead they review all of our pleadings thoroughly They question us and they don’t sign off until they are satisfied that we have met all statutory and constitutional requirements The 702 program is different Under that program the Government does collect content of communications Under 702 the Government applies to the FISA court for an order allowing it to collect the communications of non-U S persons reasonably believed to be overseas This order lasts for 1 year The statute does not allow us to collect—or excuse me does allow us to collect—communications even if the person on the other end of that phone call or email is in the United States or a U S person but only if that is the result of a non-U S person outside the United States having initiated the call Importantly the statute explicitly prohibits us from what is known as ‘‘reverse targeting ’’ We can’t use Section 702 indirectly to obtain the communications of U S persons anywhere or any persons located in the United States by targeting a non-U S person overseas Moreover all U S person information collected is subject to what we call minimization rules These rules are designed to restrict the dissemination the use and the retention of the information about U S persons collected These rules are reviewed and approved by the court every year to ensure that we are handling U S person information in a manner consistent with the statute and the Fourth Amendment Both programs involve significant oversight by all three branches of Government The FISA court reviews and approves the certifications and the Government’s targeting and minimization rules and it oversees the Government’s compliance with these rules the statute and the Fourth Amendment 8 Within the executive branch multiple parts of the Government— NSA its Inspector General the Office of the Director of National Intelligence and the Department of Justice—conduct robust compliance reviews and provide extensive reports on implementation and compliance to the FISA court and to the Intelligence and Judiciary Committees And Congress conducts oversight decides whether to reauthorize the 702 authority as it did in 2012 and as it did with 215 authority in 2011 We take very seriously our responsibility to the American people to implement these programs in a manner that complies with all laws and the Constitution and strikes the right balance between protecting their safety and their privacy I know others on the panel have brief statements to make and then we are all ready to answer any questions you may have Thank you Mr GOODLATTE Thank you Mr Cole Mr Litt welcome TESTIMONY OF ROBERT S LITT OFFICE OF DIRECTOR OF NATIONAL INTELLIGENCE Mr LITT Thank you Mr Chairman Mr Ranking Member We appreciate your having this hearing We think it is very important to correct some of the misimpressions that have been created about these activities which as the Deputy Attorney General explained are entirely lawful and appropriate for protecting the Nation In my opening statement I would like to make three related points about the Foreign Intelligence Surveillance Court The first is that the activity that this court regulates which is the acquisition of foreign intelligence for national security purposes was historically outside of all judicial supervision In fact courts have held that the Fourth Amendment does not require a warrant at all for the conduct of surveillance for foreign intelligence purposes FISA was passed in 1978 and at that time established for the first time a requirement that we get a judicial order in order to conduct certain kinds of foreign intelligence or counterintelligence activities within the United States But at the time FISA was passed it was clear that the Congress did not intend that FISA would cover electronic surveillance directed at non-U S persons outside of the United States for foreign intelligence purposes And as you noted in your opening statement because of technological changes in the way international communications are carried over time more and more such surveillance—that is to say foreign intelligence surveillance directed at non-U S persons outside of the United States—more and more of that began to fall within the technical definitions that required FISA court approval even though that was not what Congress had intended So in the FISA Amendments Act Congress set up the procedure of Section 702 which the Deputy Attorney General described to provide a degree of judicial supervision over some kinds of foreign intelligence surveillance of foreigners outside the United States 9 Properly viewed then Section 702 is not a derogation of the authority of the FISA court but an extension of the court’s authority over a type of surveillance that Congress originally had not intended would be subject to the court at all The extent to which this Nation involves the courts in foreign intelligence surveillance goes well beyond what is required by the Fourth Amendment and I think beyond what other countries require of their intelligence services The second point I want to make is to forcefully rebut the notion that some have advanced that the FISA court is a rubber stamp It is true that the court approves the vast majority of applications that the Government presents to it But that does not reflect any lack of independence or lack of care on the part of the court Quite the contrary the judges of the court and their full-time professional staff review each application carefully ask questions and can request changes or limitations And an application is not signed unless and until the judge is satisfied that the application complies with the statute and the Fourth Amendment And these are some of the best and most experienced Federal judges in the country and they take seriously their twin obligations to protect national security and to protect individual rights Finally we agree with the Ranking Member and the Chairman that we should strive for the maximum possible transparency about the activities of the court consistent with the need to protect sensitive sources and methods We have been working for some time to declassify the court’s opinions to the extent possible But legal discussions and court opinions don’t take place in a vacuum They derive from the facts of the particular case And I want to quote here from Judge Walton who is now chief judge of the FISA court who said in a letter to the Senate Intelligence Committee ‘‘Most FISC opinions rest heavily on the facts presented in the particular matter before the court Thus in most cases the facts and legal analysis are so inextricably intertwined that excising the classified information from the FISC’s analysis would result in a remnant void of much or any useful meaning ’’ That is an excellent and pithy summary of the challenge we face in trying to declassify these opinions Of course as you know we do provide copies of all significant opinions of the FISC to the Judiciary and the Intelligence Committees of both houses And I can tell you that in light of the recent disclosures we are redoubling our efforts to try to provide meaningful public insight into the rulings of the FISA court again to the extent we can do that consistent with the need to protect our intelligence activities With that Mr Chairman I am glad to answer any questions that you have Thank you Mr GOODLATTE Thank you Mr Litt Mr Inglis welcome TESTIMONY OF JOHN C INGLIS NATIONAL SECURITY AGENCY Mr INGLIS Good morning sir 10 Mr Chairman Mr Ranking Member Members of the Committee thank you for the opportunity to join with my colleagues here today from the executive branch to brief and discuss with the Committee issues that you have identified in your opening remarks I am privileged today to represent the work of thousands of NSA intelligence community and law enforcement personnel who employ the authorities provided by the combined efforts of the Congress Federal courts and the executive branch For its part NSA is necessarily focused on the generation of foreign intelligence But we have worked hard and long with counterparts across the U S Government and our allies to ensure that we discover and connect the dots exercising only those authorities explicitly granted to us and taking care at once to ensure the protection of civil liberties and privacy In my opening remarks I would like to briefly review the two NSA programs leaked to the media a little more than a month ago their purpose and the controls imposed on their use—the so-called 215 program authorizing the collection of telephone metadata and the so-called PRISM program authorized under Section 702 of the Foreign Intelligence Surveillance Act Amendment Let me first say that these programs are distinguished but complementary tools with distinct purposes in oversight mechanisms Neither of the programs was intended to stand alone delivering singular results that tells the whole story about a particular threat to our Nation or its allies Useful intelligence the kind decision-makers should use as the foundation of thoughtful action is usually the product of many leads—some of which focus and sharpen the collection of additional data some of which help connect and make sense of that data and the sum of which is intended to yield the decisive and actionable conclusions that enable timely and precise employment of traditional instruments of national power such as law enforcement and diplomacy The first program which we undertake under Section 215 of the PATRIOT Act as you heard described earlier today authorizes the collection of telephone metadata only It does not allow the Government to listen to anyone’s phone calls The program was specifically developed to allow the U S Government to detect communications between terrorists who are operating outside the United States and who are communicating with potential operatives inside the United States a gap highlighted by the attacks of 9 11 In a phrase this program is designed and solely focused on the seam between foreign terrorist organizations and the U S homeland However useful the data might be that is acquired under this program for other purposes its use for any other purpose is prohibited The metadata acquired and stored under this program may be queried only when there is a reasonable articulable suspicion one that you can describe and write down based on specific facts that a selector which is typically a phone number is associated with a specific foreign terrorist organization During 2012 we only initiated searches for information in this dataset using fewer than 300 unique identifiers The information 11 returned from these searches only included phone numbers not the content the identity or location of the called or calling party Under rules approved by the court only 22 people at NSA are allowed to approve the selectors used to initiate the search in this database All queries are audited Only 7 positions at NSA a total of 11 people are authorized to release the query results believed to be associated with persons in the United States Reports are filed with the court every 30 days that specify the number of selectors that have been approved and the disseminations made to the FBI of reports that contain numbers believed to be in the U S The Department of Justice conducts onsite review of the program every 90 days The executive branch the Department of Justice reports to the court and the Congress on renewal orders every 90 days with an update on types of records sought received or denied on an annual basis The second program which we operate under Section 702 of the FISA—the Foreign Intelligence Surveillance Act—authorizes the collection of communications for the purpose of foreign intelligence with the compelled assistance of electronic communications service providers sometimes called telecommunications providers Under this authority NSA can collect communications for foreign intelligence purposes only when the person who is the target of our collection is a foreigner who is at that moment outside the United States As you have heard earlier we cannot use this authority to intentionally target any U S citizen or other U S person any person known to be in the United States a person outside the United States if our purpose in targeting that person is to acquire information from a person inside the United States This program has been key to our counterterrorism efforts More than 90 percent of information to support the 50 disruptions that you will hear my colleague from the FBI briefly describe came from Section 702 authorities A bit more about oversight The oversight on these programs operates under controls both internal and external to NSA including actions taken by the Department of Justice the Office of the Director of National Intelligence There are regular onsite inspections and audits There are semi-annual reports provided to the Congress and the Foreign Intelligence Surveillance Court The men and women at NSA are not simply committed to compliance with the law and the protection of privacy and civil liberties but they are actively trained and must be held accountable to standards for that performance This is also true of contractors The actions of one contractor should not tarnish all contractors because they also do great work for our Nation In concluding I would note that our primary responsibility at the National Security Agency—not alone but across the Federal Government—is to defend the Nation These programs are a core part of those efforts We use them to protect the lives of Americans and our allies and partners worldwide Over 100 Nations are capable of collecting signals intelligence or operating a lawful intercept capability like the one you are hearing 12 described today I think our Nation is amongst the very best in protecting privacy and civil liberties We look forward to the discussions that you have encouraged today but I also appreciate that this discussion takes place at an unclassified level I especially appreciate that the Committee Chairman and the Committee have allowed for the possibility that we might have classified discussions in an appropriate setting because the leaks that have taken place of classified information have constituted an irresponsible and real damage to the capabilities that we will describe today Finally whatever choices are made by this Nation on the matter before us in consultation and collaboration across the three branches of Government I assure you that NSA will faithfully implement those choices in both spirit and mechanism To do otherwise would be to fail to take the only oath that we take to support and defend the whole of the U S Constitution That includes the protection both of national security and civil liberties And sir I look forward to your questions Mr GOODLATTE Thank you Mr Inglis Ms Douglas welcome TESTIMONY OF STEPHANIE DOUGLAS FBI NATIONAL SECURITY BRANCH Ms DOUGLAS Thank you and good morning Chairman Goodlatte Ranking Member Conyers and Members of the Committee And thank you for an opportunity to be here today As you know NSA and FBI enjoy a unique relationship one which has been invaluable since the events of 9 11 The authorized tools available under the business records 215 and FISA 702 complement many of the other investigative tools we apply to our national security cases Together with human sources physical surveillance and other logical investigation 215 and 702 play a role in providing us a more full understanding of our risks and gives us an opportunity to proactively address national security threats I would like to give you just a few examples of where these tools have played a significant role specifically in counterterrorism investigations And the first case I want to note is one that is very familiar to this Committee and that is of Najibullah Zazi In early September 2009 NSA using their authorities under 702 intercepted a communication between an al-Qaeda courier located in Pakistan and an unknown U S person—U S -based person This U S -based person was inquiring about efforts to procure and use explosive materials and there was some urgency in his communication NSA advised the FBI as to this communication as it represented a potential imminent threat to the homeland Based on the nature of the threat information the FBI initiated a full investigation and submitted a national security letter to identify the subscriber The subscriber came back to an individual named Najibullah Zazi located in Denver Colorado Additionally NSA ran a phone number identifiable with Mr Zazi against the information captured under 215 NSA queried the 13 phone number and identified other Zazi associates One of those numbers came back to Adis Medunjanin an Islamic extremist located in Queens New York The FBI was already aware of Mr Medunjanin but information derived from 215 assisted in defining Zazi’s network and provided corroborating information relative to Medunjanin’s connection to Zazi Just a few weeks after the initial tip by NSA both Zazi and Medunjanin were arrested along with another co-conspirator They were charged with terrorist acts and a plot to blow up the New York City subway system As you already know the Zazi case was the most serious threat to the homeland since 9 11 The importance of the Zazi case is that it was initiated on information provided by NSA which they acquired under 702 their coverage of an al-Qaeda operative overseas Without this tip we can only speculate as to what may have happened This was a fast-paced investigation and one in which time was of the essence The combined tools of 702 and 215 enabled us to not only begin the investigation but to better understand the possible network involved in an active plot to the homeland I would like to also represent one case to you specific to the business record 215 authority In 2003 the FBI initiated a case on an individual identified as Basaaly Moalin It was based on an anonymous tip that he was somehow connected to terrorism In 2004 the case was closed without sufficient information to move forward on the investigation However 3 years later in October 2007 NSA provided a phone number to the FBI with an area code which came back to an area consistent with San Diego NSA found this phone number was in contact with an al-Qaeda East African-affiliated person Once provided to the FBI we initiated an investigation submitted a national security letter for the subscriber of the phone number and determined that it was Mr Moalin the subject of the previously closed case Subsequent investigation led to the identification of others and to date Moalin and three others have been convicted of material support for terrorism The relevance of this case to 215 is that if that information had not been tipped to the FBI it is unknown if we would have ever looked at Mr Moalin again As you know there are many other instances of the use of these authorities and their application to counterterrorism investigations Thank you and I am happy to answer your questions Mr GOODLATTE Thank you Ms Douglas And I will begin the questioning With regard to the point raised by the Ranking Member with regard to declassification I just want to say that with regard to the Section 702 surveillance of noncitizens of the United States outside the United States I think there would be few Americans who would be surprised that our Government engages in intelligence gathering with regard to those individuals And they would know it even more clearly by looking at the statutes and the amendments to the statutes that have been passed 14 over the years that this type of activity is clearly authorized in the law With regard to 215 there is some controversy about whether this particular program is authorized under the law And you will hear more about that shortly and I will have a question myself But my first question to you is why would it not have made sense—given the magnitude of this program I am frankly surprised it has remained secret until recently for the several years that it has Why not simply have told the American people that we are engaging in this type of activity in terms of gathering the information It doesn’t give away any national security secrets in terms of the particular information gathered that might lead to successes like the one just described by Ms Douglas But it might have engendered greater confidence in the public with regard to understanding how the program works and public support for it Mr Cole Mr Litt would you care to answer that Mr LITT Sure The problem is that I think that a judgment was made that to disclose the existence of this program would in fact have provided information to people who were seeking to avoid our surveillance that it would tell them that we are looking for the communications they are having with Americans and we are using that as a basis of tracking them and identifying their confederates within the United States And so the judgment was made a number of years ago when this program was started that it should be kept classified It was not of course withheld from the oversight Committees in Congress And as others have noted briefings on it were offered to all Members of Congress before it was reauthorized But the decision was made that this is the sort of sensitive source and method that we don’t want to disclose Mr GOODLATTE Do you think a program of this magnitude gathering information involving a large number of people involved with telephone companies and so on could be indefinitely kept secret from the American people Mr LITT Well we tried Mr GOODLATTE I understand Laughter So let me ask a follow-up question to you and Mr Cole and that would be how exactly does Section 215’s wording authorize the Government to operate a program for the collection of metadata Can you walk the Committee through the Government’s interpretation of the statute that lends itself to arguing that you can do metadata collection Mr COLE Certainly Mr Chairman I think you have to start with the fact that when you look at 215 and the orders that the court issues under 215 there are two of them You can’t look at them separately You have to look at how they interact and operate together And I think that is very very important in understanding how this is relevant to an investigation concerning these terrorist organizations You can’t just wander through all of these records There are very strict limitations on how you can access or how you can use these under what is called the primary order You have to have reasonable articulable suspicion that a specific phone number which they call a selector is involved with one of 15 these specified terrorist organizations And then and only then after you have documented that reasonable articulable suspicion can you query this database to find out what other phone numbers that specific terrorist-related phone number has been in contact with Mr GOODLATTE Let me follow up on that question because how is the collection of all of a telephone company’s telephone metadata relevant to a foreign intelligence or international terrorism investigation an investigation Mr COLE It is only relevant to the extent that you need all of that information in order to do the query of the reasonably articulated suspicion Mr GOODLATTE Well certainly the acquisition of the type of information collected under this program is relevant to an investigation of an individual or group suspected of terrorism But how do you and how does the FISC rationalize the collection of all of the data as being relevant to an investigation Mr COLE There are two main reasons One is the length of time that these records are kept by the phone companies varies and they may not keep them as long as we keep them under this program The court allows us to keep them for a 5-year period The phone companies don’t necessarily do that The periods vary and some can be as short as 15 or 18 months Mr GOODLATTE Mr Inglis with regard to Section 702 what happens if you incidentally collect information from a U S person Can you explain how the minimization procedures apply to that and what do you mean by minimization Mr INGLIS Yes sir There are court-approved rules that we call minimization procedures What they do is they say that if in targeting a foreign person under 702 who you believe to be in a foreign location to derive foreign intelligence and you discover that you have also collected a communication that involves a U S person They might be the person who has received that communication from your person of interest They might be the person who sent that communication They might be referenced in that communication We have an obligation to first examine whether or not that communication is pertinent to foreign intelligence If the communication is pertinent to foreign intelligence then we must take further action to essentially protect the identity of that U S person unless knowledge of that identity is important pursuant to the foreign intelligence purpose We would therefore suppress the identity of that U S person in any report that we would make that focused on the target of our interest and we would take action if that communication was not of foreign intelligence relevance to essentially destroy that communication in place Mr GOODLATTE How long do you retain information collected under 702 And you may have just answered it but is the incidentally collected information about U S persons retained as well Mr INGLIS Yes So the incidentally collected information unless it is relevant to a foreign intelligence purpose or it is evidence of a crime or imminent death or injury to a person you would destroy that on site at that time 16 Mr GOODLATTE And other information how long is that retained Mr INGLIS We would otherwise retain that for about 5 years Typically in our holdings under BR FISA the information is mandatorily destroyed at 5 years For most of the rest of our collection 5 years is the reference frame We found that over time at about the 5-year point it loses its relevance simply in terms of its temporal nature Mr GOODLATTE Thank you My time is expired The Chair recognizes the gentleman from Michigan the Ranking Member Mr Conyers for 5 minutes Mr CONYERS Thank you Chairman Goodlatte There are a couple of questions here that haven’t come up and I would like to direct them to Attorney Douglas If only relevant conversations can be secured under Section 215 of the PATRIOT Act then why on earth would we find now that we are collecting the names of everybody in the United States of America who made any calls for the last 6 years or more Ms DOUGLAS Sir we are not collecting names 215 only collects phone numbers the time and date of the phone call and the duration of the phone call Mr CONYERS Well how do you consider that to be relevant to anything if there is just collecting only the names—I mean look if this is an innocent pastime that we just do to keep busy or for some other reason why on earth would we be collecting just the names—just the numbers of everybody in the United States of America for at least 6 years Ms DOUGLAS I can speak to the application against investigations And in this case for 215 it would be specific to counterterrorism investigations That information enables us to search against connections to other—if there is communication between a U S -based phone number and a phone number that is overseas that is related to terrorism And I know that Mr Inglis explained to you the reasonable articulable suspicion standard by which we have to actually search against those phone numbers Mr CONYERS Well here we are faced with the fundamental problem in this hearing We are not questioning access We are talking about the collection in the first instance In the first instance when you collect the phone numbers of everybody in the United States for over 6 years there wasn’t anything relevant in those conversations Now you have them and what I have been getting out of this is that they may—this access may become valuable Mr Ranking Member and so that is why we do it this way But I maintain that the Fourth Amendment to be free from unreasonable search and seizure means that this metadata collected in such a super-aggregated fashion can amount to a Fourth Amendment violation before you do anything else You have already violated the law as far as I am concerned And that is in my view the problem And of course to help further document the first question that the Chairman of this Committee asked is why didn’t we just tell everybody about it is because the American people would be totally 17 outraged as they are getting now as they become familiar with this that every phone number that they have ever called is already a matter of record And we skip over whether the collection was a Fourth Amendment violation We just say that the access proved in one case or two that it was very important and that is why we did it this way I see this as a complete failure to take and—you know we changed the PATRIOT Act to add relevancy as a standard because of this very same problem that has now been revealed to be existing And so I feel very uncomfortable about using aggregated metadata on hundreds of millions of Americans everybody including every Member of Congress and every citizen who has a phone in the United States of America This is unsustainable It is outrageous and must be stopped immediately Mr INGLIS Sir if I may complement the answer that Ms Douglas gave With respect to the question of relevance of course it must be legally relevant and it must therefore have operational relevance I would like to address the operational relevance and then defer to my colleagues from—— Mr CONYERS Well you don’t—wait a minute We are holding— we are handling this discussion I asked her Maybe somebody else can do it but my time has expired And I appreciate your volunteering to help out here but it is clear to me that we have a very serious violation of the law in which the Judiciary Committee deliberately put in the issue of relevance and now you are going to help me out and defer to somebody else Well—— Mr INGLIS No sir I meant to actually provide additional information I would be happy to take the question for the record if time is not allowing that Mr CONYERS Well in all fairness—— Mr GOODLATTE Without objection the gentleman is recognized for an additional minute to allow another member of the panel to answer the question if he so chooses Mr CONYERS No I don’t so choose I am satisfied exactly what I have gotten from the witness that I asked the question to Mr GOODLATTE The Chair thanks the gentleman Mr CONYERS You are welcome Mr GOODLATTE And now recognize the gentleman from Wisconsin Mr Sensenbrenner for 5 minutes Mr SENSENBRENNER Well Mr Chairman at the risk of having the flag thrown at me for piling on I want to get at the whole business of who decides what is relevant Both the Chairman and the Ranking Member have said that the PATRIOT Act was amended in 2006 to include a relevance standard Yesterday I got a letter from the Justice Department which was at great length explaining this and I would ask unanimous consent that this letter be placed in the record at this time Mr GOODLATTE Without objection it will be made a part of the record The information referred to follows 18 US Department of Justice foice of Legislative Affairs Of ce of the Assistant Attorney General Washingmn DC 20530 lili 3% 28% The Honorable F James Sensenbrenner Jr US House of Representatives Washington DC 20515 Dear Representative Sensenhrenner This responds to your letter to the Attorney General date June 6 2013 regarding the business records provision of the Foreign intelligence Surveillance Act PISA 50 1 33 0 1861 enacted as section 215 of the USA Act As you know on June 5 2913 the media reported the unauthorized disclosure of a classi edjurlieial order issued under this provision that has been used to support a sensitive intelligence collection pregrem Under this program which has been briefed to Congress and repeatedly authorized by the Foreign intelligence Surveillance Court FISC the Federal Bureau of Investigation FBI obtains authorization to collect telephony meteor-rte including the telephone ntunbers dialed and the date time and duration of calls from certain telecommunications service providers The National Security Agency NSA in turn archives and analyzes this information under carefully eontrelled circumstances and provides leads to the FBI or others in the intelligence Commimity for counterterrorism purposes Aspects oftliis program remain classified and there are limits to what ean be said about it in an unclassi ed letter Department of Justice and intelligence Community staff are available re provide you a briefing on the program at your request in your letter you asked whether this intelligence collection program is consistent with the requirements of section 21$ and the limits of that authority Under section 215 the Director of the FBI may apply to the FISC for an order directing the production of any tangible things including business records for investigations to protect against international terrorism To issue such an order the FESC must determine that there are reasonable greuuds to believe that the things sought are relevant to an authorised investigation other than a threat assessment 2 the investigation is being conducted under guidelines approved by the Attorney General under Executive Order 12333 and 3 if a US person is the subject ofthe investigation the investigation is not being eendueted solely ripen the basis of First Amendment protected activities in addition the may only require the production of items that can be obtained with a grand jury subpoena or any other eourt order directing the production of records or tangible things Finally the program must of course comport with the Constitution 19 The Honorable F James Sensenbrenner In Page 2 The telephony meteorite program satisfies each of these requirements The lawiulness of the telephony metadata collection program has repeatedly been affirmed by the FISC in the years since its inception multiple FISC judges have granted 90 day extensions ofthe program alter concluding that it meets all applicable legal requirements 31 particular signi cance to your question is the relevance to an authorized international terrorism investigation of the telephony meteorite collected through this program First it is critical to understand the program in the context of the restrictions imposed by the court These restrictions strictly limit the extent to which the data is reviewed by the government in particular the MEG allows the data to be queried for intelligence purposes only when there is reasonable suspicion based on speci c facts that a particular query term such as a telephone number is associated with a speci c foreign terrorist organization that was previously identi ed to and approved by the court NSA has reported that in 2812 fewer than 300 unique identi ers were used to query the data after meeting this standard This means that only a very small fraction of the records is ever reviewed by any person and only specially cleared counterterrorisrn persomtel speci cally trained in the court approved procedures can access the records to conduct queries The generated in response to these limited queries is not only relevant to authorized investigations of international terrorism but may be especially significant in helping the government identify and disrupt terrorist plots The large volume of telephony metadata is relevant to FBI investigations into specific foreign terrorist organizations because the intelligence tools that NSA uses to identify the existence of potential terrorist communications within the data require collecting and storing large volumes of the ineladatu to enable later analysis if not collected and held by NSA the motorists may not continue to be available for tire period that NSA has deemed necessary for national security purposes because it need not be retained by telecommunications service providers Moi-covers unless the data is aggregated by NSA it may not be possible to identify telephony metndeta records that cross different telecommunications networks The bull collection of telephony meteorite mitt the collection of a large volume and high percentage of information about unrelated cominunicutionsiis therefore necessary to identify the much smaller subset ot terrorist-related telephony rnetadeta records contained within the date It also allows NSA to make connections related to terrorist activities over time and can assist cormterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities including persons and activities inside the United States Because the telephony metudsta must be available in bull to allow NSA to identify the records of terrorist communications there are reasonable grounds to believe that the data is relevant to an authorized investigation to protect against international terrorism as section 215 requires even though most of the records in the detaset are not associated with terrorist activity The program is consistent with the Constitution as well as with the statute As noted above5 the only type of infonmation acquired under the program is telephony motorists not the content of any communications not the identity address or nancial information of any party to 20 The Honorable F James Sensenbreuucr Jr Page 3 the communication and not geolocational information longstanding Supreme Court precedent there is no reasonable expectation of privacy with respect to this kind of information that individuals have already provided to third-party businesses and such information therefore is not protected by the Fourth Amendment Sec Smiih v Maryiand 442 US 735 739-42 1979 Moreover it is important to bear in mind that activities carried out pursuant to FISA including those conducted under this program are subject to stringent limitations and robust oversight by all three branches of As noted above by order of the NSC the Goverrunent is prohibited from indiscriminately sifting through ue telephony rnetadatn it acquires instead all information that is acquired is subject to strict court-imposed restrictions on review and handling that provide signi cant and reasonable safeguards for US persons The basis for a query must be documented in writing in advance and must be approved by one of a limited number of highly trained The FISC reviews the program every 90 days The Department of Justice conducts rigorous oversight to ensure the telephony metudata is being handled in strict compliance with the orders and the Department of Justice and the Office of the Director oantionei intelligence ODN i conduct thorough and regular reviews to ensure the orograni is implemented in compliance with the law The progrsm is also subject to extensive congressional oversight The classi ed details of the program have been briefed to the Judiciary anti intelligence Committees on many occasions In addition in December 2039 the Department of Justice worked with the intelligence Community to provide a classi ed briefing paper to the House and Senate intelligence Committees to be made available to all Members of Congress regarding the telephony inctariata collection program it is our understanding that both Intelligence Committees made this document available to all Members prior to the February 2010 reauthorization of section 215 That brie ng paper clearly explained that the govemrne nt and the had interpreted Section 215 to authorize the collection of telephony rnetariets in bulk An updated version of the briefing paper was provided to the Senate and House Intelligence Committees again in February 2011 in oomiection with the reauthorization that occurred later that year Finally we do not agree with the suggestion in your letter that the Department s March 9 2011 public testimony on section 2l5 conveyed a misleading impression as to how this authority is used Quoting a portion of that testimony your letter states that it left the committee with the impression that the Administration was using the business roconis orcvision sparingly and for speci c materials The recently released FISA order however could not have been drafted more broadly in fact key language in tire testimony in question noted that orders issued pursuant to section 21 5 have also been used to support important and highly sensitive intelligence collection operations on which this committee and others have been separately 21 The Honurabie F James Sensenbrennerg Jr Page 4 briefed W5 how that the explanatian abova regarding the use if this autharity to identify specific terroriSm-urclated telephuny metadata regards helps to clarify the point The meant unautherizad disciusure of this and other ciassi ad astivities has caused seriuus harm be our national sacuri ty Since the disclosure of the telephony meiadata coilectiun program the Department uf Justica and the Intelligence Community have worked to ensure that Congress and the Americai l pimple midarstand haw the program uperates its importance to 3111 security and the rigorous oversight that is applied As part of this effort senior of cials from ODNI NBA DOE and FEE provided a ciassi ed brie ng for all House on June 113 2013 and separaie classi ad briefings to th House Democratic Caucus and the Hausa Republican Cunfermce on June 26 2013 The Department of Justice is gummitted to ensuring that our cf bm to protect maximal Security are canduetad law xiiy and Iaspect Ehe privacy and uivii iibertius of all mnericuns We leek forward t0 cuminuing in work with you and others in the Congress to ensure Ehat we meet this objaativa We hape this informatiun is helpful Phase do net hesitata 0 contact this af ce if We may provide additiunai assistanue with this at any other matter Sincerely x4 i Vii Peter J Kadzik- Principal Deputy ASSiStaut A umey General 22 Mr SENSENBRENNER Part of that letter said that in effect that all of the phone calls meaning the telephony metadata had to be collected pursuant to the court order and then it would be up to the security apparatus to make a determination of which needles in that large haystack were relevant to a foreign terrorist investigation Now doesn’t that mean that instead of the court making a determination of relevance it is the security apparatus that makes a determination of what is relevant and which of the less than 300 series of phone calls get picked out according to your testimony Mr Cole would you like to answer that Mr COLE Yes Mr Sensenbrenner I am happy to address that What the court does is it sets out a framework and a set of rules that we must follow to implement its orders Mr SENSENBRENNER But they don’t determine which specific phone calls are relevant pursuant to the statute You do that Mr COLE Well we report to the court periodically on the implementation of this We get it re-upped every 90 days when there are—— Mr SENSENBRENNER But you do that The court does not Mr COLE We—the court does not—— Mr SENSENBRENNER Now if there was a criminal trial involved it would be the court that would be determining a relevance standard pursuant to subpoena or for proffered evidence wouldn’t it Mr COLE Not necessarily Mr Sensenbrenner Mr SENSENBRENNER Okay Well then let me continue on this You know I have been the author of the PATRIOT Act and the PATRIOT Act reauthorization of 2006 Mr Conyers was correct in saying why the relevance standard was put in and that was an attempt to limit what the intelligence community could be able to get pursuant to Section 215 It appears to me that according to this letter and according to the testimony of FBI Director Mueller that relevant was an expansion of what could happen rather than a limitation when the law was amended when relevant was not included in that statute And doesn’t that make a mockery of the legal standard because you are trying to have it both ways Mr COLE I don’t think we are trying to have it both ways Mr SENSENBRENNER Well you sure are because you are saying get—authorize have the court authorize to get us the records of all the phone calls that are made to and from phones in the United States including people who have nothing to do with any type of a terrorist investigation And then what you are saying is is that we will decide what to pick out of that massive maybe a billion phone calls a day on what we are looking at rather than saying this person is a target Why don’t you get an authorization only for that person’s telephone records Mr COLE Again going to the analogy of the criminal context we would never in a grand jury situation or in an investigation that is a traditional criminal investigation even go to a court for the framework or the setting of rules or have sunsetting every 90 days of the authority or having compliance procedures—— 23 Mr SENSENBRENNER But Mr Cole with all due respect the letter that I got from the department that you are the number-two person in says that you get the FISA court order because there are ‘‘reasonable grounds to believe that the data is relevant to an authorized investigation to protect against international terrorism ’’ as Section 215 requires even though most of the records in the dataset are not associated with terrorist activity So you gobble up all of those records and then you turn around and say well we will pick out maybe 300 phone numbers out of the billions of records that you have every day and you store for 5 years there and all the rest of this stuff is sitting in a warehouse and we found out from the IRS who knows who wants to have any kind of illegal access to it You are having it both ways Let me tell you as one who has fought PATRIOT Act fights usually against the people over on the other side of the aisle Section 215 expires at the end of 2015 and unless you realize you have got a problem that is not going to be renewed There are not the votes in the House of Representatives to renew Section 215 and then you are going to lose the business record access provision of the PATRIOT Act entirely It has got to be changed and you have to change how you operate Section 215 Otherwise in the year and a half or 21⁄2 years you are not going to have it anymore And I yield back Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from New York Mr Nadler for 5 minutes Mr NADLER Thank you The problem obviously Mr Cole with what we are hearing from this panel and what we have heard generally about the relevant standard is that everything in the world is relevant And that if we removed that word from the statute you wouldn’t consider or the FISA court wouldn’t consider that it would affect your ability to collect metadata in any way whatsoever which is to say you are disregarding the statute entirely Now in public briefings including to this Committee when we were considering reauthorization of Section 215 Administration officials have suggested that we view the authority of Section 215 as similar to a grand jury subpoena And we specified in the statute that an order under Section 215 ‘‘may only require the production of a tangible thing if such thing can be obtained’’ through a grand jury subpoena Now can you give me Mr Cole any examples where grand jury subpoenas were used to allow the bulk ongoing collection of telephone metadata Mr COLE It is difficult to go into specific examples of what grand jury subpoenas call for—— Mr NADLER Are there any such—— Mr COLE continuing Because those are subject to the rules of secrecy under Rule 6 Mr NADLER Oh come on Are there any—are there any instances in the history of the United States that you know of where a grand jury subpoena said get every—get all information other than the content of a telephone call of all telephone calls in the United States or anything like that 24 Mr COLE The admonition in the statute is that it is the types of records that are collected by grand jury subpoena not that it is an identical process to the grand jury process because this is quite different from a grand jury process Mr NADLER All right The type of data—— Mr COLE The FISA court involves—— Mr NADLER Excuse me The type of data—the type of data is metadata unlimited to specific individuals Mr COLE The type of data is metadata and that—— Mr NADLER Unlimited to specific individuals because it is directed to everybody Can you give—it is directed to every phone call in the United States Can you give me any example where a grand jury subpoena has ever been used for anything remotely like that Mr COLE These are instances where we have gone to the court under the 215 requirements with the relevancy—— Mr NADLER You are not answering my question Can you give me any example in the history of the United States where a subpoena a grand jury subpoena was used for anything remotely resembling all metadata not to specific phones or to specific individuals Mr COLE Grand jury subpoenas have a different function than a 215 under the PATRIOT Act—— Mr NADLER I understand that But the statute says—— Mr COLE It is hard to equate the two Mr Nadler Mr NADLER You are not answering my question You are deliberately not answering We know they have a different function But the statute says that it may only require the production of a tangible thing if such a thing can be obtained through a grand jury subpoena Could you obtain through a grand jury procedure all metadata without being limited to specific named individuals or specific listed telephones Mr COLE I think it would depend on the circumstances the limitations that the court would—— Mr NADLER Okay Is there is any instance in history—— Mr COLE continuing The nature of the investigation and then yes I think there are instances where a court in the right circumstances could authorize that Mr NADLER And could you give me any instance in history where that has ever been done Mr COLE I am not aware of one sitting here right now Mr NADLER You are not aware of one Could you supply us please with any instance because I believe this is totally unprecedented and is way beyond the statute And you can’t give me any instance because it doesn’t exist So within a week or two could you supply this Committee with that information Mr COLE Depending on the restrictions of Rule 6 of the Criminal Rules of Procedure which prohibit disclosing grand jury information we will take that record back for response—that question back for response Mr NADLER And can you give us an example where ongoing bulk collection has been allowed by virtue of grand jury subpoena 25 without a showing of the connection between those tangible things and a specific existing investigation Mr COLE Well in this instance we are showing it as a relationship to a specific investigation and specific phone number We have to show reasonable—— Mr NADLER No only for use of that information not for collection of it Mr COLE Well—— Mr NADLER The statute is talking about collection You are trying to confuse us by talking about use Mr COLE But the collection is only there and is only valuable if it is used and the use is severely restricted—— Mr NADLER We are not talking about the use The abuse of the statute the abuse of civil liberties the abuse of privacy is not only misuse but miscollection If you are collecting information about my telephone when you shouldn’t be doing that that is an abuse even if you just simply file that and never use it Mr COLE We go to the court and describe to them exactly how the program will work what the limitations are—— Mr NADLER Well that—excuse me That doesn’t help me The fact that the—— Mr COLE The court authorizes us to do this collection Mr NADLER Let me ask the question The fact—the fact that a secret court unaccountable to public knowledge of what it is doing for all practical purposes unaccountable to the Supreme Court may join you in misusing or abusing the statute is of no comfort whatsoever So to tell me that you go to the FISA court is irrelevant if the FISA court is doing the same abuse of the statute So again can you give me some examples where ongoing bulk collection—I am not asking about use—has been allowed by virtue of grand jury subpoena without showing of a specific connection— without showing the connection between those tangible things and a specific existing investigation Mr GOODLATTE The time of the gentleman has expired Mr Cole will be allowed to answer the question Mr COLE We will take that similarly as a question for the record and again depending on the Rules of Criminal Procedure we will see what we can get back to you sir Mr NADLER And be aware of course that you could give it to us on a classified basis so that we could say our conclusions about that information Mr GOODLATTE The time of the gentleman has expired The gentleman from North Carolina Mr Coble is recognized for 5 minutes Mr COBLE Thank you Mr Chairman Lady and gentlemen good to have you all with us today Mr Cole let me start with you Does the Fourth Amendment protection against unreasonable search and seizure apply to business records that could be obtained under 215 of the PATRIOT Act Mr COLE In particular Mr Coble it does not apply to the metadata records There is a case Smith v Maryland where the Supreme Court ruled that these kinds of records there is no rea- 26 sonable expectation of privacy So there is no Fourth Amendment protection Mr COBLE Let me follow up with another question So does a person then have a reasonable expectation of privacy in third-party business records Mr COLE People generally do not when they are in third-party hands because other people already have them So the expectation of privacy has been severely undermined Mr COBLE Is it true that a 215 order provides greater privacy protection than does a grand jury or administrative procedure—or administrative subpoena which can be used to obtain the same types of business records in a criminal investigation without prior court approval Mr COLE Yes it does There are a number of provisions in 215 that provide much greater protection than a grand jury process would First you have to go to a court The court has to specifically review the program and the description of the relevance of these records how they will be accessed how they will be overseen how there will be auditing how there will be reporting on it how there will be compliance with all of the rules of the court None of that takes place in the grand jury context Mr COBLE Mr Cole if the Fourth Amendment applies to foreign countries do other American protections under the Bill of Rights apply such as the Second Amendment under the due process clause Mr COLE Not necessarily sir The Fourth Amendment applies to U S persons who are outside of the United States but it generally does not apply to non-U S persons who are outside of the United States Mr COBLE Mr Cole for the benefit of the uninformed and sometimes I feel I am in that category describe for the Committee the makeup of the FISA court who sits on it where it resides and how it operates Mr COLE The FISA court is made up of judges Article III judges who have been nominated by the President They cover any number of different Administrations They have been confirmed by the United States Senate for a life appointment They have their regular duties as District Court judges They are appointed by the Chief Justice of the United States to serve a term on the FISA court There are 11 of them at any given time when you have a full complement Each of them serves for a week at a time They do not take care of their other court duties back in their home districts They come and serve on the FISA court for that week handling the applications There is a staff there as well that helps them and goes through it and is their clerks and some of their legal research assistants in this matter and these last for I believe a term of 7 years that each judge can sit on the court Mr COBLE And I believe you Mr Cole or one of the members of the panel may have indicated this That to some extent there is confusion as to the number of denials There has been criticism leveled at the court indicating very few denials But I think you addressed that or one of you addressed that earlier in your comment Do you want to add to that 27 Mr COLE Yes the level of denials is very similar to the same level of denials which is small for normal Title III in a criminal context—wiretap applications that are made to judges in regular courts These are also done in chambers and with one party And the reason that the number is so low first of all is under the FISA you have to have either the Attorney General or myself or the Assistant Attorney General for the National Security Division sign off on the application very high-ranking officials in the department So those applications are done very carefully in the first place Number two the court if they are not satisfied with an application that comes in will tell us and they will say you need more information You need more restrictions You need more requirements So we will respond to that and unless we satisfy them on all of their requirements they will not sign the application But more often than not we can go back and find the additional information that they will need So there is something of an iterative process but it is not unlike what goes on with a normal court every day in the Title III or the wiretap process Mr COBLE Thank you Mr Cole Mr Chairman I see my amber light I would like to make one final statement And this may not be the day for it but Mr Chairman at some point I would like to know the cost that has been expended in implementing this matter If you would concur with that I will pursue that at a later date Mr GOODLATTE I do concur with that That is a very important piece of information to have but I believe that is classified and would entail the subsequent hearing that I anticipate we will have in a classified setting where we can get answers to questions like that Mr COBLE I thank you Mr Chairman And good to have you all with us I yield back Mr Chairman Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from Virginia Mr Scott for 5 minutes Mr SCOTT Thank you Mr Cole did I understand you to say that you do not have an expectation of privacy on your phone records Mr COLE The Supreme Court ruled in Smith v Maryland that you do not have a sufficient expectation of privacy in the phone records as we have talked about it The two—— Mr SCOTT Okay That is fine Ms Douglas you indicated that you do not—you just get the numbers not the names Is there—if the numbers are relevant under whatever standard you are using why are not the names equally relevant Ms DOUGLAS Well the names are not collected in the metadata Mr SCOTT Well where is the limitation If you can get the numbers why can’t you get the names Ms DOUGLAS Well we can through other legal process and that is what the FBI will do And so if we receive a phone number—— Mr SCOTT No I mean why don’t you get it all at once Where is the statutory limitation 28 Mr LITT If I can answer the question here I think that this indicates the fact that as the Deputy Attorney General said that this program is carefully set up in such a manner—— Mr SCOTT Where is the—— Mr LITT continuing As to minimize the invasion of privacy One of the reasons—— Mr SCOTT Where is the statutory limitation Mr LITT continuing This program is found reasonable is the fact that the collection is very limited The access is very limited Mr SCOTT Okay okay Mr LITT And it is on that basis the court has approved the collection Mr SCOTT You have made up That is because you have made up the program I asked you a specific question where if this is available where is the statutory limitation to what you can get There is no statutory limitation You are kind of making it up as you go along Mr LITT We are not making it up We are seeking the approval of the court and this collection—— Mr SCOTT Okay What—— Mr LITT continuing Has been repeatedly approved by numerous judges of the FISA court found to be in compliance with the statute Mr SCOTT Okay Once you get the information we know through the recent case on DNA once you get DNA from somebody you can use it in ways that you could not have obtained the information But once you get it you can run it through no probable cause or anything through the database My question is once you get this metadata where is the limitation on what you can use it for Mr LITT It is in the court’s order Mr SCOTT Where is the statutory limitation Mr LITT The court—the statutory limitation says that we can acquire the information as ordered by the court The court sets limits on what we can do with it and we adhere to those limits Mr SCOTT Well is there a limit in criminal investigations or an exception for criminal investigations without a probable cause Mr LITT With respect to information obtained under Section—— Mr SCOTT Once you have got the metadata can you run a criminal investigation without probable cause Mr LITT The metadata can only be used in pursuit of a terrorism investigation and the only thing that is done with that is that telephone numbers are generated out of it for further investigation It cannot be used for a criminal investigation unrelated to terrorism Mr SCOTT Wait a minute You are talking about minimization Mr LITT The court’s order provides that we can only use this data for purposes of a terrorism investigation Mr SCOTT Well how does the court get to—why is the court required to place that limitation on it Mr LITT Because the court looks at the application that we are submitting and determines that with all of the restrictions that are imposed here this is a reasonable method of collecting this infor- 29 mation and that it complies with both the statute and the Fourth Amendment Mr SCOTT Is there an exception under minimization for criminal investigations Section g minimization procedures 2 c says that ‘‘notwithstanding subparagraphs A and B procedures that allow for the retention and dissemination of information that is evidence of a crime which has been is being or about to be committed and that is to be retained or disseminated for law enforcement purposes’’ are exempted from the minimization requirements Mr LITT The procedures applicable to this kind of collection allow it only to be used on the terms specified by the court and that is limited to generating the kind of information that you—— Mr SCOTT Well is that—— Mr LITT continuing Talked about in pursuit of a terrorism investigation Mr SCOTT Okay And so the minimization exception for criminal investigations doesn’t apply If you trip over some criminal some crimes—— Mr LITT We are not allowed to use this database for a criminal investigation unrelated to terrorism Mr SCOTT Well—— Mr COLE Mr Scott I think there may be some confusion—— Mr SCOTT continuing Then that is not what the code section says but if that is what you want maybe we need to change it Does exclusionary rule apply If you trip over some crimes and try to use it does it—and including the principle of the poison tree evidence of a poison tree does that apply Do those exclusions apply to stuff you may trip over that you have gotten through this Mr LITT We don’t have the ability to trip over it in this All this data is is a series of telephone numbers and other identifiers The only thing we can use this data for is to submit to the pool of data a telephone number or other identifier that we have reason to believe based on articulable facts is associated with terrorism We can then say what numbers has that been in contact with Any other further investigation has to be done under some other authority Mr SCOTT Well you have—Mr Chairman I apologize but the limitation the minimization exception for a criminal investigation and when I asked the Attorney General Gonzales about what you could use this information for he specifically indicated criminal— it is g 2 C under minimization requirements procedures He specifically said you could run a criminal investigation without the necessity implying without the necessity of probable cause that you usually need to do to get information Thank you Mr Chairman Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from Alabama Mr Bachus for 5 minutes Mr BACHUS Thank you Let me start by saying I am satisfied at least from what limited knowledge I have that the motivation behind this was legitimate and necessary for our national security to start this process establishment of a court And that from your testimony you have not apparently not abused individual rights and you have been an effective tool for terrorism 30 But my concern is this could evolve into something that is quite different The Star Chamber I mean in England started out as very good very popular with the people It allowed people to get justice that otherwise would not But it evolved over time into a powerful weapon for political retribution by the king And my question is in fact I was reading the Supreme Court It said it symbolized disregard of basic individual rights They talk about actually the right against self-incrimination was a direct result of what happened in England when this court evolved into something quite different from what it was intended to do So my first question to all of you is how do we—how do we keep this from evolving into a weapon an unchecked weapon by the Government to violate people’s constitutional rights And I am more concerned about Americans’ rights not terrorists’ rights Mr COLE I think you raise a very excellent point and I think the way this is designed to make sure that all three branches of Government are involved that this isn’t just the king or the administration or an executive branch doing it This is something that is done with permission of the court and supervision of the court with rules laid down by the court to make sure it comports with the Constitution and the privacy rights of U S citizens It is done through statutes that are passed by this body where we report back to this body and tell you what we have done with it and how it works and let you know what problems we have had and how we have fixed them And it is also done with a lot of oversight within the executive branch with Inspectors General and a number of different executive branch agencies that audit and oversee exactly how it is done and make sure it is done right I think that is how Mr LITT If I can just emphasize one point on that This Committee has a very important role in ensuring that these authorities are not abused We are required to report extensively on all activities under FISA to the Intelligence and Judiciary Committees of both houses and we do that We provide—we are required to provide copies of all significant opinions We are required to provide reports about how these activities are carried out And we welcome your participation in that oversight to ensure that in fact we don’t cross the bounds that the people want us to adhere to Mr BACHUS Anyone else You know when I learned about this I was not aware of it at all and I think the original response was that 14 Members of Congress knew something about this Were those reports erroneous Did—— Mr LITT I can’t speak to what Members actually knew I can tell you what we did to inform Members At the time when this legislation was first up for renewal in 2009-2010 we provided a classified letter to the Intelligence Committees that described this program in great detail Mr BACHUS How about the Judiciary Committee Mr LITT The letter was provided to the Intelligence Committee The Intelligence Committee my understanding is sent an allMember letter saying that this is available to all Members This was our intention 31 We also offered classified briefings to Members of this Committee and I recall participating in one of those briefings And in fact the letters were also referenced in a statement on the floor by a Member of the Intelligence Committee saying these letters are available and I urge you all to come and read them So we were not trying to hide this program Mr BACHUS Do you have any objection to the court opinions and periodic reports being made available to all Members of Congress Mr LITT I think we would have to take that back I think the answer is probably no but I think we would have to think about the implications of that Mr BACHUS Sure and I think that is my response would be I want to think about it Mr GOODLATTE The time of the gentleman has expired Mr BACHUS Thank you Mr GOODLATTE The gentlewoman from California Ms Lofgren is recognized for 5 minutes Ms LOFGREN Well thank you Mr Chairman and thanks to our witness I was thinking back to September 11th one of the worst days I have ever spent in the Congress and remembering that that weekend after the attack that members of the White House the intelligence community Members of this Committee and our staff sat right at that table We sat around that table and worked together to craft the PATRIOT Act And it is worth remembering that that original act was passed unanimously by the House Judiciary Committee and it had the balance that we thought was important to protect the country but also looking forward to protect the rights of Americans under the Constitution And I share the concern expressed by Mr Sensenbrenner that things have gone off in a different direction from that day Now I as my colleague has indicated from Alabama I don’t question your motivation which is to keep America safe I mean I know that that is what you are trying to do and certainly we all want that But the concern is that the statute that we crafted so carefully may not be being adhered to as envisioned by us and as reported to us And I just want to say this I mean yes we have a system where there are checks and balances but part of that is that the legislative branch needs to have understanding of what the executive branch and the judicial branch is doing and we can’t do that without information It has been discussed that we get these ample reports And I just want to—I just recently reviewed the annual report on Section 215 Is it true Mr Cole or isn’t it true that the annual 215 report to the Committee is less than a single page and not more than 8 sentences Mr COLE I think that the 215 annual reports are quite a bit less than the 702 annual reports Ms LOFGREN I just ask the question Is that about the size is it your recollection Mr COLE I would have to go back and take a look to answer specifically 32 Ms LOFGREN All right Is it true that the report of the number of applications really gives the Committee information as to the amount of records and the number of entities impacted Mr COLE I am sorry Ms LOFGREN The number of applications is there a direct correlation between the number of entities impacted by those applications or the number of records Mr COLE The number of entities impacted will depend on how many phone numbers have been called by the selector Ms LOFGREN Right So you could report the number of applications but it would have no relationship to the amount of records actually acquired Mr COLE It would not necessarily no But you can imagine it is small Ms LOFGREN Thank you very much I just—looking at this letter that was sent to Mr Sensenbrenner and I thank him for sending it out And by the way he and I have sent a letter to Attorney General Holder and to Director Clapper asking that U S companies be authorized to publish information regarding the Government request for user data under FISA I think it is terribly unfair that these companies that are being discussed around the world have no capacity legally to say what has been asked of them So I know the letter was just sent I would ask that you respond to that as promptly as possible just out of basic fairness to the companies involved But going back to the letter it seems to me that if you take a look at page 2 of the letter the second paragraph it indicates that NSA has reported in the last calendar year fewer than 300 unique identifiers This means that only a very small fraction of the records is ever reviewed by any person and is actually relevant to the records Per se that sentence indicates that getting all the data is clearly not relevant to a specific inquiry And then if you go on to the next page and this really gets to my question and you have referred to it in the testimony as well the consistency allegedly with the Constitution—now it is true that the Constitution in the Smith case indicated that there is no expectation reasonable expectation of privacy with information held by third parties Is it your position that that constitutional provision trumps a statute Can the Congress say the Constitution would allow you to capture every phone record every photograph taken of an American at an ATM machine because that is in plain sight and that that constitutional provision would trump the ability of Congress to say no we are going to authorize less Mr COLE No As long as whatever Congress does is consistent with or within the bounds of the constitutional provision—— Ms LOFGREN So Congress can do less Mr COLE continuing They can do that Certainly Ms LOFGREN Can do less I would just like to say that as to the FISA court and I am sure that the judges take their obligation as seriously as you do But the whole system of our justice system is set up in an adversarial way And when you have only one party there you don’t have a counterparty making a case before the court 33 The expectation that our system will work well as it does in other environments I think is misplaced I share with Mr Sensenbrenner the belief that this will not be able to be sustained I look forward Mr Chairman to our classified briefing but I think that very clearly this program has gone off the tracks legally and needs to be reined in And I thank the Chairman for yielding to me Mr GOODLATTE The Chair thanks the gentlewoman and recognizes the gentleman from Virginia Mr Forbes for 5 minutes Mr FORBES Thank you Mr Chairman And ladies and gentlemen thank you for being here today I don’t want to scream at you or yell at you but you know we have got a lot of people across the country that would like to do that And the reason this room is packed so much today and people were waiting in long lines is not just about this program They kind of feel their country is shifting and they feel rightly or wrongly that this Administration has adopted the philosophy that somehow the end justifies the means They feel like that more than any Administration in history this is an Administration that has used taxpayer resources to advocate their political agendas They feel like more than any Administration in history this is an Administration that has decided which laws they want to obey which ones they want to ignore and which ones they want to just rewrite They feel like more than any Nation in history this is an Administration that has used enormous power of Government agents to oppress and harass U S citizens like they have seen with the IRS And now they see this Administration using this unprecedented amount of data collection first in their campaigns and then in Government on amounts of data to use for the aforementioned goals And they don’t know every time they see a Benghazi they don’t know how many more boards they are going to pull up and there is one that they don’t know about or IRS programs that they pull up and they don’t know another one that they might see and that there are other data programs that they don’t know about And this is something that I just don’t think we realize enough because over and over again we hear Administration coming over here and saying this to us They say well this isn’t illegal and you need to change the law And we need to emphasize part of this Committee is just because something is not illegal it doesn’t mean that it is not wrong And when we look at something you have got a difficulty because you can’t even really come in here and explain what this program does You can’t tell us how many people are involved with it You can’t tell us the cost You can’t tell us what the court is saying But this is my question for you There has to be an enormously large number of individuals administering this program Can you tell us if any of those individuals have abused the power that they have within this program that has not been disclosed to the Congress or the American people one Because it would be hard for us to believe that there hasn’t been some abuses Number two what is your process for collecting that information to make sure those abuses don’t take place and how do you dis- 34 tribute that information And three has anybody ever been disciplined for abusing that information And any of you who have that information I would love for you to offer it to us Mr COLE Let me if I can Mr Forbes start by answering the questions that you have put First of all I think it is important to note that this program has been going on across a number of Administrations and it is not unique by any means to this Administration It has been for prior Administrations too It is also done pursuant to court authorization and pursuant to statute and so it is done not as some rogue matter but as some matter that in fact has been authorized by law authorized by the courts and carefully scrutinized And that gets to the main part of the question that you have asked which is we know of no one— and I can let Mr Inglis expand on that—who has ever intentionally or in any kind of wrongful way abused this There may have been technical problems that have happened here and there but there has been nobody who has abused this in a way that would be worthy of or cause discipline This program goes under careful audit Everything that is done under it is documented and reviewed before the decision is made and reviewed again after these decisions are made to make sure that nobody has done the things that you are concerned about happening And those are valid concerns and we take them into account by having these audit procedures and having the reporting that we do and the consultation both with the court and with Congress to make sure that those things don’t happen We have not to my knowledge disciplined anybody for this because our controls make sure this doesn’t happen But we do look for it and we look for it hard and we haven’t found it Mr INGLIS Sir if I can just—I concur with Mr Cole’s remarks Say across my time I have been the Deputy Director now for 7 years there have been no willful abuse of the 215 or the 702 program In fact the Senate Select Committee on Intelligence in the summer of 2012 said that in a formal report that in a 4-year review that they had detected no willful abuse of the 702 program I would say how would those be identified In much the same way that Mr Cole talked about That there are a number of processes that review the formation of the selectors the results generated by those selectors not just at NSA but between NSA and the Department of Justice and the court and there are any number of opportunities then to turn up a misappropriation of the resources dedicated to this program for some other purpose And would those persons who abused this program then be disciplined Of course they should be Mr FORBES And my time is expired And I don’t mean to cut you off but I would love to have your responses for the record But when you guys tell me nobody has abused it I thought Mr Snowden abused it pretty badly And I can’t imagine if we had somebody like that doing it that we don’t have at least that capacity But I would love to have your responses for the record because I don’t want to abuse other people’s time And Mr Chairman I yield back my time 35 Mr GOODLATTE Mr Inglis if you care to respond to the gentleman from Virginia’s comment about Mr Snowden we would be happy to have it Mr INGLIS I would be happy to take that question for the record but would say here for the record that we do not have any evidence that Mr Snowden abused the program as we have defined it today He may have abused his trust in disclosing classified details of that program Mr FORBES But in all due respect—and I said I wasn’t going to yell at you and I am going to try not to But that is exactly what the American people are really worried about that somebody is getting their data and using it to disclose it in some other situation And for the life of me I don’t understand how you guys parse that issue that is there So Mr Chairman that is what is infuriating the American people They are understanding that if you collect this amount of data people can get access to it and use it in ways that can harm them not just the United States of America And that is what is concerning them I think in a lot of areas So Mr Chairman I hope we can get a more elaborate response maybe for the record on that Mr INGLIS We would be happy to provide a response for the record sir Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentlewoman from Texas Ms Jackson Lee for 5 minutes Ms JACKSON LEE Let me thank you very much And I think it is important to make sure that as those of us who represent Americans we appreciate what the intelligence community does But the very idea that the Chairman and Ranking Member has held this hearing and that you are having any number of hearings I think the issue is that we have to do something We have to do more to be able to ensure the trust of the American people and I raise these questions in the context of that One point that our Ranking Member made that if we cannot prove the necessity of this megadata collecting then why are we necessarily doing it And then we join with the Chairman that says it must show value but we must also have the premise and the respect for the civil liberties of the American people So I pose the first question that deals with the idea that witnesses have testified in recent hearings that the phone record data were queried 300 times last year How do you define a query and how do you define the necessity of what I call trolling And someone wanted to have me rephrase that But the gathering of millions and millions of megadata gathering how do you define query first but then how do you justify that gathering Mr INGLIS Yes ma’am I will take that question So first the court has approved procedures by which we can form a selector and the reasonable articulable suspicion standard was what we described earlier And less than 300 times in 2012 we approved a selector for entering the database The court also approves what is called—— Ms JACKSON LEE So the query is based upon permission by the FISA court 36 Mr INGLIS Yes ma’am The FISA court approves the rules but as we have described in this hearing the decisions about how to form those selectors are made at the National Security Agency and subject to auditing and review Ms JACKSON LEE So the query is made without a warrant You go by criteria that has been set and then you make a query and a preliminary oversight if you will Is that what you are saying Mr INGLIS That is correct ma’am And can I just then add that the court has also given permission to do not just first hop analysis meaning what numbers are in contact with that selector but to then from those numbers go out two or three hops In many of the cases that Ms Douglas referenced earlier it was at the second hop It was at that second connection that something of interest came that then caused the Federal Bureau of Investigation to apply their resources to essentially uncover or add additional information to terrorist activities Ms JACKSON LEE Once you do the query out of the 300 then what are the next step Mr INGLIS So that query when it is returned can be a first hop query or a second or a third hop query That information is then reviewed by the National Security Agency analyst and a report would be written and disseminated to the Federal Bureau of Investigation if we see something that would be of interest to them In many cases when a query is performed nothing of consequence turns up No connections that are untoward turn up Therefore no report would be made But when—— Ms JACKSON LEE Let me ask Mr Cole Thank you very much Let me ask Mr Cole when does the DOJ become engaged The FBI of course is the investigatory arm What is the DOJ’s oversight role more specifically And how do you utilize the FISA court And as you do that I have introduced bipartisan legislation dealing with the whole issue of the FISA court It specifically asks for the release and the reporting of nonclassified opinions which I think would contribute more to the trust of the American people Would the Justice Department consider that As you answer the question Mr COLE Thank you Ms Jackson Lee Certainly we will consider that and work with you in regard to that The Justice Department’s involvement here is to first make sure that the provisions of the statute in making the application to the court meet the standards that have been set out under law So we are in the process of the application and making sure through legal advice that this in fact meets the standards set out by the statute as passed by Congress We also engage with the court for any questions that the court may have as to how this will be done what kind of oversight will be done what kind of limitations will be imposed So that we end up with what is a court-authorized system as described by Mr Inglis where we go and make those and have NSA make that determination We will—— Ms JACKSON LEE Mr Cole—— Mr COLE continuing Audit as well the determinations on a random basis to make sure that they are in compliance with what 37 the court has ordered And if they are not in compliance we will then report that to the court and then oversee with the court’s supervision fixing those compliance issues to make sure that they do comply Ms JACKSON LEE Let me interrupt you so I can just get this last question in to Mr Inglis Mr Inglis—thank you very much Mr Inglis let me just put this question out We have had a release of data and a suggestion that the release that has been given by an individual that is now traveling around the world has a dastardly impact on knowing the system of collection of data in the person of Mr Snowden Can you speak generally to the idea of the impact and can you also express the reason for 70 percent of the intelligence budget being used for contractors I offer to you 2434 that is asking for a study for that a bill that I have introduced But I would like to know those two questions quickly please Mr INGLIS Yes ma’am On the first question I would say that the impact associated with Mr Snowden’s disclosures can be very very harmful It is too soon to tell whether in fact adversaries will take great note of the things that he has disclosed But those capabilities sensitive capabilities give them a playbook as to how they would avoid right the time and attention of the U S foreign intelligence and for that matter domestic intelligence organizations So we are very concerned about that Mr Litt would like to take the second question on contractors Mr LITT Yes on the question about contractors it is important to differentiate between two kinds of contractors When we—when Lockheed Martin or somebody builds a satellite for us that is a contractor And so when you talk about 70 percent of the budget being contractors and I don’t know that number offhand but I will assume it is accurate that includes all the contracts for building of satellites for rental of space and so on and so forth There is another category of contractors which we call core contractors which are the people who work in the building side-byside with us We have been working very hard to reduce the number of core contractors I think in the last 5 years we have reduced it by 36 percent Obviously as a result of what has happened recently we are looking again at whether certain categories of employees should not be contractors but should be made Government employees Ms JACKSON LEE Mr Litt we have had this discussion before Mr GOODLATTE The time of the gentlewoman has expired Ms JACKSON LEE I think you need help and I would like to work with you on the legislation Thank you Mr Chairman I would like to work with Mr Litt to get that done and get that more—— Mr GOODLATTE The time of the gentlewoman has expired Ms JACKSON LEE I yield back Mr GOODLATTE The gentleman from Iowa Mr King is recognized for 5 minutes Mr KING Thank you Mr Chairman I appreciate this hearing and the testimony of the witnesses And I would first turn to Mr Litt And if I remember in your opening statement you made mention that there wasn’t restriction 38 on foreign intelligence surveillance prior to 1978 and the FISA court Am I correct on that Mr LITT Yes there was no judicial involvement Mr KING And I would submit that every Nation that I know of does foreign surveillance and I don’t know of other Nations that have judicial interference with the national security activity of foreign surveillance And are you aware of any Mr LITT I can’t speak for every Nation but I think generally speaking you are correct that other Nations do not have their courts involved in foreign intelligence activities Mr KING So we are relatively unique in that and neither do I understand why we would be concerned about the privacy or I will say the manufactured constitutional rights of foreign persons in foreign countries communicating with other foreign persons in foreign countries I don’t know why we would worry about their privacy And I don’t know why we would worry about their privacy if there is a nexus that might happen to be in the United States provided it didn’t interfere with the rights of a U S person Would you agree with that Mr LITT Well I think from the point of view of the Constitution it is correct that as the Deputy Attorney General said that foreigners generally aren’t protected by the Constitution It is nonetheless true that we don’t go out indiscriminately even as to foreigners We only collect intelligence that has a valid foreign intelligence purpose Mr KING Yes I understand the decency of the American people but are we safer when we have judges deciding what we can surveil in foreign countries when there are foreign persons Mr LITT I think that we have found that the operation of FISA so far has allowed us to collect the foreign intelligence that we need to collect to protect the Nation Mr KING And I am hearing that Just another way of asking questions about this The phone companies collect a lot of data and it was mentioned that you like to keep that data for 5 years the metadata But some only keep it for a year and a half If an agreement could be reached with the phone companies to maintain that data for a 5-year period of time the duration that you request wouldn’t that be a firewall that would be more reliable than having to have the facility to restore all that data Mr Inglis Mr INGLIS Yes sir A reasonable question and I think that there are some challenges that could be overcome The first is that those companies collect that data for their own business purposes not necessarily for the Government’s And so to rely upon what they hold themselves there would have to be some basis by which you could either compel them or have some confidence that over time—— Mr KING A contractual agreement perhaps Mr INGLIS Pardon sir Mr KING A contractual agreement perhaps Mr INGLIS Contractual agreement possibly some liability protection I will leave the legal framing of that to those who do statute and policy 39 Two you would have to have some confidence that you could efficiently quickly query that data Mr KING Sure Mr INGLIS And so if you had multiple providers upwards of more than two providers you would then run pillar to post querying that data to—— Mr KING Could I ask you to take a careful look at that and come back to me with a—with really a serious reasoned answer You are giving me a good answer so far I would just like you to dig in—— Mr INGLIS Yes sir we will So it turns out that the Senate Select Committee on Intelligence House Permanent Select Committee on Intelligence and the executive branch have all asked us a question along those lines We would be happy to provide those to you Mr KING Curious Okay Well my clock is ticking down but I will stick with you Mr Inglis Now I am just going to ask this question and it is not really a hypothetical but point it out this way And I am going to go through the list So you have to check on each one and I will come back if I need to Do we have the ability to not necessarily listen in but track every phone call in the United States That is one question Second one do we have the ability to track any email in the United States Do we have the ability to track Web site activity any Web site activity in the United States Do we have the ability to enter into active chat rooms and in real time monitor Do we have the ability to track any electronic credit or debit transactions including the ATM transaction mentioned by the gentlelady from California Do we have the ability to locate cell phones that are active Do we have the ability to track GPS locators whether they are on vehicles or other devices And then I know my clock is running down so I want to pour a little more in here It is reported by the Obama campaign that they profiled voters with open source data and used that data to target voters for turnout and voter suppression The IRS has used their search engine to target the President’s political enemies Now if we can go this far if all of these things are happening if the answer is relatively yes to this list that I have given then I would charge that it would be likely impossible to drive from Bangor Maine to Los Angeles without leaving a data trail in this country And all of these things can be justified by the Constitution by statute by case law Am I close And how would you respond to that big question Mr INGLIS Yes sir If the predicate to each of those eight questions is ‘‘in the U S ’’ and if the further predicate is ‘‘can the NSA ’’ the answer would be no to all of those questions Is it technically feasible to do some of those things Of course And some of those things are in fact done by marketing organizations by the telecommunications writers who attempt to determine the flow and the allocation of resource bandwidth to their resources But the National Security Agency as a foreign intelligence 40 entity lacks the authority and frankly lacks the collection to do the things that are on that list of eight questions Mr KING I would like to drill into that a little deeper if I had the time but I thank you and I will yield back Mr INGLIS Sir we would be happy to take a visit at NSA or come down and talk to you in whatever detail you would prefer Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from Tennessee Mr Cohen for 5 minutes Mr COHEN Thank you Mr Chair First I would like to make a point One of the previous questioners took the opportunity to attack the Administration and said this Administration has used the ends to justify the means in many areas I believe Mr Cole you said that all these programs started under the Bush administration and have not differed from Republican and Democrat Is that correct Mr COLE That is correct sir Mr COHEN I appreciate your clearing it up And then to this question that the President and this Administration on the IRS I believe it has come out that they not only looked at Tea Party but they looked at liberal groups and any group that they felt was more than 50 percent political to look at in IRS And it is wrong to question this President on those issues once the facts have come out to show that it was not a partisan or issue-driven area And I find—take umbrage on behalf of the Administration at such questions and such allegations Now let me ask you this sir Mr Snowden what security status did he have He could see anything there that he wanted to Was he limited in what he had access to Mr COLE Let me put that over to Mr Inglis Mr COHEN Sure Mr INGLIS Mr Snowden had a top secret special compartmented intelligence clearance That is standard for someone in the U S intelligence community given access to top secret information He as a system administrator had additional privileges that he could then set the permissions on various devices within the information systems who could access things and how you could move data around Mr COHEN Generally how many people—how many people generally are in the same level as he was to access this information Mr INGLIS Across the population—and again in this forum I will be general in my description But across the population numbering in tens of thousands and you would expect hundreds of people would have those sorts of extraordinary permission system administrator permissions—— Mr COHEN So tens of thousands of people could have done what Snowden did Mr INGLIS No sir I would say that perhaps hundreds And could I make a further distinction between his privileges in terms of what he could control Like any organization NSA has a side of its information architecture that is intended to make information available to people so that they might discover capabilities they might find each other 41 they might pass email to each other It is intended to be a free exchange of information But then there is a production side that is much more rigorously controlled and there is a need-to-know rule philosophy on that side Now Mr Snowden took ruthless advantage of the former and did not have access to the latter except in some limited circumstances in the training that he undertook in the last few months of his—— Mr COHEN I asked in a letter and you responded to me—I believe I got it last night—about the background on the security processing of Mr Snowden And I was concerned that a high school dropout not that there can’t be great high school dropouts but it shows you can’t meet certain criteria Because basically finishing high school is you are going to jump through the loops That guy wouldn’t jump through the loops and he has shown at other places he wouldn’t jump through the hoops and he wouldn’t do that To put him in that type of top security level I think is questionable But it was said that the Associate Directorate for Security and Counterintelligence begins the clearance process Is any of the work of the Associate Directorate for Security and Counterintelligence contracted out or is that all done by Government employees Mr INGLIS I think the determinations of whether to grant a clearance or not that is an inherently governmental function And so that would be retained by Government employees But in the investigation the determination of the facts and circumstances associated with anyone’s clearance determination some of that would be contracted out And I could provide the details—— Mr COHEN Does it concern you at all Should it be contracted out or should that be strictly in-house Mr INGLIS There is an inherently governmental decision to be made in that and that therefore should be withheld and retained inside the Government The production of information in terms of conducting interviews investigations I think that some of that can be reasonably contracted out such that the synthesis and an examination of that is done by someone that has the higher trust Mr COHEN And how did Mr Snowden take this data with him He has got certain information in Moscow with him now How did he do that Mr INGLIS Sir I don’t actually know precisely how he took the information with him and it is a matter of investigation I think in due course we will know and we would be happy to provide that to you Mr COHEN But he would have probably taken it on some type of a disk or some type of a little with him Mr INGLIS I just—— Mr COHEN From a secure facility I presume—— Mr INGLIS I would just be speculating I think that that is possible Mr COHEN Well should there not be some changes in the procedures to make sure that people don’t leave that secure facility with disks or anything else 42 Mr INGLIS Mr Cohen I would say that we are examining all of that There are some controls already in the system about who can download to secondary storage devices—— Mr COHEN All right Let me ask Mr Cole You mentioned that the judges come from different Administrations the FISA judges Would it surprise you to know that 10 of the 11 judges all came— were appointed by Republican Presidents Mr COLE These are—it wouldn’t surprise me It wouldn’t surprise me either way These are selections that are made by the Chief Justice Mr COHEN By the Chief Justice who is a Republican appointee And he has picked—10 of the 11 judges he has picked were appointed by Republican Presidents Yet if you go back over history back to Jimmy Carter it is about the same number of years There is a difference of 4 of Democratic and Republican Presidents But he chose Republicans Do you think there should be some change to make sure that there is possibly an ideological balance on that FISA court Mr GOWDY presiding You can answer the question The gentleman’s time has expired but you can answer the question Mr COLE I think those are issues that we can discuss that we try to take partisan politics out of the judicial aspect of it and it operates I think best when it is insulated from that Mr COHEN I thank the panel and I thank the gentleman from the Palmetto State Mr GOWDY Thank the gentleman from the Volunteer State The Chair would now recognize the gentleman from Texas Judge Poe Mr POE Thank the Chair Thank you for being here My background is as the Chairman just mentioned a judge I spent 22 years at the criminal courthouse in Houston trying everything from stealing to killing So I don’t like criminals at all But I have looked at the Constitution and read it and I am going to just read you one thing one phrase that all of you know probably by memory It is the Fourth Amendment ‘‘The right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated No warrants shall issue except upon probable cause supported by oath or affirmation and particularly describing the place to be seized and searched and the persons or things to be seized ’’ And as we all know generally speaking historically warrants are brought to judges by law enforcement and the judge signs or doesn’t sign the warrant issuing the paper to go out and seize that person in that specific place Now I have read that numerous times and I don’t see in here anywhere as an exception for national security Do any of you see a national security exemption to the Fourth Amendment Mr LITT There is not a national security exemption but several courts have held that there is—that the warrant requirement of the Fourth Amendment does not extend to the conduct of foreign intelligence That is not to say that the reasonableness requirement doesn’t apply Mr POE Okay 43 Mr LITT But the warrant requirement—— Mr POE I just have a little bit of time I understand your answer We are not talking now about foreign intelligence Let us set the foreign issue and terrorists overseas where they are running wild set that aside Let us talk about searches and seizures in the United States of American citizens Question is there a national security exception to the Fourth Amendment when it comes to American citizens in the United States Do you see that in the Fourth Amendment any of you Mr LITT Again there is not a national security exception There is a case of the Supreme Court called United States v United States District Court It is possible to have foreign intelligence collection against Americans and I offer you the situation of an American who is a spy for Russia We can be collecting valid foreign intelligence there even though that person is an American It happens that the Congress in the FISA has established warrant requirements for electronic surveillance and so on Mr POE I understand that But the Fourth Amendment doesn’t give that example Mr LITT With due respect there are cases that say—— Mr POE Okay Mr LITT continuing There is an exception—— Mr POE We are going to argue until the sun goes down The Fourth Amendment doesn’t mention national security exception when it comes to the Fourth Amendment That has been expanded throughout the years because of FISA because of court rulings but it is not in the Fourth Amendment And I think that we should remember that the Fourth Amendment was written because of what was going on with King George III how he was going into people’s homes in the United States— the Colonies in those days—and seizing things with his Redcoats without a warrant That is the basis of it And I hope we don’t get to a point in this country in the name of national security that we infringe and bruise the Fourth Amendment I don’t know about the four of you—— Mr NADLER Would the gentleman yield Mr POE I won’t Sorry I don’t know about the four of you but I have been in the former Soviet Union when it was—we can’t use this word anymore—Communistic And I was there and the actions of the citizens were constantly under surveillance by government And anything that was done the government would say we are doing this for national security reasons because of those bad old Americans overseas We go into your homes We bruise the concept of rights all in the name of national security That concerns me and I hope as we move forward as a Congress we rein in the concept that it is okay to bruise the spirit of the Constitution in the name of national security Question people who have had their—the law NSA violated I think Snowden I don’t like him at all but we would have never known what happened if he hadn’t have told us Do they have a recourse against the Government for improperly seizure of their records Is there a recourse 44 Mr GOWDY You may answer the judge’s question His time is expired but you may answer the judge’s question Mr COLE It depends on the nature of that seizure depending on where they came from For example if it comes from a third party it is not necessarily their records But the phone company can certainly challenge the subpoenas And if it was to be used against them in a court they would be in a position to be able to challenge that use Mr POE I thank the Chairman I have other questions I would like to submit for the record for the four panelists Mr GOWDY And I am confident that one of your colleagues will yield you time Your Honor since you have made it known that you want it And if they won’t I will give you mine The Chair will now recognize the gentleman from Georgia Mr Johnson Mr JOHNSON Thank you Mr Chairman Mr Cole to follow up on some of the principles that you were just talking about are you familiar with the case of State v Maryland back in 1979 U S Supreme Court Mr COLE Smith v Maryland Mr JOHNSON Yes Mr COLE Yes I am sir Mr JOHNSON Having to do with telephone records Is that correct Mr COLE That is correct Mr JOHNSON And the question was whether or not there was a Fourth Amendment privacy interest in telephone records held by the telephone company Mr COLE That is correct That was the issue Mr JOHNSON And how did the court rule on that issue Mr COLE The court ruled that there was no reasonable expectation of privacy in those records because they really belong to the telephone company They didn’t belong to the individual who they related to Mr JOHNSON Now is that case applicable to the case or to the issue of collection of metadata Mr COLE Yes sir it is Mr JOHNSON All right And so it was the collection of metadata domestic-to-domestic phone calls metadata—not content but metadata Domestic-to-domestic domestic-to-foreign foreign-to-domestic Is that correct Mr COLE That is correct That is the metadata that we are talking about here Mr JOHNSON That is the program that Edward Snowden revealed Is that correct Mr COLE That is correct Mr JOHNSON And he also revealed a program called the PRISM program Is that correct Mr COLE That is correct as well Mr JOHNSON The PRISM program was a program that enabled the collection of Internet metadata not content Is that correct Mr COLE No that is not correct Mr JOHNSON That is not correct Okay Explain to me what the PRISM program—— 45 Mr COLE PRISM and I can defer to some of my colleagues if I get any of this wrong PRISM is under the 702 provision which allows collection of content but it is only content of non-U S persons who are reasonably believed to be outside of the United States Mr JOHNSON Okay So that is the PRISM program which collects data including content from foreign communications and then there is a minimalization process of eliminating domestic-toforeign or foreign-to-domestic communications that were not relevant to national security Is that correct Mr COLE That is generally correct or some serious impending death or something like that if there is an emergency But generally that is correct Mr JOHNSON Now that program certainly we don’t want our adversaries to know of what we are doing to watch them and to surveil them foreign intelligence collection We certainly don’t want that to be exposed to the public Mr COLE No sir We do not Mr JOHNSON We need that to be kind of secret But with respect to the data collection of domestic-to-domestic metadata why is it necessary that the American people not know of that program Why is it that that program has to be confidential classified secret Mr COLE I wasn’t there at the time that it was classified but I can give a little bit of speculation The more people know about the way we go about trying to identify terrorist networks the more they will avoid the kinds of ways that we use to do that They may start to avoid communicating through phones Mr JOHNSON If they can’t communicate through phones or can’t communicate over the Internet what will they do Take a can on one end and put a string through it and a can on the other end Would they communicate like that Mr COLE It may be more difficult for them to communicate but they may find other ways or other mechanisms or other providers to do it through Mr JOHNSON Well it is always going to be a cat and mouse game in that regard Mr COLE That is correct Mr JOHNSON The American people in my opinion should know of the activities that affect them the collection of telephone metadata is not personal information However the Government collecting this information and creating a database with which it can then use to investigate information that is acquired from foreign sources related to national security or terrorist act the American people may conclude that they want their Government to collect that data But if they don’t know that the Government is collecting the data and then they find out after it is leaked by someone who thinks that it is illegal they find out in that way and then they start to lose confidence in their Government Is that the situation that we find ourselves in today anyone Mr GOWDY The gentleman’s time has expired You may answer the question 46 Mr JOHNSON And by the way I am a former judge too Laughter Mr GOWDY Your Honor had I known that I would have addressed you appropriately Please accept my apologies Your Honor Mr JOHNSON Thank you Thank you Mr Chairman Mr COLE I think that is always the kind of issue that we wrestle with which is the issue of trying to balance the need to protect the secrecy of some of these programs so that they will be effective with the need to be as transparent as we can about it because that is the kind of society we live in where people participate in the decisions of government So those are always difficult balances to find and that is the one we are trying to find and we find ourselves in right now Mr JOHNSON Thank you Mr GOWDY Thank you Judge Johnson The Chair would now recognize the gentleman from Idaho Mr Labrador Mr LABRADOR Thank you Mr Chairman You know I think more important than balancing those needs is to balance our liberties with our security and I think that is what we are all concerned about today We are looking at a system that is allowing the Government to collect everybody’s metadata And just recently I had the opportunity to travel through a series of countries and I won’t mention which country it is but I was told before I went to that country that it was a police state And I had heard that term my entire life I had never really understood what it meant I had heard about the USSR and other Nations that were constantly surveilling their citizens and the people who visited that country and I had never experienced what I experienced when I was there Where I actually felt literally like I was being observed in very place that I went And the place was very secure The place was very safe There was very little crime There were very few things happening But it was because people had given up their liberty in exchange for security And I think that is what this Committee and I think what most Americans are concerned about that we are going to give up our liberties in exchange for security So I just have a few questions Mr Litt you said in your introductory statement that this was not a rubber stamp that the judges were not a rubber stamp But I had a hard time following your argument because your argument seems to be that because the judges are actually reading the material it is not a rubber stamp That seems to be a nonsensical argument to me I can either rubber stamp something by reading the material or not reading the material That doesn’t seem to be a determination of whether somebody is rubber stamping something It seems to me that the difference—I was a criminal defense attorney Never a judge just a criminal defense attorney Mr LITT There is still time sir Mr LABRADOR But no thank you And it seems to me that there is always a check and balance on the power of the Government Even when you go get a warrant when something happens you 47 still have an adversary on the other side who can contest it in court who can contest it in hearings who can contest all those things But that is not happening in the FISA court How can we address that Mr LITT So I have a couple of things to say if I would On your first point about the FISC being a rubber stamp it is not just that they read the opinions I mean the idea of a rubber stamp is that they don’t think about it They just say you are giving me this approved And my point is that is not what happens They not only read it They ask questions They think about it They push back They do a careful study and analysis So it wasn’t—I didn’t mean to suggest that it is only because they read the—— Mr LABRADOR Okay All right Mr LITT On your second point if I can just get philosophical for a second this goes to one of the other points that I made in my opening remarks and that is that what we have here is not—is the oversight of intelligence activities It is not a litigation It is not a criminal trial It is not a civil trial This is a situation—— Mr LABRADOR And I understand that but let me stop you there And again like Judge Poe did just a minute ago I am not so worried about Section 702 I am not so worried about foreign intelligence I am worried about you are gathering my information It is my personal data that right now the United States has and I am concerned about that I am concerned about you having the data the metadata of every single American and I think there should be some mechanism for us to be able to counter whatever the—and I have all respect for judges I served as a lawyer for 15 years They were usually right and I was usually wrong At least I would tell them that And I have a great respect for the legal system for the judiciary system But I am concerned when you don’t have somebody on the other side advocating for the rights of citizens of the United States and it is something that we need to discuss here in this Committee and we need to figure out Now let us go to Smith v Maryland Mr Cole you mentioned Smith v Maryland It is totally not an analogous case I believe to what we are talking about here What in the FISA statute or in the PATRIOT Act allows you to collect the data of every single American That is what I am not understanding Because even if you follow Smith v Maryland you are talking about one individual who was suspected of committing a crime and now you are telling me and we have just recently learned that we are collecting the metadata of every single American And that concerns me Mr COLE I think there are two different issues that are involved here Smith v Maryland only goes to the issue of whether the Fourth Amendment applies to this kind of data not whether the Fourth Amendment prohibits or allows the kind of collection under 215 That is a separate issue and that is governed by the provisions of the statute of Section 215 which requires that in order for a court to approve the collection method that is being put forth it 48 must have demonstrated to it that the data is relevant to the investigation of the specified terrorist groups The relevance is found in the combination of the two orders The limitations first where the court says you can’t just roam through this any time you want for any purpose you want any day you want any time you want That cannot be done You must find reasonable articulable suspicion that the number you want to query is related to one of these terrorist groups Mr LABRADOR And I understand that I believe that this argument before my time has expired but I think that determination has to occur before you collect the data not after you collect the data And I think that is what is wrong with what you guys are doing at this time But I appreciate your service I appreciate you being here today Mr GOWDY I thank the gentleman from Idaho The Chair will now recognize the gentlelady from California Ms Chu Ms CHU Thank you Mr Chair I was listening to the steps that you outlined for actually doing a query for the metabase the metadata And you were describing it as a way of showing what kind of constraints you use on this information So Mr Inglis I would like to ask this It sounds to me like first you have determined that the phone numbers of all the American people is relevant Then in order to actually query the database you have to establish reasonable articulable suspicion And in order to do that you have said that 22 people at NSA can approve the query I wonder why is it that these 22 people have this power They appear to be acting like court judges and why would they be performing the job that the FISA courts were set up to do In other words shouldn’t the agency go to a FISA court to seek to retrieve data from a third party’s database when they actually have need of specified information and who are these 22 people Mr INGLIS So the court in its order has prescribed that particular procedure has prescribed that those people that number of people would have that authority and that those people would follow court-ordered procedure and that they be trained to a standard again approved by the court And so that is how we came to that particular implementation Defer to Mr Cole for any of the legal analysis under that Mr COLE I think the only issue that I would take with how you describe it is by saying you first have to define or find that all of those records are relevant This is a combination of two different court orders that come together and they have to be read together as you look at this So it is not just one or the other It is a whole program that is put together and presented to the court with the limitations and the oversight and the restrictions on how it can be accessed Only with all of those considered as a whole does the court then make the relevancy determination Ms CHU Well then let me continue on with the description that you gave with regard to how you proceed along these lines which is that after they approve it then it appears that after the fact you 49 have an audit and then you file papers with the court on this audit And then the Department of Justice reviews it Mr COLE It is not exactly in that order and again Mr Inglis can correct me if I am wrong There is the documented reasonable articulable suspicion that takes place ahead of time That is then reviewed again by supervisors ahead of time to make sure that it is being done properly and the standards are being applied properly The query is then made On a periodic basis the Department of Justice and the Office of the Director of National Intelligence the Inspector General for NSA all sample and look at these things to make sure that in fact it is being applied properly and that it is being done properly and that there aren’t any misapplications of it And there are periodic reports that go to the court of any compliance problems We have to talk about every 90 days getting renewed authority And when there are any issues that come up and any problems that are discovered they are reported to the Congress and to the Intelligence and the Judiciary Committees as well So there are a lot of different checks and balances and audits that go on both before the query is made as well as after the query is made And if there are problems found with the query then that is all fixed and whatever is collected is remediated Ms CHU Well my concern with regard to the second half is that it is retroactive and it seems that more of the protection should be on the first half of these steps that you are talking about And are those documents with regard to your DOJ reviews of the queries are those available to this Committee Mr COLE I would imagine that those would probably be classified documents I would have to go back and check but that is— it certainly would look at the facts that we have and how we get them and what the nature of them is So my guess would be that those would be classified Ms CHU Are they—well you said they were reviewed by Congress but where Mr COLE I think that the review takes place There are reports that are made When leadership of the Committee or other aspects of the Committee want briefings in classified settings those are arranged as well Ms CHU Okay Well let me ask also about the issue of court documents I understand that secrecy is essential when conducting any intelligence investigations But we have to ensure that these efforts are working within the legal framework of the Constitution We learned earlier this week that a FISA court agreed to declassify documents from a 2008 case in which Yahoo raised concerns about NSA’s data collecting program and other requests have been filed by companies that are in similar situations What is the harm in releasing this type of information Shouldn’t the American public be informed about how this type of information is collected and used and why couldn’t you redact the information that is of security concern Mr GOWDY You may answer the question The gentlelady’s time has expired but you may answer her question Mr LITT I think we all agree that that is something that should be done It is difficult to do because frequently the classified infor- 50 mation is fully intertwined with the legal analysis But we recognize that it is our obligation to make as much of this available to the public as we can and we are working as hard as we can to accomplish that Ms CHU Thank you Mr GOWDY Thank the gentlelady from California The Chair will now recognize the gentleman from Texas Mr Farenthold Mr FARENTHOLD Thank you Mr Chairman I don’t know where to start here I have got so many questions I guess I will start with Mr Cole Do you see any limitation under the Fourth Amendment or the PATRIOT Act on the Government’s power to gather information in mass on people Mr COLE Yes sir I see very many limitations from both the Fourth Amendment and from the PATRIOT Act and from the FISA Act There are many many limitations that are put in and many many checks and balances both through the United States Congress and the courts Mr FARENTHOLD All right So let us go over a couple of those I assume you would have to go to the FISA court and those are one of the checks and balances Could you go to the FISA court and argue that you had a right to obtain say either an individual’s or every American’s tax return Could you argue that with a straight face Mr COLE Well I think they—— Mr FARENTHOLD I have got a long list of them Yes or no Mr COLE Any individual’s tax return there are separate laws that cover the acquisition of tax returns Mr FARENTHOLD All right So you can get tax returns Could you get at somebody’s permanent record from school Mr COLE If it was relevant to the investigation you could go to the FISA court and ask for that—— Mr FARENTHOLD Could you get somebody’s hotel records Mr COLE If it was relevant to the investigation Mr FARENTHOLD Could you get records of everybody who stayed in a particular hotel at any time Mr COLE If you can demonstrate to the court that it is relevant to the investigation Mr FARENTHOLD Okay Could you—you could get my Visa Mastercard records Mr COLE If I can demonstrate to the court that it is relevant—— Mr FARENTHOLD All right Could you demonstrate could you argue with a straight face you could demonstrate the court to create a database of everybody’s Visa and Mastercard every financial transactions that happened in the country because Visa and Mastercard only keep those for a couple of years Mr COLE Mr Farenthold that is all dependent on exactly what I am investigating and what the relevance of information would be and how it would be used and how it would be limited All of those factors have to go into it It is not a simple yes or no black or white issue It is a very complicated issue Mr FARENTHOLD Could you get Google searches 51 Mr COLE I am sorry sir Mr FARENTHOLD Could you get all the searches I made on a search engine Mr COLE Again it would depend I would have to make a showing to the court that that kind of information was relevant to the investigation Mr FARENTHOLD Could you get all Google searches and then come back and say we are going to search them later when we have got that information Mr COLE It would depend on the way that I would be able to search them And again under 215 of these—of this statute that we are talking about it is only if I can show that it is related to specific terrorist organizations It is not for anything under the sun Mr FARENTHOLD Can you get the GPS data from my phone too probably Mr COLE I am sorry Mr FARENTHOLD You can probably make a good argument for getting the GPS data out of my phones or the mappings off where I use on my phones too Mr COLE Again there is great limitations on how I can do that and only if it is relevant to an investigation of those specific terrorist organizations Mr FARENTHOLD All right But how is having every phone call that I make to my wife to my daughter relevant to any terror investigation Mr COLE I don’t know that every call you make to your wife or your daughter—— Mr FARENTHOLD But you have got them Mr COLE I don’t know that they would be relevant and we would probably not seek to query them because we wouldn’t have the information that we would need to make that query Mr FARENTHOLD But somebody like Mr Snowden might be able to query them without your knowledge Mr COLE I don’t believe that is true but Mr Inglis could answer that I don’t think he would have access to that or be able to do it Mr FARENTHOLD Okay Mr INGLIS We don’t believe that he could query those without our knowledge and therefore those would be caught Mr FARENTHOLD All right That is slightly reassuring The Fourth Amendment specifically was designed as Judge Poe pointed out to prohibit general warrants How could collecting every piece of phone data be perceived as anything but a general warrant Mr COLE Because the phone data according to the Supreme Court is not something within which citizens have a reasonable expectation of privacy It belongs to the phone company Mr FARENTHOLD So do I have a reasonable expectation of privacy in any information that I share with any company my Google searches the email I send Do I have a reasonable expectation of privacy in anything but maybe a letter I hand deliver to my wife in a skiff 52 Mr COLE Those are all dependent on the facts and circumstances of the documents we are talking about In the case of metadata the Supreme Court specifically ruled that there was not coverage by the Fourth Amendment because of no reasonable expectation of privacy Mr FARENTHOLD I just want to point out how concerned I am about this data being so easily available and just with a stroke of a pen Congress and the President could change the search criteria as to what is searched or change the definition of a terrorist or search—the fact that this data exists in the hands of the Government We saw what the IRS has done with tax returns targeting people for political belief Let me ask you one other quick question Why do these orders not violate the First Amendment We have talked a lot about the Fourth Amendment but why doesn’t it violate the First Amendment my right to freedom of association and my freedom of speech having the Government know who I am talking to and when Mr COLE Again these are issues that are looked at by the court in determining whether any constitutional rights are involved We don’t know who it is that has a specific phone number that is being called under this Mr FARENTHOLD And you can’t look that up on one page on the Internet I yield back Mr GOWDY The gentleman’s time has expired The Chair will now recognize the gentleman from Florida Mr Deutch Mr DEUTCH Thank you Mr Chairman Mr Chairman like many Americans I was shocked by the revelations that the NSA has been secretly collecting phone records Internet data on millions of Americans thanks to a lawfully issued warrant approved by the Foreign Intelligence Surveillance Court often called the FISA court Many Members of Congress myself included were left completely in the dark about the extent of the NSA’s data mining program and I worry about the balance between legitimate national security needs and the constitutionally protected rights of all Americans The Government is stockpiling sensitive personal data on a grand scale Intelligence officers contractors and personnel only need a rubber stamp warrant from the FISA court to then learn virtually everything there is to know about an American citizen The American people have a right to know about this program and at the very least know that such a program is operating within our system of checks and balances And I believe Congress has a constitutional obligation to protect individual privacy rights and I believe it is time to reexamine the PATRIOT Act insert greater accountability into the FISA court and ensure that our laws cannot be interpreted behind the backs of the American public With this hearing this Committee has begun this important work of oversight and repair and I thank the Chairman and the Ranking Member for calling this hearing I thank the witnesses as well for participating Mr Cole I want to ask you about the October 2011 letter sent by then-Assistant Attorney General Ronald Weich to Senators 53 Wyden and Udall regarding Section 215 The disturbing information that Senators Wyden and Udall learned however was classified and was thus kept from the American public and even most Members of Congress Now Mr Weich seemed to imply in his response to Senators Wyden and Udall that because Congress or at least a select number of Members of Congress anyway received intelligence briefings in accordance with the PATRIOT Act that there is no cause for alarm that the Government was using some sort of secret law secret law to expand its surveillance activities Now the PATRIOT Act was passed in response to the horrific attacks on 9 11 designed to bolster national security by expanding the investigative techniques used by the Government and law enforcement officials to hunt down suspected terrorists something that we all agree is important But Section 215 had a standard of relevance and there had to be concrete information linking a person to a terrorist organization before the NSA could secure that person’s information Instead what we have learned is that the FISA court has essentially rewritten Section 215 to say that any and all person’s records may be considered relevant therefore allowing the NSA to indiscriminately collect sensitive data on all Americans The fact is in 2012 the Government made 1 789 requests to conduct electronic surveillance The court approved 1 788 and the Government withdrew the other Now as a Member of Congress who was not privy to those intelligence briefings I had to accept Mr Weich’s assurance that there is no secret law But in the aftermath of these recent leaks however it seems that there may be secret laws Laws not passed by Congress Laws not publicly interpreted by the Supreme Court but rather secret laws born out of a classified interpretation of the PATRIOT Act by the FISA court The New York Times recently reported that the FISA court has quietly become almost a parallel Supreme Court serving as the ultimate arbiter on surveillance issues I would point out with only the arguments of the Federal Government alone to be considered Now even a former FISA judge has come forward with concerns that the body has become a de facto administrative agency which makes and approves rules for others to follow Now that it has become public that FISA courts have broadly perhaps even unconstitutionally redefined the relevance standard in Section 215 is it still the department’s position that the Government isn’t essentially operating with a secret playbook Mr COLE Mr Deutch I don’t think we are operating with a secret playbook There is again as we have discussed in many instances in our hearing today the tension that exists between maintaining the integrity and the secrecy of some of the national security investigative tools that we use and making sure that people know about it We have in the course of the reauthorization of the PATRIOT Act on several occasions done classified briefings made individual—— Mr DEUTCH Mr Cole I am sorry to cut you off but I only have a second left Let me just broaden the question then for a second 54 because I am speaking about these decisions that the FISA courts make as the supreme arbiter of this law And stepping back for a moment at a more basic level does the panel understand why the American people may find this revelation shocking that secret court rulings could expand the powers of the Federal Government beyond perhaps what was originally authorized by law and that an entire chapter in our laws is being written outside of the three branches of Government altogether Mr COLE I think again this is an area where we are looking to see what kinds of opinions from the FISA court we can make public These are things that we are trying to do and trying to go through All significant opinions and all significant pleadings that have been filed with the FISA court are made available to the Committees to the Intelligence Committee and Judiciary Committee so they can see them We are not trying to keep them secret We are just trying to maintain the classified nature of some of these But these are issues that we are trying to grapple with and trying to determine what we can let out so that we can have this broader discussion Mr GOWDY I thank the gentleman from Florida The Chair would now recognize the gentleman from North Carolina the former United States attorney Mr Holding Mr HOLDING Thank you Mr Chairman In a different professional capacity I successfully used FISA warrants to investigate disrupt and prosecute terrorists and terrorist acts and I can attest that not only are they effective but there are very high burdens and hurdles to use FISA warrants And they are significant But I want to step for the few moments that I have outside of the prosecution of terrorism and investigation of terrorism and just talk about the use of telephone records in everyday garden-variety criminal cases whether they are public corruption cases fraud cases drug cases And Mr Cole I will direct my questions to you If you could step through for us how the Department of Justice prosecutors and investigative agencies obtain telephone records just in garden-variety cases and how they are ultimately used Mr COLE There are two different ways we do it pursuant to the law Historical telephone records that exist for prior calls we can get with grand jury subpoenas in a normal criminal case Those can be issued by a prosecutor delivered to the telephone provider and ask for a range of data Mr HOLDING So no judicial involvement just a grand jury involved Mr COLE There is no judicial involvement just the grand jury involvement and the prosecutor defines the scope and the nature and the numbers that are involved Mr HOLDING So the prosecutor could request telephone records going back as long as they want to the only limitation being does the telephone company still have those records Mr COLE There would be one additional limitation The telephone company could challenge the subpoena as being overly burdensome and irrelevant to any reasonable investigation and the 55 court could take that up which would be in a sealed proceeding because it is a grand jury proceeding So it wouldn’t be public Mr HOLDING And what would the standard be that the judge would use to evaluate the motion to quash Mr COLE Generally relevance to the investigation Mr HOLDING So the Fourth Amendment doesn’t come into play there Mr COLE Not for telephone records It does not Mr HOLDING And this is available to prosecutors Federal prosecutors across the country Mr COLE Yes it is Mr HOLDING And the only showing that they have to make to the grand jury is what that it is relevant Mr COLE That it is relevant Mr HOLDING And once you have gotten the telephone records and it shows let us say hits between the person the subject that you are investigating and a relevant other person in the investigation then what do you do to start listening to those telephone calls Mr COLE Well if we wanted to listen to any telephone calls and that would obviously be just telephone calls that would start happening into the future we would have to go to the court and seek authorization under Title III of the U S Code to get a wiretap And we would have to show probable cause to believe that in fact the person talking on the phone was involved in criminal activity and that through that phone they were discussing criminal activity And we would obtain evidence of that criminal activity by listening to the calls Mr HOLDING Would you hazard to make a guess of how many wiretaps are in use on a daily basis Mr COLE I couldn’t hazard a guess but there are a fair number of them Mr HOLDING Probably hundreds perhaps Mr COLE Probably Mr HOLDING As far as my friend Mr Scott was talking about if you find evidence of some other criminal conduct during an investigation let us say during a Title III wiretap you are investigating one crime you hear a conversation that suggests that another crime is being committed are there any limitations on use Mr COLE Generally not other than the restrictions on how you can use wiretap information There are restrictions on that and the secrecy that is involved in those and the protection of innocent calls But generally you can use that information if it relates to other criminal conduct according to the rules of procedure in the law Mr HOLDING So in my take-away having heard you describe in detail how the 215 program works and the 702 program works the restrictions and the limitations on use from those two programs is much more restrictive and limited than what prosecutors and law enforcement are using on a daily basis throughout the United States investigating garden-variety crimes being committed by U S citizens Mr COLE In the main there are some differences here and there For example the burden to get a wiretap may be a higher 56 burden than for 702 coverage but it is a different burden if we wanted to do a FISA for somebody in the United States That would be again a probable cause standard but probable cause that they are involved in foreign intelligence Mr HOLDING Thank you Mr Chairman I yield back Mr GOWDY I thank the gentleman from North Carolina The Chair will now recognize the gentlelady from Washington Ms DelBene Ms DELBENE Thank you Mr Chair and thank all of you for being here today Last month when Director Mueller appeared before this Committee I stated that I agree with those who believe that greater transparency about the requests that governmental entities are making to Internet companies and providers will help inform the discussion that we are having on balancing national security with privacy rights and civil liberties And one of the questions that I asked the Director was how the FBI and the Department of Justice will respond to the request by Google that it be permitted to provide reports of the number of FISA national security requests it receives as well as their scope And at the time Director Mueller noted that this was being looked at And so I was wondering Mr Cole if you are able to share with us what the response is to this request Mr COLE Unfortunately this is a matter that is currently before the court It is in litigation So I can’t say too much about it other than to reiterate what Director Mueller said which is this is a matter that we are in fact looking at and take seriously Ms DELBENE Now we do have some data that is out there already because in March of this year Google worked with—I believe Google worked with the DOJ and the FBI to disclose in broad strokes the number of national security letters that Google receives Correct Mr COLE That is correct Ms DELBENE And so we do have some information Do we know whether that information that was released has had any impact on national security Mr COLE Generally it is hard to tell unless you have a substantial period of time afterwards as to whether or not it has an impact So we haven’t had enough time yet Ms DELBENE Okay thank you The public also now knows that the telephone metadata collection is under Section 215 the business records provision of FISA and that allows for the collection of tangible things But we have also seen reports of a now-defunct program collecting email metadata With regard to the email metadata program that is no longer being operated can you confirm that the authority used to collect that data was also Section 215 Mr COLE It was not It was the pen register trap and trace authority under FISA which is slightly different But it amounts to the same kind of thing It does not involve any content It is again only to and from 57 It doesn’t involve I believe information about identity It is just email addresses So it is very similar but not under the same provision Ms DELBENE And could you have used Section 215 to collect that information Mr COLE Hard to tell I would have to take a look at that Ms DELBENE Because I think it is important for us to know whether or not there is any limitations on the types of information within Section 215 that prevent you from collecting whether it is email metadata or GPS and geolocation information et cetera How broad is that authority Mr COLE Again it is only as broad as what the courts can find under 215 that is relevant But there are different authorities in FISA So we would have to look to see how those all work together Ms DELBENE Mr Litt were you going to—— Mr LITT No I was just going to say that it is important to remember that the 215 authority allows you to acquire existing records and documents and it is limited to that Ms DELBENE Although you could argue that geolocation information may also be existing and would you consider that to be metadata as well Mr LITT I think that the Director of the National Security Agency has stated that we are not collecting that under Section 215 and that we will come to the Congress and consult with the Congress before any decision was made to do so Ms DELBENE But you understand it is important for us to know what the breadth and limitations are as we look at policy And clearly there is some confusion here right now So we need to understand how it is being used and what information might be being collected so we can make sure intent is delivered appropriately So I agree with the President’s view that we need to set up a national conversation on balancing privacy and security But in order to have that conversation have a productive conversation we need information that is going to help fuel that conversation information like the breadth of Section 215 et cetera And so I hope we can continue that and have—and get access to more information so that we can have a productive discussion going forward And thank you for your time I yield back Mr GOWDY Thank the gentlelady from Washington The Chair would now recognize the gentleman from Texas Judge Gohmert Mr GOHMERT Thank you Mr Chairman In answer to some of the other questions you have provided an adequate defense The trouble is we have seen the abuses of Government We have seen the gathering of data And I can tell you from having been here not when the PATRIOT Act was passed originally but when it was extended back in my first term in Congress it got down to where there were only two Republicans demanding any type of safeguard I thought And there were two of us that wanted sunsets I was the one that argued for 25 minutes in our 30-minute prehearing meeting demanding sunsets and then my friend Dan Lungren had the amendments And we got at least two sunsets on 206 and 215 And the argument I made for 25 minutes that turned my 58 colleagues Republicans around in our meeting was I have seen how there can be violations of due process if everyone is not very diligent and we need the safeguards in order to have proper oversight And what we have seen and what has been disclosed of the monitoring scares me We have had hearings in this room People like Jerry Nadler have argued about dangers of Government having too much information And from my experience as a judge and chief justice with State judges and Federal judges and having practiced before a very conservative Federal judge named Bill Steger and a very liberal judge named William Wayne Justice I couldn’t imagine anybody granting the kind of orders we have now seen granted Just a blanket summary go get all of these phone records And I understand the assurances no we don’t have names with them But isn’t it true that you can go on public or private data any individual and secure the names for different numbers Isn’t that true Mr COLE There are ways to secure the names for any number of numbers maybe not every single one Mr GOHMERT And I recall back in 2002 as a chief justice at a conference getting into a debate with a CIA lawyer who was arguing look banks have all your financial records Why shouldn’t the Government And I was pointing out as a conservative it is because banks can’t show up at your house put you in handcuffs throw you to the ground and drag you off to jail which has been done by the Government So there is an important distinction And then we find out that though many of us opposed it the Consumer Financial Protection Bureau has been gathering information on everybody’s financial records But they say the same thing that most of you are saying look we are not putting the names with it But isn’t it true that the Federal—that even the NSA can get access to the information gathered by the Consumer Financial Protection Bureau Mr INGLIS Sir I imagine that could be true but I would say that we can’t pull the telephone numbers from this database under any circumstances other than that prescribed by the court Mr GOHMERT But you are entitled to go—I mean we have had this debate in here You are entitled to go on the Internet or go to private sources that any private citizen could and gather that information without violating any constitutional rights Isn’t that correct Mr INGLIS Certainly But if the premise is we would do that to match names identification personal information against the telephone numbers we don’t have access to the telephone numbers unless we follow the prescribed rules of the court pursuant to a terrorism investigation Mr GOHMERT But if you can gather the information that a private individual could and couple that with information that only the Federal Government we are now learning is gathering then it really constitutes a grave threat to privacy By the way the Consumer Financial Protection Bureau said this their Director said this in testimony before Congress 59 The bureau has also issued regulations that limit the circumstance in which it may disseminate internally share with other agencies or disclose the public confidential information share with other agencies So they know they can share with other agencies if another agency or they feel it is helpful This begins to be a little scary and the justification we get seems to be well but look there are a handful of cases where we have avoided terrorism by really gathering all this private information And it makes me think how many times could King George III have argued that look by putting officers in every one of your homes that we were uncomfortable with we ended up being able to avoid a couple of problems of violence We don’t want people in our homes and that includes the Federal Government watching through a big eye through our computers And I appreciate you being here today Thank you Mr GOWDY Thank the gentleman from Texas The Chair would now recognize the gentleman from New York Mr Jeffries Mr JEFFRIES Thank you Mr Cole am I correct that it is your position and the position of everyone on the panel that the telephone records of potentially hundreds of millions of Americans in the form of metadata as has been discussed today is relevant to a national security investigation Mr COLE They are relevant when they are only queried under the limitations that are described by the court where you have to have reasonable articulable suspicion that the phone numbert is connected to some terrorist matter and investigation Mr JEFFRIES So fundamentally it is your position that they are relevant because the court the FISA court has articulated a set of criteria by which further inquiry can be undertaken Is that correct Mr COLE They are And they are relevant because you have to have the—it is the old adage of if you are looking for the needle in the haystack you have to have the entire haystack to look through But we are not allowed to look through that haystack willy-nilly Mr JEFFRIES Right Now in terms of looking through that haystack of these phone records that are acquired based on reasonable articulable suspicion am I correct that it is 22 NSA individuals who are authorized to make the determination of reasonable articulable suspicion Is that right Mr COLE I will give that to Mr Inglis to give you the numbers Mr INGLIS That is correct sir Mr JEFFRIES Okay So these individuals don’t have to go back to the court in order to determine whether they can move forward with a more invasive inspection of the phone records of the Americans contained in the database that you have acquired Is that correct Mr INGLIS They use the rules of the court to make the limited query that the court—— 60 Mr JEFFRIES Right They are using the rules of the court but they are making the determination not the court as to the invasiveness of the further inspection Am I correct Mr INGLIS On a case-by-case basis they determine the selector Mr JEFFRIES Okay Now Mr Litt you have indicated that in your view the FISA court is not a rubber stamp Correct That was your testimony Mr LITT That is correct Mr JEFFRIES And I think in response to the distinguished gentleman from Idaho you said well it is not a rubber stamp because they read They ask questions They pushback There is careful study and analysis Is that an accurate characterization of your testimony Mr LITT Reasonably accurate Yes sir Mr JEFFRIES Okay Now we just had the baseball all-star game yesterday and of course we know nothing is as American as baseball and apple pie And if you think back on the history of baseball I just took a quick look I am a baseball fan myself Now Stan ‘‘the man’’ Musial great hitter from St Louis his batting average lifetime he was close to being in the top 25 331 Stan ‘‘the man’’ Musial Babe Ruth 10th all time His lifetime batting average was 342 Ted Williams the great lefty from the Boston Red Sox his lifetime batting average was 344 Ty Cobb the Georgia peach—I may disagree with some of his views on social justice issues but he was a great hitter The number-one hitter all time—— Mr LITT 363 Mr JEFFRIES continuing Based on average 366 Laughter Mr JEFFRIES Pretty impressive though but I am still going to continue to ask you questions about this dynamic Now I took a look So these are the greatest hitters of all time I took a look at what your batting average is as it relates to the FISA court and I am a little troubled at what we were able to determine So am I correct that in terms of the total applications submitted since 1979 there were 33 949 applications submitted Is that accurate Mr LITT I don’t know the number I wouldn’t disagree with your number I just don’t know it off the top of my head Mr JEFFRIES Okay And of that total number of applications 490 it appears were modified Is that correct You have no reason to disagree with that number Is that right Mr LITT Again I don’t know the answer Mr JEFFRIES Okay So—— Mr LITT But if I can just add one—— Mr JEFFRIES Well let me just make an observation Mr LITT Okay Mr JEFFRIES And I have got limited time here One-point-four percent of the total number of applications made were modified But what is even more troubling since 1979 11 applications were denied Is that correct 11 Mr LITT Again I will take your word for that Mr JEFFRIES Okay So your success rate your batting average was 99 percent of the time that you have applied to acquire infor- 61 mation that could possibly include communication from one American to another American yet you have taken the position that the FISA court is an independent check to protect the civil liberties and constitutional rights of Americans Is that correct Mr LITT So I guess the answer is that we are not exactly talking about baseball here We have a—if you imagine a situation where the kind of interaction we have with the FISA court is the FISA court throws a pitch and we don’t hit it And the court says we want the pitch a little bit higher Can you throw the pitch a little bit higher And it is still not right So make it a little more inside That is the interaction we have with the FISA court They come back to us and tell us what we need to do to submit an application that will get approved Mr JEFFRIES Right Those modifications and I know my time has run out only took place 1 4 percent of the times and that is why I think we are all concerned or many of us are concerned that there is not an appropriate check on behalf of the Americans whose records could be subjected to an invasive search I thank you all for your service yield back the balance of my time Mr LITT May I say one thing briefly Mr Chairman Mr GOWDY Sure Mr LITT The number for modification there I think does not reflect the full number of times in which the court asks questions and comes back to us My understanding is that that is simply— that comes at the very end of the process but there is a substantial give and take before we get to that point So that is not a full reflection Mr GOWDY The Chair thanks the gentleman from New York and now recognizes the gentleman from Utah Mr Chaffetz Mr CHAFFETZ I thank the Chairman And I thank the four of you for your service I know how much you care for your country and we do as well and appreciate the dialogue It is what differentiates the United States of America from most others So Mr Cole is geolocation information metadata or is it content Mr COLE That is an area of the law that is I think evolving in light of the Jones case and it is one that I think the courts are now grappling with It is not clearly as—— Mr CHAFFETZ The courts—the courts did rule in the Jones case 9-0 They were pretty clear Justice Alito was also fairly clear that Congress needed to grapple with this as well Has the Department of Justice issued any guidance on Jones Mr COLE We are in the process of looking through that Jones was based mostly on a trespass—— Mr CHAFFETZ I know what it was Mr COLE continuing Opposed to a search and seizure Mr CHAFFETZ Have you issued any guidance on Jones Mr COLE We are in the process of looking through that to do it Mr CHAFFETZ That is not an accurate answer My understanding is there are at least two documents that the Department 62 of Justice has issued to the Federal Bureau of Investigations for instance It was uncovered through a FOIA request Almost every page of this was redacted So you have indeed actually issued guidance on Jones Correct Mr COLE I will stand to be corrected If you have those yes Mr CHAFFETZ Will the Department of Justice provide to this body to this Committee the guidance on Jones Mr COLE That is something we will have to look into There are lots of law enforcement—— Mr CHAFFETZ No no no Wait a second I know there are law enforcement issues I know there are other things Why would you not provide to the United States Congress the Committee on the Judiciary why would you not provide a copy of that guidance for this Committee Mr COLE If it discloses law enforcement sensitive information and techniques of how we go about fighting crime and finding criminals then we may not feel free to disclose it Mr CHAFFETZ And to the Chairman of this Committee I think this is one of the great concerns So let me ask you again is geolocation metadata or is it content Mr COLE It is not content as that would be called It doesn’t give you the content of anybody’s calls All it gives you is information about where they are Mr CHAFFETZ So you are saying in other words that geolocation you would classify as metadata Mr COLE I am not sure that it is one or the other I think there are times where there are things that are in between and this may be one of those It is certainly not content It probably tends more toward metadata But again this is an evolving area of the law Mr CHAFFETZ How is it evolving I mean we haven’t—this is what scares me about what you are doing and how you are doing it If you knew exactly where I was standing you are telling me that that is not content Mr COLE That is not the content of your conversation no And other people may see you—— Mr CHAFFETZ So the content—— Mr COLE If you are standing out in public any number of other people may see you there Mr CHAFFETZ So but if I was standing on private property Mr COLE This is part of what Jones talks about is the trespass issue Mr CHAFFETZ And they ruled 9-0 that it was an overstep and an overreach So are you collecting that data Mr COLE We are not collecting that data Mr CHAFFETZ Let me ask the NSA Is the NSA collecting this data Mr INGLIS We are not collecting that data under this program We believe that the authority could be granted by the courts to collect that attribute We have not done that and as Mr Cole and Litt indicated earlier the Director of NSA has given an affirmation to the Congress that before such time as we would reconsider that decision we would come back to the Congress Mr CHAFFETZ How—going back to you Mr Cole What other bits of information fall in this gap between metadata and content 63 What is this third category that you are talking about What is the right word for it Mr COLE I am not sure It is just a third category Mr Chaffetz I think there is metadata that was described by the court in Smith v Maryland which is the telephone records that we have been talking about today that were covered by the 215 program that we have been discussing today There is content which is the actual—the conversations themselves that people have and there are any number of things that may fall in between those and it is not just a third category It is probably a continuum Mr CHAFFETZ What else would be in that continuum Mr COLE I am sorry sir Mr CHAFFETZ What else would be in that continuum Mr COLE It is hard for me to just hypothesize about all the many different things that could be out there and where they would fall in that continuum Mr CHAFFETZ There is a report out today about license plates and that information that is being collected by thousands of camera readers and stored about specific location Does that fall within this category Mr COLE In which category Mr CHAFFETZ License plate readers Mr COLE The whole issue comes down to the reasonable expectation of privacy and this is what the court bases its rulings on Mr CHAFFETZ Do you believe that I have a reasonable expectation of privacy about my specific whereabouts Mr COLE It depends on where you are and how many other people see you as—— Mr CHAFFETZ Do I have a reasonable expectation of privacy on private property Mr COLE In general I think the courts are saying that there is a trespass theory that gives you a reasonable expectation of privacy depending on whose property it is whether it is your own or somebody else’s how many other people are there These are all the types of issues that would go into that Mr CHAFFETZ My time is expired But Mr Chairman this is something we have to much more thoroughly understand There is guidance out there and I think this Committee should be able to see it Yield back Mr GOODLATTE presiding We are working our way in that direction and there will be another hearing You will be able to ask even more questions in a classified manner about questions you couldn’t get answered here So we thank the gentleman and the Chair now recognizes the gentleman from South Carolina Mr Gowdy and thanks him for presiding for a period of time as well Mr GOWDY Thank you Mr Chairman I was listening to my colleagues and our witnesses discuss these issues and for whatever reason Mr Chairman my mind went to a guy by the name of Joseph Hartzler I don’t know whether he is still with the department or the U S attorney’s office or not He 64 was the lead prosecutor in a case called United States v Timothy McVeigh And I thought to a presentation that Mr Hartzler gave many years ago and the role that business records played in his ability to successfully prosecute that horrific act of domestic terrorism And Mr Chairman I thought to myself all right we asked you Mr Hartzler to prosecute the crime after it took place What if we challenged you with the responsibility to prevent the next act of terrorism What tools would you need to be able to prevent crime as opposed to prosecute it in its aftermath And while this is at some level a debate between privacy and public safety to me it is also a debate between the difference between prosecuting something after it happens and then preventing it from happening in the first place Mr Hartzler used hotel records He used business records where McVeigh went and purchased certain materials He used—that was a very tedious difficult case to prosecute and the role of the business records played in it So this is what I would like to ask I don’t want to ask specific questions about the sections I want to go to where the people of my district are who are not trained attorneys for the most part trained law enforcement officials Mr Litt you would agree that the Constitution kind of sets the minimum standard by which Government must conduct itself—— Mr LITT Yes sir Mr GOWDY continuing Is the minimum standard Mr LITT Yes sir And Congress has the power to set higher standards Mr GOWDY Exactly So in Roper v Simmons if the Supreme Court says you cannot put someone to death who was under the age of 18 at the time that they committed the offense that does not keep Congress from saying we are going to raise it to 21 Mr LITT That is correct Mr GOWDY Right So who does get to decide whether or not our fellow citizens have a reasonable expectation of privacy Mr LITT It depends upon the purpose for which you are deciding it For purpose of interpreting the provisions of the Fourth Amendment as the Fourth Amendment the Supreme Court is the ultimate arbiter For purposes of determining what is the appropriate behavior how do you want to regulate the actions of Government that is Congress’ role—— Mr GOWDY Well I want to stop you You say the Supreme Court is the ultimate arbiter Are they the exclusive arbiter Can the people weigh in on what they think they have a reasonable expectation of privacy in Mr LITT Absolutely But—— Mr GOWDY Well the Supreme Court doesn’t have the benefit of public input Mr LITT Generally speaking the public manages to get its voice heard in case in—— Mr GOWDY Well I would hope they would listen to it I mean their job is not to weigh and balance—to Jason’s point if you are on private property but there is a helicopter above versus if you are 65 on private property and there are four other people at the picnic with you I mean you have no expectation of privacy in your face I don’t think anyone would argue you have an expectation of privacy in your face But that does not mean that our fellow citizens want Government to collect facial imagery data Mr LITT You know I think that is exactly the right way to frame it which is to say that the Fourth Amendment as interpreted by the court sets the minimum constitutional standard but that the Congress based on input from the people and whatever sources can determine no this is how we want to regulate the behavior of our Government And that set of regulations that we need to adhere to Mr GOWDY And technology can impact that Agree technology can impact that Mr LITT I am sorry Mr GOWDY Technology Technology can impact someone’s reasonable expectation of privacy Mr LITT Oh absolutely Mr GOWDY Culture Mr LITT Yes All of those factors come into play Mr GOWDY I mean there are already currently business records that an AUSA cannot access with a subpoena Unless the world has changed you can’t get medical records with a subpoena Mr LITT Right There are statutory restrictions on what you can get Mr GOWDY You can’t get IRS tax returns with a subpoena Mr LITT That is right You have got to go through a more elaborate process Mr GOWDY Both of those are business records right Mr LITT That is correct Mr GOWDY So the notion that Miller stands for the proposition that all business records you have no expectation of privacy because there was a third party involved we just came up with two examples where that is not the case Mr LITT Well again that was a case interpreting what the Fourth Amendment meant The other examples you have given are cases where as you said Congress has gone beyond the minimum requirement—— Mr GOWDY But there was also a statute in play in Miller There was a banking statute in play in Miller You have read it more recently than I have But—— Mr LITT No I—— Mr GOWDY My point—my time is up My point is this All of us are asked back home by people who are not as well trained in the law as you all are and there is this growing skepticism about the conduct of Government And to the extent that the people can weigh in on what they have an expectation of privacy in you can expect to see that scale balance back toward privacy and away from public safety unless we do a better job of regaining their trust and explaining why these programs are necessary Mr LITT So I couldn’t agree with you more I think that is absolutely right I think as Deputy Director Inglis said before in the intelligence community we try very hard to keep in mind both the 66 protection of national security and the privacy and constitutional rights of Americans We think we have struck that balance in the right place but if the people and the Congress determine that we struck that balance in the wrong place that is a discussion that we need to have Mr GOWDY Thank you Mr Chairman Mr GOODLATTE The Chair thanks the gentleman And on that note we thank this panel for giving a lot of answers I think there are some that could not be answered here today and therefore you might anticipate that we will have a subsequent hearing in a classified setting and ask additional questions Whether it is of you four or something else I don’t know but I want to thank each one of you for helping us to engage in a very thorough examination of the issues related to these two sections of the law and excuse you now Thank you again Pause Mr GOODLATTE Folks if we could ask everyone to clear the hearing room we are going to start with our second panel No just clear the area around the witness table And we would now invite our second panel to take their seats And once you have taken your seats we will invite you to stand back up again and be sworn So we will welcome our second panel and ask that each of you rise and be sworn in Witnesses sworn Mr GOODLATTE Thank you very much Let the record reflect that all the witnesses responded in the affirmative and we will now introduce our witnesses Our first witness is Mr Stewart Baker a partner at Steptoe Johnson law firm here in Washington D C And we would ask that the door in the back be closed so we can have a little more—— Mr Stewart Baker is a partner at Steptoe Johnson here in Washington D C Mr Baker also serves as a distinguished visiting fellow at the Center for Strategic and International Studies Previously he served as the First Assistant Secretary for Policy at the U S Department of Homeland Security He also served as general counsel of the NSA where he led NSA and interagency efforts to reform commercial encryption and computer security law and policy Mr Baker has been a visiting fellow at the Hoover Institution and a fellow of the University Center for National Security Law Mr Baker received his bachelor’s degree from Brown University and his J D from the UCLA School of Law where he was chief articles editor of the UCLA Law Review And we are very fortunate to have him and his expertise with us today Our second witness is Mr Jameel Jaffer Deputy Legal Director of the American Civil Liberties Union and also serves as Director of the group’s Center for Democracy Mr Jaffer previously directed the ACLU’s National Security Project Prior to joining the ACLU Mr Jaffer clerked for Amalya Kearse the U S Circuit Court of Appeals for the Second Circuit and the Right Honorable Beverley McLachlin Chief Justice of Canada 67 Mr Jaffer earned degrees from Williams College Cambridge University and Harvard Law School and we welcome his expertise and experience as well Our third witness today is Mr Steven G Bradbury an attorney at Dechert LLP here in Washington D C Formerly Mr Bradbury headed the Office of Legal Counsel in the U S Department of Justice during the Administration of George W Bush handling legal issues relating to the FISA court and the authorities of the National Security Agency He served as a law clerk for Justice Clarence Thomas on the Supreme Court of the United States and for Judge James L Buckley of the United States Court of Appeals for the D C Circuit Mr Bradbury is an alumnus of Stanford University and graduated magna cum laude from Michigan Law School We thank him for serving as a witness today and look forward to his insight into this complex topic Our final witness on the first panel is Ms Kate Martin Director of the Center for National Security Studies since 1992 She was formerly a lecturer at Georgetown University Law School and has also worked in the position of general counsel to the National Security Archive She is currently a member of Constitution Project’s bipartisan Liberty and Security Committee Previously Ms Martin was a partner with the Washington D C law firm of Nussbaum Owen Webster She graduated from the University of Virginia Law School where she was a member of the Law Review and from Pomona College with B A in philosophy We welcome her dedication and expertise in this area Thank you all for joining us and we will begin with Mr Baker Each witness should summarize his or her testimony in 5 minutes or less Your entire statement will be made a part of the record And to help you stay within that time there is a timing light on your table When the light switches from green to yellow you will have 1 minute to conclude your testimony When the light turns red it signals that the witness’s 5 minutes have expired Mr Baker welcome TESTIMONY OF STEWART A BAKER STEPTOE JOHNSON LLP Mr BAKER Thank you Mr Chairman Mr GOODLATTE You may want to pull the microphone close and turn it on Mr BAKER Thank you Mr Chairman and Ranking Member Conyers Yes thank you very much It is a pleasure to be here and I will say that this is not as unprecedented a climate as it may seem I thought I would take advantage of the fact that it is my birthday to talk a little about the history of FISA Here is a quote from the Cato Institute ‘‘If constitutional report cards were handed out to Presidents the President would receive an F an appalling grade for any President let alone a former professor of constitutional law ’’ About the same time that they were saying that the FISA court judge chief judge felt obliged to say ‘‘We are not a rubber stamp I carefully review every one of these applications ’’ 68 This was the second term of Bill Clinton when many of these criticisms were very prominent And quite frankly I think they contributed to the FISA court at the time adopting it turns out without legal justification a set of restrictions on the conduct of intelligence that built a wall between law enforcement and intelligence that contributed directly to the FBI not being able to find the hijackers when they knew they were in the country but were not allowed to look for them because they were on the wrong side of the wall I say that because this climate and the search for ever greater protections for civil liberties does have a cost and we don’t know where that cost will be paid That is why it seems to me that we need to be as careful as we can to ask the question what sorts of protections are there already And I will confess I was very surprised and a little troubled when I saw that initial metadata order Only when I came to realize that the order allowed the collection but not the actual searching of that data and that the searches were so carefully circumscribed that only 300 were made in a particular year did I realize that when you look at the two sets of orders together that there are actually extraordinary limitations on the ability of anyone at NSA to look at metadata of any individual I contrast that to the fact that there are hundreds of thousands of subpoenas issued every year for metadata by State and local law enforcement with far fewer guarantees of protection for that data And then finally and I will close with this the other cost that we are likely to pay here is that we are not the only audience for the debates that we are going through It may feel like a family fight but the neighbors are listening And indeed Europe has already made it clear that they intend to punish everybody who participated in these programs if they possibly can They intend to try to restrict our intelligence gathering by going after the companies that only did their duty in responding to orders that were lawful under U S law This is a fixed feature now of European public policy and diplomacy It ignores the fact that by and large the U S record on protecting civil liberties and even this kind of data is much better According to the Max Planck Institute you are 100 times more likely to be surveilled by your own government if you live in the Netherlands or you live in Italy You are 30 to 50 times more likely to be surveilled if you are a French or a German national than in the United States Only in the United States and Japan are there limitations on simply volunteering information to Government if you happen to have this metadata As long as you have a good reason by and large you can give it over and certainly law enforcement would appear to be a good reason And on this question of assembling a database of metadata the Europeans don’t do that because they passed a law telling every one of their carriers you assemble the database You maintain it And if law enforcement comes calling or if you want to volunteer the information you will have it We have never done that We have never had a data retention law in the United States for civil liberties reasons and that is one 69 of the reasons why we have ended up trying to collect this data and then imposing a set of limitations on when it is searched I will reserve and answer any questions you may have at the end of the discussion The prepared statement of Mr Baker follows 70 strictly the wall and demanded an investigation that to put walh rcgardcd agent at risk ot'a perjury prosecution A chorus of civil liberties critics and a determined FISA court was sending the a single clear message the wall must he observed at all costs And so a law task force ofthc FBI found not in August of 2001 that al Qacda had sent two dangerous operatives to the United State-s it did nothing it was told to stand down it cauld not go looking for the two at Qacda operatives because it was on the wrong side ofthc wall I believe that FBI task force would have found the hij who weren t hiding and that attacks could have been stopped if not fora combination oi bad judgment by the FISA court Whose minimization rules were later thrtiwn out on appeal and a climate in which national security concerns were discounted by civil libcrtics advocates on both sides ofthe aisle i realize that this story is not widely told perhaps because it s not an Welcome story not in the media and not on the Intcmett But it is true the parts ot'my hook that describe it are well-groundcd in recently declassi ed government rcpot ts 3 More importantly I lived it And want to live through that particular Groundhog Day again That s why I m here I am afraid that hyped and distorted press rcports orchestrated by Edward Snowdcn and his allies may cause us or other nations to construct new restraints on our intelligence gathering restraints that will leave us vulnerable to another security disaster Intelligence Gathering Under Law The problem we are discussing today has roots in a uniquely American and fairly recent experiment writing detailed legal rules to govern conduct of foreign This is new even for a country that puts great faith in law The Americans who fought World War II had a different View they thought that couldn t be conducted under any but the most general legal constraints This may have been a reaction to a failure of law in the run-up to World War ll when US codebrcakcrs were Forbidden to intercept Japan s coded radio communications hccausc scction 605 ot tlic Federal Communications Act made such intercepts illegal Finaliy in 193 9 Gen Georgi C Marshall toid Navy ot iiccrs to ignore the iaw 4 military that thitowcd maids tho ott iccrs lack tikc heroes not itfii t tl that illicit far marl - tint years but it hroko don-in in the traits cf Watcrgata Witt track a ciosc tan-oi at tin GGIH itt ti i ibund abuscsi and in 3973 STEWART It tartar saga mo owe Stairs ass i a Davao Karts int-I10 r Kansans or Safari caratcivic-rtaia its - cd 9962 Ed 71 adopted the first detailed legal regulation of intelligence gathering in history the Foreign Intelligence Act No other nation has ever tried to regulate intelligence so publicly and so precisely in lmv Forty years later though we re still nding problems with this experiment One of them is that law changes slowly while technology Chan 1 125 quickly That usually means Congiess has to change the 121w to keep up But 111 the context ot intelligcn nee it otten hard to explain why the low needs to be changed let alone to write meaningful limits on collection Wllh ul telling our intelligence target a lot about our collection techniques A freewheeling and prolonged debate and does Congress have any other kind will give them enough time and knowledge to move their communications away from technologies we 1'1 mastered and into technologies that thwart u5 The result on be intelligence under law it will be law without intelligence Much of what we ve rend in the newspapers lately about the NBA and PISA is the product of this tension Out intelligence capabilities and our intelligence gaps are mostly new since 1978 forcing the government including Congress to nd ways to update the law without revealing how we gather intelligence Section 215 and the Collection First Model That provides a useful frame for the most surprising disclosure made by Edward Snowden - that NSA collects metadata cg the called numben calling number duration of 121111 etc but not the call content for all calls into out of or within the United States Out of context A and Snowdcn worked hard to make sure it was token out ot contextw this is Ll troubling disclosure How can 111 of that data possibly be relevant to an authorized investigation as the law requires But context is everything here It turns out that collecting the data isn t the same us actually looking at it Robert Litt General Counsel of the Director for National Intelligence has made clear that there are court-ordered rules designed to make sure that government of cials only look at relevant records The meteorite that is acquired and kept under this program can only be queried when there is reasonable suspicirm based on speci c articulnble facts that a particular telephone number is associated with specified torciun terrorist organizations And the onlv purpose tor which can make that query is to identity contacts And in fact these rules have becn interpreted so strictly that last year the agency only actually looked at records for 300 Still the Wis-crating millions ofr 131 4 ms without 5 won mt or probable come even if tl 3 11515151155151 them lint-v can that he we might 11 511 5515512111 Sp 1 111 Proton - Wilson 3 r5 72 Very easily as it happens The Supreme Court has held that such records are not protected by the Fourth Amendment since they re already been given to a third And even if the Fourth Amendment applicd at bottom it requires only that seizures be reasonable The Court has recognized more than half dozen instances where scam-hes and seizures are reasonable even in the absence of probable cause and a They range from drug screening to border searches There can hardly be doubt that the need to protect national security ts within this doctrine as well particularly when waiting to conduct a traditional search won t work Call data doesn t lost If the govemment doesn t preserve the data now the government may not be able to search it laterS when the need arises In short there s less difference between this collection rst program and the usual law enforcement data search than rst the eye In the standard law enforcement search the government establishes the relevance ofits inquiry and is then allowed to collect and search the data In the new collection- rst model the government collects the data and then must establish the relevance of each inquiry before its allowed to conduct a search I know it s fashionable to say But what if I don t trust the government to follow the rules Isn t it dangerous to lot it collect all that data The answer is that the risk of rule' breaking is pretty much the same whether the collection comes rst or second Either way you have to count on the government to tell the truth to the court and you have to count on the court to apply the rules If you don t trust them to do that then neither model offers much protection against abuses But if in fact abuses were common we d know it by now Today law enforcement agen cics collect several hundred thousand telephone billing records a year using nothing 7 Smith v lfttijtt'tthd 442 US 735 743 44 1979 affirming the Court s previous holdings that the lrourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authoritiest 1f the information is revealed on the assumption that it will he used only for a limited purpose and the confidence placed in the third party will not be betrayed citing IE 1% Mitten 425 us 435 442 1976 See cg v Jr-raga 481' US W19 720 plurality opinion concluding than in limited circumstances a search unsupported by either warrant or probable cause can he constitutional when special hoards other than the annual need for iaw providc suf cient justi cation Gratin v i-tr'i'sconsim 483 US 51 68 373 hoiding Wisconsin Court s interpretation ofrcgulaiion motoring ream iinihia grounds for warrantlosa search oi probationers statistics the Fourth aoienass requirement E rr-nonin of Star z it a l ti I scrting that histt cont es iticaancinsrve as to when in tan the at or eizurc and lit at standard tower to which it npt accrmi dis- pro-onions of legnintaio i 7 on arc fruition to on Ethics 5 it 5 i3 i9 133 i994 iot sso r ing the tmcomcsted application oth- Eonitb Amendment legal standard that balanced on interests against the importance ofthc interests the court cosirhtded that the latter ouir' the it v also F 3d 137 i ilt nh Cir 2992 rooting that the Snpremc Court 2ias to warrant reotniainont for certain so-ac reeds offlaw inchidn a m that Court min- 2 in zinc oi'thc Fourth on i s- 205 Se at 73 but a subpoenaq That means you re roughly a thousand times more likely to have your telephone calling patterns reviewed by a law agency than by 355 A And the chance that law enIorcement will look at your records is itselflow around in the case oi one carrier U So it appears that law has been gaining aetzess to our call rnctadata for as long as billing records have existed nearly a century II this were the road to erwell s surely we d be there- by now and without any help from 300 searches Section 702 and This brings us to PRISM and the second of the Snowdcn stories to be released Without the surprise of the phone metadata order the slide show released by Snow-den would have been much less newsworthy Indeed the parts of the PRISM story that were true aren t actually new and the parts that were new aren t actually true Let s start with what s true Despite the noise around PRISM the slides tell us very little that the law itself doesn t tell us Section 702 says that the government may target non US persons reasonably believed to be located outside the United States to acquire foreign intelligence information It covers activities with a connection to the United States and is therefore subject to greater oversight than foreign intelligence gathered outside the United States Although the Attorney General and the Director of National Intelligence can authorize collection annually the collection and use of the data is covered by strict targeting and minimization procedures that are subject to judicial review and aimed at protecting US persuns as well as other persons located inside the United States That s what the law itself'says and the Snowdcn slides simply add voyeuristic details about the collection Everyone already knew that the government had the power to do this because unlike many countries we codify these things in law it should come as no surprise then that the government has been using its power to protect all of us There was one surprise in those stories though I'hat s the part that was new but not true When the story originally broke repoiters at the Guardian and the Post made it look as it the- NSA had direct on access to private service providers networks and that they were downloading materials at will To be fair the slides were In 2431 Rep Markcy sent letters to a iargt number of ceii phone compasni gs Asiatic our gig ct things if screw to ma yihhilii ii letter -oni 'I immit it Motions Exec 1 President Aide to Congressman Ed Nitrite Ci thirty 22 2W2 hug in use of sites maries tit-turns mm 32 2 74 confusing on this point talking about getting data directly from the servers ofprivntc companies But that phrase is at best ambiguous it could easily mean that NSA serves a lawful order on the companies and the companies search for and provide the data from their servers in fact everyone with knowledge from the Bill to the companies in question has confirmed that interpretation while denying that NSA has unfettered access to directly search the private servers In short it now looks as though the Washington Post and the Guardian hyped this aspect oi their story to spur a public debate about NSA surveillance Actually they didn t just want to spur debate they tried to control it by withholding information from the public If you re an American concerned about government collection it data slides that talk about large-scale collection direct from private databases are bound to raise concern especially alter release of the phone metadata order But many of those concerns can he answered by reading T the very detailed and strict minimization and targeting guidelines adopted by Justice and the DNI and approved by the FISA court for this program he whole point of those guidelines is to make sure that collection protects the privacy of Americans while still allowing foreign intelligence collection to go l onvartl In short in both section 215 and section 702 the government has found a reasonable way to square intelligencogathcring necessities with changing technology Now that they ve been exposed to the light of day these programs are not at all hard to justify But We cannot go on exposing every collection technique to the light of day just to satisfy everyone that the programs are appropriate The exposure itself will diminish their Even a fair debate in the open will cause great harm And this was never meant to be a fair debate Snowden and his allies in the press had copies of the minimization and targeting guidelines they surely knew that the guidelines made the programs look far more responsible So they suppressed them waiting a full two weeks while the controversy grew and took the shape they preferred before releasing the documents Since no self-respecting reporter withholds relevant infonnation from the public it s only fair to conclude that this was an act of advocacy not journalism Perhaps the reporters lost their bearings perhaps the timing was controlled by advocates Either way the public was manipulated not informed What Next Setting asirLle the hailltruths and the hypo what does the current surveillance lap tell as sliiout the question we re laced since this how to gather intelligence antler tau 3 i think the current lisp surprises two stsious dif culties in using law to regulate intelligence gathering i Regulating Technology What Works and What Doesn t so - 75 First since American intelligence has always been at its best in using new technologies intelligence law will always be falling out ot'datc and the more specific its requirements the sooner it will be outmoded Second we aren t good at regulating government uses of technology That s especially a risk in the context ot intelligence where the government often pushes the technological envelope The privacy advocates who tend to dominate the early debates about government and technology suffer from a sort ol'ideological technophobia at least as for as gorermnent is Even groups that claim to embrace the future want gin-eminent to cling to the past And the laws they help pass re ect that failing To take an old example in the 19703 well before the personal computer and the Internet privacy campaigners persuaded the country that the Bl s newspaper clipping les about US Citizens were a threat to privacy Sure the information was public they acknowledged but gathering it all in one tile was 'v ichd as sinister And maybe it was it certainly gave 1 Edgar Hoover access to embarrassing information that had been long forgotten everywhere- clse So in the wake of Watergate the attorneyr general banned the practice in the absence of some investigative predicate The ban wasn t reconsidered for twenty-five years And so in 2001 when search engines had made it possible for anyone to assemble a clips tile about anyone in seconds the one institution in the country that could not print out the results ofits Internet searches about Americans was the FBI This was bad for our security and it didn t protect anyonc s privacy either Now we re hearing calls to regulate how the government uses big data in security and law enforcement investigations This is about as likely to protect our privacy as reinstating the ban on clips les We can pass laws turning the federal government into an Amish village but big data is here to stay and it will be used by everyone else livery ycar data gets cheaper to collect and cheaper to analyze You can be sure that corporate America is taking advantage of this remorseless trend The same is ttue of the cyberspies in China s Peoples Liberation Army If we re going to protect privacy we won t succeed by standing in front oi big data shouting Stop Instead we need to find privacy tools even big data privacy tools that take advantage ol technoiogical advances The best way to do that in my View was sketched a decade ago by the Marklc Foundation Task Force on National Security which called on the to use new technologies to better monitor government employees who have access to sensitive intortnahon i E We need systems that audit for foe - lusk borer first report called tor tile ledcral government to adopt robust pannissioning structures and audit trails that still help enforce appropriate guidelines these critical elements could employ a wide variety of authentication certi cation veri cation and liolebascd permissions can be implemented and sentient through i re use airs while canyons an be used to protect common ions and data t that tract76 data misuse that og questionable searches and than require employees to explain why they are seeking unusual data access That s for more likely to provide effective protection against misuse ofprivnte data than trying to cheap data out of govemment hands The federal government has in fact made progress in this area that s one rcaoon that the minimization and targeting rules could he 'dS detailed as they are But it clearly needs to do better A proper for auditing access to restricted data would not just improve privacy cn ircement it likely would hot-1 flagged both Bradley Manning and Edward Snowden For their unusual network browning habits 2 The Rest of the World Has a Ringside Seat And It Wants a Vote Too There s a second reason why the American experiment in creating a detailed ot lcgal restraints on gathering is facing unexpected difficulties The purpose of those restraints is to protect Americans from the intelligence collection techniques we use on foreign governments and nationals At every turn the laws and regulations reassure Americans that they will not be targeted by their own intelligence scrviccs This makes plenty from a policy and civil liberties point ofvicw Intelligence gathering isn t pretty and it isn t putty coke On occasion the survival of the country may depend on good intelligence War-s are won and lives are lost when intelligence succeeds or fails Notions do whatever they can to collect information that might affect their future So dramatically After a long era ot national nai'vct when we thought that gentlemen didn t read other gentleman s mail and when intercepting even diplomatic radio signals was illegal the United States found itself thrust by World or and the Cold War into the intelligence business and now we play by the same rules as the rest of the world The purpose of much intelligence law and regulation is to make sure we do not apply those rules to our own citizens On the whole I m confident that we have gone about as far in pursuit goal as we can without seriously compromising our ability to conduct foreign intelligence And we ve spelled those assurances out in unprecedented detail All ofthat should - and largely has left the majority l Americzins satis ed that intelligence under law is working reasonably Well The problem i that Americans aren t the only people who read our laws or follow our debates So does the rest of the world And it doesnlt take much comfort from legal assurances that the privacy interests oi ximerimns are well protected from our intelligence agencies reach So while the debate over US intelligence gathering is already beginning to in this country the storm is still gathering abroad Afton other countries hove compinined about tho idco that NSA only he spying on their chino-m Politicians in France Brut xii Gciinitury the hietheriondz-z the hinted Ki adorn Bolgiorn and Rtiti imt ti ft uniting others have expressed shock and coiicd to into urged c sure ocztountn two wring and endinng i tree pert ingots to take initiator-es Within the parameters of our cultural and societal i r ury ingot humorist mt Anti i7 tort finirrdil highlil ih Di i Ectohe ingrown on ii 77 PRISM On luiy 4 the European Parliament passed a resolution calling for a range of possible actions such as delaying trade talks and suspending 1 111 enforcement and intelligence agreements with the United States over allegations that the United States gathered intelligence on European diplomats 2 Some oi this is iust hypocrisy Shortlv after President Hollande demand ed that the U immediateh stop its intercepts and the l renLh Interior Minister used his position 3 3 guest oi honor at a July 4 h celebration to elude the United States for its intercepts Le Mamie disclosed tat both tench officials Vt- ell knew that France has its program for largeecolc interception of international telecommunications traf c '4 But some ot reaction is grounded in ignorance Thanks to our open debates and detailed legislative limits on intelligence gathering Europeans know far more about US intelligence programs than about their own The same is true around the world As a result it s easy for European politicians to persuade their publics that the United States is uniquely intrusive in the way it conducts law enforcement and intelligence gathering from electronic communications providers In fact the reverse is true Practically every comparative study of law enforcement and security practice shows that the United States imposes more restriction on its agencies and protects its citizens privacy rights from government surveillance more carefully than Europe I ve included below two gures that illustrate this phenomenon One is from a study done by the Max Planck Institute estimating the number of surveillance orders per 100 000 people in several countries While the statistics in each are not exactly comparable the chart published in that study shows an unmistakable overall trend The number of US orders is circled because it s practically invisible next to most Europemi nations indeed an Italian or Dutch citizen is more than a hundred times more likely to be wiretapped by his government then an American 5 European Parliament resolution of-l July 2013 on the US Netionai Security Agency surveiilnnce programme surveillance bodies in various Member States and their impact on EU eitizene privacy 2013 6821 at mm etuooarl eureoe eu sides Ammii hereniafter Lin 11pm Parliament Restoration hie w 11 i 713nm duh-t 78% 334 11p broth ldifie- to 18 1% or 1 he so hit Iii-41 out 1 onetzcaznaierra l1 child wor'teiekueberw 1v ind lot it dilat- thitw 78 Which countries do the must surveillance per capita I'Num hlqni'l But-r1 I- ankle-LII 1 th ilf u-rucgni Ncu-tn'lqnd Ihm n ml Simiitu'ly the PRISM program is widely bL- iuved to Show uniqucly American enthusiasm for collucting data I'wrn 5urviue providers In fact it uwcs that reputation in part to dutailcd stattitnry provisions that are meant to protect privacy bill that also 5'ch nut htiw the program works European regimex by and large ol'fhr far less protection again arbitraryr cttilcctimt of personal data and their prtigmms to far less public scrutiny One recent study showed that out Ufa dozen advanced democrat-i351 tin1y1wti the United States and Japan impusc scriuus limits on what electrtinii data pnvate companies can gt vc to gut- cmnicnt within legal In most other countries and particularly in Eumpu 79 little or In ass is required before a provider hands over about 2 subscribers Which countries allow providers simply tn volunteer information to government investigators instead of requiring lawful process Can the government use legal Can the government skip the legal orders to force cloud providers orders and just get the cloud pmvidcr to disclose customer to disclose customer inl nrmatiun in mnation as in voluntarily Australia Yes Yes Canada Yes Yes Denmark Yes Yes France Yes Yes Germany Yes Yes Ireland Yes Yes Japan Yes No Spain Yes Yes UK Yes Yes Yes Nn f panama dais requires Em s- aaiunEs minimal-y ciisclesnre nfpermnai data whim-3a a val eczema sail or Fm Jeanna-Eastman data Maxwell 8 Wall 4 Global fen 5w Access Dam flex Semi Horsey Lemma July Ex 2 132 80 At mosh EurOpeon providers must have it good reason for sharing personal data but assisting law enforcement investigations is highly likely to satisfy thin requirement in the United States such sharing is prohibited in the absence process Despite the evidence however it is an article offuith in Europe that the United States lags Europe in respect for citizens rights when collecting data for security and law enforcement purposes Again this is the unfortunate result of our commitment to regulating our intelligence services in a more open fashion than other countries The U S government has learned to live with Europe s misplaced zeal for moral tutelage where data collection is concerned Our government can ride out this Storm as it has ridden out others But the antagonism spawned by Snowden s disclosures could have more serious consequences for our infonnation technology companies Many countries around the werld have launched investigations designed to punish American companies for complying with American law Some of the politicians and data protection agencies pressing for sanctions are simply ignorant of their own nation s aggressive use of surveillance others are jumping at any opportunity to harm US security interests But the fact remains that the price of obeying US law could be very high for our information technology sector Foreign of cials are seizing on the disclosures to fuel a new kind ot'inlonnation protectionism During a French parliament hearing France s Minister for the Digital Economy declared that if the report about PRISM turns out to be true it makes it relatively relevant to locate dutacenters and servers in French national territory in order to better ensure data security Germany s Interior Minister was even more explicit saying Whoever fears their communication is being intercepted in any way should one services that don t go through American servers 8 And Ncclie Kroc-s Vice President of the European Commission said If European cloud customers cannot trust the United States government or their assurancesi then maybe they won t trust US cloud providers either l hat is my guess And ii l am right then there are multi-billion euro consequences for American Hurting US inibnnution technology firms this way is a kind for European officials It boosts the local IT industry it assures more data for Europe s own surveiilunce systemsi and it hurtst US e5 0 fort 33 33 5' Valery i viorchirc eece in @473 intone A xermcm man nitrite in i on co iteutetiiusikritworj vjilf vykiNeelie limes v ice hurt-mean ommisaion htatemcnt after the meeting in European roud Hoard Tailinn interim duty 4 Shift trunncript evttilohic at htrpif compacting aidi p so reticent 3 $354 __en iitinl lib 81 The European Parliament has been particularly aggressive in condemning the program as a violation of European human rights 1 Its resolution pulls out all the stops threatening sanctions it the United States does not modify its intelligence programs to provide privacy protections for European nationals The resolution raises the prospect of suspending two anti-terror agreements with the United States on passenger and nancial data it demands US security cl aranccs for European of cials so they can review all the documents about and it threatens trade talks as well as the Safe Harbor that allows companies to move data freely across the Atlantic This may be the most egregious double standard to come out of Europe yet Unlike our section 215 program the EU doesn t have a bi metadata database But that s because Eumpc doesn t need one Instead the European Parliament passed a measure forcing all of its information technology providers to create their own metadata databases so that law enforcement and security agencies could conveniently search up to two years worth of logs 'l hese databases are full of data about American citizens and under EU law any database held anywhere in Europe is open to search and quite likely to voluntary disclosure at the request of any government agency anywhere between Bulgaria and Portugal I have seen this movie before too During my tenure at Homeland Security European of cials tried to keep the United States from easily accessing travel reservation data to screen for terrorists hoping to blow up planes bound for the United States In order to bring the United States to the table European of cials threatened to impose sanctions not on the government but on air carriers who cooperated with the data program 2 Similarly to limit US access to terror nance information European data protection authorities threatened the interbank transfer company SWIFT with criminal prosecution and nes for giving the US access to transfer data 23 In the end the threat of sanctions forced SWIFT to keep a large volume ofits data in Europe and to deny US authorities access to it New whenever Europe has a beef with US use ol'data in counterterrorisni programs it threatens not the US government but 8 companies The European Parliament is simply returning to that same playbook There is every reason to believe that European gt ivenitnents and probably some imitators in Latin America and elsewhere will hold us information technology companies hostage in order to show their unhappiness at the disclosures 3 What Congress Should Do About It as a res tit 313 is going to be bad year in companies that complied was US Eats the need to recognise that our government pot them in this position Not just the Enreperzii Performers tra seoz'nrrorr sugar note l3 Bases sepia note 3 at $144 31 1'55 at 14 15 i 82 executive branch that served those orders but congress too which has debated and written intelligence laws as though the rest of the world wasn t listening The US government all ot it has left LKS companies seriously at risk for 1% ng nothing more than their duty under US law And the US t_1r wernrnentx all of it has a responsibility to protect US companies from the resulting foreign government attacks The executive branch has a responsibility to interpose itself between the companies and foreign governments The flap over Snowdcn s disclosures is a dispute between governments and it must be kept in those channels Diplomatic intelligence anti law enforcement partners in every other country should hear the same message If you want to talk about US intelligence programs you can talk to us but not to US companies a and individuals they are prohibited by law from discussing those programs Congress too needs to speak up on this question European politicians feel free to demand security clearances and a vote on US data programs in part because they think Congress and the American public share their views It s time to make clear to other countries that we do not welcome foreign regulation of US security arrangements There are many ways to convey that message Congress could should adopt its own resolution rejecting the European Parliament s Congress could prohibit S agencies from providing intelligence and law enforcement assistance or information to nations that have harassed or threatened U S companies for assisting their government unless the agency head decides that providing a particular piece oi'inlormation will also protect US security It could require similar review procedures to make sure that Mutual Legal Assistance Treaties do not provide assistance to nations that try to punish LTS companies for obeying US law And it could match the European Parliament s willingness to reopen the travel data and terror nance pacts with its owa prescribing in law that if the agreements are reopened they must be amended to include an anti hypocrisy clause no privacy obligations may he imposed on US agencies that have not already been imposed on European agencies as well as an anti hostage-taking clause concerns about government conduct will he raised bets 'een governments and not by threatening private actors with inconsistent legged obiigaiir rnsi li And inst to shot-r that this partienirtr road runs in both directions perhaps steepness could mantle investigation into iltUW much data about indirida st Americans is being retained as European minpartien hots often it is accessed by European gos eminents and Whether access meets our constitutionni and legal standards is- 83 Conclusion Thirty-lite years ottrying to write detailed laws for intelligence gathering have revealed just how hard that exercise is and why so tow nations have tried to do it Two lessons are particularly salient as a result oft he latest ap over Edward Snowden s revelations First as technologies and security problems change it is not easy for the law to keep up i at least not without the kind of debate and legislative speci ticati on that puts sources and methods at risk The solution of the past decade has been to erect many safeguards for Civil liberties but behind a veil of classi cation The end result has been discouraging Not because civil liberties have been eroded in secret in my View all three branches of government have bent over backwards to protect the privacy of Americans while still conducting intelligence on the frontier of technology Rather it s clear that large parts of the body politic are reluctant to trust classi ed protections That has allowed irresponsible advocates to distort the debate over our intelligence programs Second we are not alone when we write these laws Every other country and practically every terror group - is listening and Sitting our debate for clues about what it means for them The very things that we are proudest of our ability to conduct intelligence while protecting the rights of Americans is no comfort to the rest of the world Instead it looks to many in the rest of the world like a provocation They feel entitled to demand for their Citizens the protections we have given to Americans In pursuit of that goal we can expect them also to attack the technology companies that are at the heart of our competitive and our intelligence advantage If nothing else we need to make sure that other governments do not punish those companies for the contribution they make to our security 84 Mr GOODLATTE Thank you Mr Baker Mr Jaffer welcome TESTIMONY OF JAMEEL JAFFER AMERICAN CIVIL LIBERTIES UNION ACLU Mr JAFFER Thank you Mr Chairman Mr Ranking Member Members of the Committee on behalf of the ACLU thanks for the invitation to testify today Over the last 6 weeks it has become clear that the NSA is engaged in far-reaching intrusive and unconstitutional surveillance of Americans’ communications Under Section 215 the NSA is tracking every single phone call made by a resident of the United States—who they called when they called them for how long they spoke Until recently it was tracking ordinary Americans’ Internet activity as well Under Section 702 and on the pretext of monitoring people outside the United States the NSA is using Section 702 of FISA to build massive databases of Americans’ domestic and international communications not just so-called metadata but content as well Those programs have been made possible by huge advances in the technology of surveillance but in many respects they resemble the generalized warrants the generalized surveillance programs that led to the adoption of the Fourth Amendment more than 200 years ago The FISA court orders resemble general warrants albeit general warrants for the digital age That the NSA is engaged in this kind of unconstitutional surveillance is the result of defects in the statute itself and in the current oversight system FISA affords the Government sweeping power to monitor the communications of innocent people Excessive secrecy has made congressional oversight difficult and public oversight impossible Intelligence officials have repeatedly misled the public Congress and the courts about the nature and the scope of the Government surveillance activities and structural features of the Foreign Intelligence Surveillance Court have prevented that court from serving as an effective guardian of constitutional rights To say that the NSA’s activities present a grave danger to American democracy is not an overstatement Thirty-six years ago after conducting a comprehensive investigation into the intelligence abuses of the previous decades the Church Committee warned that inadequate regulations on Government surveillance ‘‘threaten to undermine our democratic society and fundamentally alter its nature ’’ That warning should have even more resonance today than it did in 1976 because in recent decades the NSA’s resources have grown statutory and constitutional limitations have been steadily eroded and the technology of surveillance has become exponentially more power and more intrusive Because the problem that Congress confronts today has many roots there is no single solution to it But there are a number of things that Congress should do right away It should amend Section 215 and 702 to expressly prohibit suspicionless or dragnet monitoring or tracking of Americans’ communications It should require the executive to release basic infor- 85 mation about the Government’s use of foreign intelligence surveillance authorities including those relating to pen registers and national security letters The executive should be required to disclose for each year how many times each of those provisions was used how many individuals’ privacy was implicated by the Government’s use of each provision And with respect to any dragnet generalized or bulk surveillance program it should be required to disclose the types of information that were collected Are they collecting medical records Are they collecting educational records Are they collecting firearms records That should be disclosed to the American public Congress should also require the publication of FISA court opinions that evaluate the meaning scope or constitutionality of the foreign intelligence laws The ACLU recently filed a motion before the FISA court arguing that the publication of those opinions is required by the First Amendment but Congress need not wait for the FISA court to act Congress has the authority and the obligation to ensure that Americans are not governed by a system of secret law Finally Congress and this Committee in particular should hold additional hearings to consider further amendments to FISA including amendments to make FISA court proceedings more transparent Congress should not be indifferent to the Government’s accumulation of vast quantities of sensitive information about Americans’ lives This Committee in particular has a crucial role to play in ensuring that the Government’s efforts to protect the country don’t compromise the freedoms that make the country worth protecting Thank you The prepared statement of Mr Jaffer follows 86 ACL AMERICAN CIVIL LIBERTIES UNION Testimony of Jameel JalTer Deputy Legal Director of the American Civil Liberties Union Foundation Laura W Murphy Director Washington Legislative Office American Civil Liberties Union Before The House Committee on the Judiciary Oversight Hearing on The Administration s Use ofFlSA Authorities July IIZUIB On behalf of the American Civil Liberties Union ACLU its hundreds of thousands of members and its fty-three af liates nationwide thank you for inviting the ACLU to testify before the Committee Over the last six weeks it has become clear that the National Security Agetmy NBA is engaged in far-reaching intrusive and unlawful surveillance of Americans' telephone calls and electronic communications That the NSA is engaged in this surveillance is the result of many factors The Foreign Intelligence Surveillance Act FISA affords the government sweeping power to monitor the communications of innocent people Excessive secrecy has made congressional oversight dif cult and public Oversight impossible intelligence officials have repeatedly misled the public Congress and the courts about the nature and scope of the government s surveillance activities Structural features of the Foreign ntelligence Surveillance Court FISC have prevented that court from serving as an effective guardian of individual rights And the ordinary federal courts have improperly used procedural doctrines to place the activities beyond the reach ofthe Constitution 87 Jameel affer 2 To say that the activities present a grave danger to American democracy is no overstatement Thirty-seven years ago after conducting a comprehensive investigation into the intelligence abuses of the previous decades the Church Committee warned that inadequate regulations on government surveillance threaten ed to undermine our democratic society and fundamentally alter its nature This warning should have even more resonance today because in recent decades the resources have grown statutory and constitutional limitations have been steadily eroded and the technology of surveillance has become exponentially more powerful Because the problem Congress confronts today has many roots there is no single solution to it It is crucial however that Congress take certain steps immediately It should amend relevant provisions of PISA to prohibit suspicionless dragnet monitoring or tracking of Americans communications It should require the publication of past and future opinions insofar as they evaluate the meaning scope or constitutionality of the foreign intelligence laws It should ensure that the public has access to basic information including statistical information about the government s use of new surveillance authorities It should also hold additional hearings to consider further amendments to FISAiincluding amendments to make proceedings more transparent I Metadata surveillance under Section 215 of the Patriot Act On June 5 2013 we Guardian disclosed a previously secret FISC order that compels a Verizon subsidiary Verizon Business Network Services VBNS to supply the government with records relating to every phone call placed on its network between April 25 2013 and July 19 2013 1 The order directs VBNS to produce to the NSA on an ongoing daily basis all call detail records or telephony inetadata relating its customers calls including those wholly within the United States 2 As many have noted the order is breathtaking in its scope It is as if the government had seized every American s address book with annotations detailing which contacts she spoke to when she spoke With them for how long and possibly from which locations News reports since the disclosure of the VBNS order indicate that the mass acquisition of Americans call details extends beyond customers of VBNS encompassing subscribers of the country s three largest phone companies Verizon and Sprint 3 1 See Glenn Greenwald NSA Collecting Phone Records of Millions of l 'erl20i7 Cnslomer 5' Dailyg Guardian June 5 2013 2 Secondary Order In Re Application of the FBI for an Order Requiring the Production of Tangible Things vm Verizon Bus N'miork Servsx Inc on Behalf of MCI Vomnic 'n Servs Inc arm Verizon Bus Servs No BR 13-80 at 2 FISA Ct Apr 25 2013 available if http bitly l 1FY3 93 3 See Siobhan Gorman et US Collects Vast Data Trove Wall St June 7 2013 The arrangement with Verizon and Sprint the country s three largest phone companies means that every time the majority of 2 88 Jameel affer 3 Members of the congressional intelligence committees have con rmed that the order issued to VBNS is part of a broader program under which the government has been collecting the telephone records of essentially all Americans for at least seven years I a The metadata program is not authorized by statute The metadata program has been implemented under Section 215 of the Patriot Act sometimes referred to as business records provision but this provision does not permit the government to track all Americans phone calls let alone over a period of seven years As originally enacted in 1998 business records provision permitted the FBI to compel the production of certain business records in foreign intelligence or international terrorism investigations by making an application to the FISC See 50 USC 1861-62 2000 ed Only four types of records could be sought under the statute records from common carriers public accommodation facilities storage facilities and vehicle rental facilities 50 U S C 1862 2000 ed Moreover the FISC could issue an order only if the application contained speci c and articulable facts giving reason to believe that the person to whom the records pertain ed was a foreign power or an agent of a foreign power at The business records power was considerably expanded by the Patriot Act 5 Section 215 of that Act now codi ed in 50 USC 1861 permitted the FBI to make an application to the FISC for an order requiring Americans makes a call NSA gets a record of the location the number called the time of the call and the length of the conversation according to people familiar with the matter has 107 3 million wireless customers and 31 2 million landline customers Verizon has 98 9 million wireless customers and 22 2 million landline customers while Sprint has 55 million customers in total Siobhan Gorman Jennifer Valentino DeVries Government ls Tracking Verizon Customers Records Wall St 1 June 6 2013 http onwsj com l3mLm7c In the days following The Guardian s disclosure of the Verizon order of cials revealed other details about the government s surveillance under Section 215 See James R Clapper DNI Statement on Recent Unauthorized Disclosures of Classi ed Information Of ce of the Director of National Intelligence June 6 2013 http l 1 usa gov 13jquc The DNI stated for example that the only allows the data to be queried when there is a reasonable suspicion based on speci c facts that the particular basis for the query is associated with a foreign terrorist organization 4 Dan Roberts Spencer Ackerman Senator Feinstein N514 Phone fall Data Collection in Place Since 2006 Guardian June 6 2013 id Senator Saxby Chambliss This has been going on for seven years 3 For ease of reference this testimony uses business records provision to refer to the current version of the law as well as to earlier versions even though the current 5 3 89 Jameel affer 4 the production of any tangible things including books records papers documents and other items for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities 50 U S C 1861 a 1 emphasis added No longer limited to four discrete categories of business records the new law authorized the FBI to seek the production of any tangible things Id It also authorized the FBI to obtain orders without demonstrating reason to believe that the target was a foreign power or agent of a foreign power Instead it permitted the government to obtain orders where tangible things were sought for an authorized investigation PL 107 56 215 This language was further amended by the USA PATRIOT Improvement and Reauthorization Act of 2005 PL 109 177 106 b Under the current version of the business records provision the FBI must provide a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to a foreign intelligence international terrorism or espionage investigation 50 U S C 1861 b 2 A emphasis added While the Patriot Act considerably expanded the government s surveillance authority Section 215 does not authorize the metadata program First whatever relevance might allow it does not permit the government to cast a seven-year dragnet over the records of every phone call made or received by any American Indeed to say that Section 215 authorizes this surveillance is to deprive the word relevance of any meaning The government s theory appears to be that some of the information swept up in the dragnet might become relevant to an authorized investigation at some point in the future The statute however does not permit the government to collect information on this basis Cf Jim Sensenbrenner This Abuse of the Patriot Act Must End Guardian June 9 2013 http bitly lSiDASix on the scope of the released order both the administration and the FISA court are relying on an unbounded interpretation of the act that Congress never intended The statute requires the government to show a connection between the records it seeks and some specific existing investigation Indeed the changes that Congress made to the statute in 2006 were meant to ensure that the government did not exploit ambiguity in the statute s language to justify version of the law allows the B1 to compel the production of much more than business records as discussed below 6 Records are presumptively relevant if they pertain to 1 a foreign power or an agent of a foreign power 2 the activities of a suspected agent of a foreign power who is the subject of such authorized investigation or 3 an individual in contact with or known to a suspected agent of a foreign power who is the subject of such authorized investigation This relaxed standard is a signi cant departure from the original threshold which as noted above required an individualized inquiry 4 90 ameel affer 5 the collection of sensitive information not actually connected to some authorized investigation As Senator Jon put it in 2006 We all know the term relevance It is a term that every court uses The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation grand jury subpoenas in a criminal investigation 7 As Congress recognized in 2006 relevance is a familiar standard in our legal system It has never been afforded the limitless scope that the executive branch is affording it now Indeed in the past courts have carefully policed the outer perimeter of relevance to ensure that demands for information are not unbounded shing expeditions See In re Horowitz 482 F 2d 72 79 2d Cir 1973 What is more troubling is the matter of relevance The grand jury subpoena requires production of all documents contained in the les without any attempt to define classes of potentially relevant documents or any limitations as to subject matter or time The information collected by the government under the metadata program goes far beyond anything a court has ever allowed under the rubric of relevance 9 b The metadata program is unconstitutional President Obama and intelligence officials have been at pains to emphasize that the government is collecting metadata not content The suggestion that metadata is somehow beyond the reach of the Constitution however is not correct For Fourth Amendment purposes the crucial question is not whether the government is collecting content or metadata but whether it is invading reasonable expectations of privacy In the case of bulk collection of Americans phone records it clearly is The Supreme Court s recent decision in haired Stories v Jones 132 S Ct 945 2012 is instructive In that case a unanimous Court held that long term surveillance of an individual s location constituted a search under the Fourth Amendment The Justices reached this conclusion for different reasons but at least five Justices were of the view that the surveillance infringed on a reasonable expectation of privacy Justice Sotomayor observed that tracking an individual s movements over an extended period allows the government to generate a precise comprehensive record that reflects a wealth of detail about her familial political professional religious and sexual associations 1d Sotomayor concurring 7 Jennifer Valentino-Devries Siobhan Gorman Secret Court s Rede nrrz'on of Relevam Empowered 1 2281 NSA Data-Gathering Wall St July 8 2013 http onwsj com l3x8QKU 8 See also Hale v Henkel 201 US 43 76-77 1906 9 The metadata program also violates Section 215 because the statute does not authorize the prospective acquisition of business records The text of the statute contemplates release of tangible things that can be fairly identified and allow s a reasonable time for providers to assemble those things 50 U S C These terms suggest that Section 215 reaches only business records already in existence 5 91 lameel affer 6 The same can be said of the tracking now taking place under Section 215 Call records can reveal personal relationships medical issues and political and religious affiliations lntemet metadata may be even more revealing allowing the government to learn which websites a person visits precisely which articles she reads whom she corresponds with and whom those people correspond with The long-term surveillance of metadata constitutes a search for the same reasons that the long term surveillance of location was found to constitute a search in Jones In fact the surveillance held unconstitutional in Jones was narrower and shallower than the surveillance now taking place under Section 215 The location tracking in Jones was meant to further a specific criminal investigation into a specific crime and the government collected information about one person s location over a period of less than a month What the government has implemented under Section 215 is an indiscriminate program that has already swept up the communications of millions of people over a period of seven years Some have defended the metadata program by reference to the Supreme Court s decision in Smith v Maryland 442 US 735 1979 which upheld the installation of a pen register in a criminal investigation The pen register in Smith however was very primitive it tracked the numbers being dialed but it didn t indicate which calls were completed let alone the duration of the calls Moreover the surveillance was directed at a single criminal suspect over a period ofless than two days The police were not casting a net over the whole country Another argument that has been offered in defense of the metadata program is that though the NSA collects an immense amount of information it examines only a tiny fraction of it But the Fourth Amendment is triggered by the collection of information not simply by the querying of it The NSA cannot insulate this program from Fourth Amendment scrutiny simply by promising that Americans private information will be safe in its hands The Fourth Amendment exists to prevent the government from acquiring Ameri cans private papers and communications in the first place Because the metadata program vacuums up sensitive information about associational and expressive activity it is also unconstitutional under the First Amendment The Supreme Court has recognized that the government s surveillance and investigatory activities have an acute potential to sti e association and expression protected by the First Amendment See e g United States v US District Court 407 US 297 1972 As a result of this danger courts have subjected investigatory practices to exacting scrutiny where they substantially burden First Amendment rights See eg Clark v Library of Congress 750 F 2d 89 94 DC Cir 1984 FBI eld investigation In re Grand July Proceedings 776 F 2d 1099 1102-03 2d Cir 1985 grand jury subpoena The metadata program cannot survive this scrutiny This is particularly so because all available evidence suggests that the program is far broader than necessary to achieve the government s legitimate goals See Press Release Wyden Udall Question the Value and E icacy of Phone Records Collection in Stoppn-ig Attacks June 92 Jameel affer 7 7 2013 As far as we can see all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy oflaw-abiding Americans in the way that the Patriot Act collection does c Congress should amend Section 215 to prohibit suspicionless dragnet collection of tangible things As explained above the metadata program is neither authorized by statute nor constitutional As the government and have apparently found to the contrary however the best way for Congress to protect Americans privacy is to narrow the statute s scope The ACLU urges Congress to amend Section 215 to provide that the government may compel the production of records under the provision only where there is a close connection between the records sought and a foreign power or agent of a foreign power Several bipartisan bills now in the House and Senate should be considered by this Committee and Congress at large The LIBERT-E Act HR 2399 113th Cong 2013 sponsored by Ranking Member Conyers Rep Justin Amash and forty others would tighten the relevance requirement mandating that the government supply speci c and articulable facts showing that there are reasonable grounds to believe that the tangible things sought are relevant and material and that the records sought pertain only to an individual that is the subject of such investigation A bill sponsored by Senators Udall and Wyden would similarly tighten the required connection between the government s demand for records and a foreign power or agent of a foreign power Congress could also consider simply restoring some of the language that was deleted by the Patriot Act in particular the language that required the government to show speci c and articulable facts giving reason to believe that the person to whom the records pertain ed was a foreign power or an agent of a foreign power 11 Electronic surveillance under Section 702 of ISA The metadata program is only one part of the domestic surveillance activities Recent disclosures show that the NSA is also engaged in large scale monitoring of Americans electronic communications under Section 702 of PISA which codifies the FISA Amendments Act of 2008 10 Under this program labeled in NSA documents the government collects emails audio and video chats photographs and other internet traffic from nine major service providersiMicrosoft Yahoo Google Facebook PalTalk AOL Skype YouTube and Apple 11 The Director of National Intelligence has acknowledged the existence of the PRISM program but stated that it 10 Barton Gellman Laura Poitras US British Intelligence Minn-1g Data From Nine US Internet Conmanies in Broad Secret Program Wash Post June 7 2013 While news reports have generally described PRISM as an NSA program the publicly available documents leave open the possibility that PRISM is instead the name of the NSA database in which content collected from these providers is stored 7 93 Jameel affer 8 involves surveillance of foreigners outside the United States 12 This is misleading The PRISM program involves the collection of Americans communications both international and domestic and for reasons explained below the program is unconstitutional a Section 702 is unconstitutional President Bush signed the FISA Amendments Act into law on July 10 2008 13 While leaving ISA in place for purely domestic communications the ISA Amendments Act revolutionized the FISA regime by permitting the mass acquisition Without individualized judicial oversight or supervision of Americans international communications Under the FISA Amendments Act the Attorney General and Director of National Intelligence can authorize jointly for a period of up to 1 year the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information 50 USC 1881a a The government is prohibited from intentionally target ing any person known at the time of the acquisition to be located in the United States id 1881a b 1 but an acquisition authorized under the FISA Amendments Act may nonetheless sweep up the international communications of US citizens and residents Before authorizing surveillance under Section 7027or in some circumstances within seven days of authorizing such surveillanceithe Attorney General and the DN1 must submit to the FISA Court an application for an order hereinafter a mass acquisition order 10 1881a a A mass acquisition order is a kind of blank check which once obtained permits without further judicial authorization whatever surveillance the government may choose to engage in within broadly drawn parameters for a period of up to one year To obtain a mass acquisition order the Attorney General and DNI must provide to the FISA Court a written certi cation and any supporting af davit attesting that the FISA Court has approved or that the government has submitted to the FISA Court for approval targeting procedures reasonably designed to ensure that the acquisition is limited to targeting persons reasonably believed to be located outside the United States 12 James R Clapper DNI Statement on Activities Authorized Under Section 702 of FISA Office of the Director of National Intelligence June 6 2013 see also James R Clapper DNI Statement on the Collection of Intelligence Pursuant to Section 702 of the Foreign Intelligence Surveillance Act June 8 2013 http lusagov IOYYAItp 13 A description of electronic surveillance prior to the passage of the FISA Amendments Act including the warrantless wiretapping program authorized by President Bush beginning in 2001 is available in Mr laffer s earlier testimony to the Committee See The FISA Amendments Act of 2008 Hearing Before the Subcomm on Crime Terrorism and Homeland Security H Comm on the Judiciary 112th Cong May 31 2012 written testimony of Jameel Jaffer Deputy Legal Director of the American Civil Liberties Union Foundation miailable at http bitly 14Q61Bs 8 94 Jameel affer 9 and to prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States 10 1881a g 2 A i The certi cation and supporting af davit must also attest that the FISA Court has approved or that the government has submitted to the FISA Court for approval minimization procedures that meet the requirements of 50 U S C 1801 h or 1821 4 Finally the certi cation and supporting af davit must attest that the Attorney General has adopted guidelines to ensure compliance with the limitations set out in 1881a b that the targeting procedures minimization procedures and guidelines are consistent with the Fourth Amendment and that a signi cant purpose of the acquisition is to obtain foreign intelligence information Id 188 Importantly Section 702 does not require the government to demonstrate to the FISA Court that its surveillance targets are foreign agents engaged in criminal activity or connected even remotely with terrorism Indeed the statute does not require the government to identify its surveillance targets at all Moreover the statute expressly provides that the government s certification is not required to identify the facilities telephone lines email addresses places premises or property at which its surveillance will be directed Id 1881a g 4 Nor does Section 702 place meaningful limits on the government s retention analysis and dissemination ofinforrnation that relates to US citizens and residents The Act requires the government to adopt minimization procedures id 1881a that are reasonably designed to minimize the acquisition and retention and prohibit the dissemination of nonpublicly available information concerning unconsenting United States persons id 1801 h 1 The Act does not however prescribe speci c minimization procedures Moreover the FISA Amendments Act speci cally allows the government to retain and disseminate information including information relating to US citizens and residents if the government concludes that it is foreign intelligence information Id 1881a e referring to id 1801 h l The phrase foreign intelligence information is de ned broadly to include among other things all information concerning terrorism national security and foreign affairs Id 1801 e As the FISA Court has itself acknowledged its role in authorizing and supervising surveillance under the FISA Amendments Act is narrowly circumscribed 14 The judiciary s traditional role under the Fourth Amendment is to serve as a gatekeeper for particular acts of surveillance but its role under the FISA Amendments Act is to issue advisory opinions blessing in advance broad parameters and targeting procedures under 14 In re Proceedings Required by 7 02 1 of the 1514 Amendments Act of 2008 No Misc 08-01 slip op at 3 PISA Ct Aug 27 2008 internal quotation marks omitted available at 9 95 Jameel Jaffer 10 which the government is then free to conduct surveillance for up to one year Under Section 702 the FISA Court does not consider individualized and particularized surveillance applications does not make individualized probable cause determinations and does not closely supervise the implementation of the government s targeting or minimization procedures In short the role that the FISA Court plays under the FISA Amendments Act bears no resemblance to the role that it has traditionally played under The ACLU has long expressed deep concerns_about the lawfulness of the Amendments Act and surveillance under Section 702 The statute s defects include 0 Section 702 allows the government to collect Americans international communications without requiring it to specify the people facilities places premises or property to be monitored Until Congress enacted the FISA Amendments Act FISA generally prohibited the government from conducting electronic surveillance without rst obtaining an individualized and particularized order from the FISA court In order to obtain a court order the government was required to show that there was probable cause to believe that its surveillance target was an agent of a foreign government or terrorist group It was also generally required to identify the facilities to be monitored The FISA Amendments Act allows the government to conduct electronic surveillance without indicating to the FISA Court whom it intends to target or which facilities it intends to monitor and without making any showing to the courtior even making an internal executive determinationi that the target is a foreign agent or engaged in terrorism The target could be a human rights activist a media organization a geographic region or even a country The government must assure the FISA Court that the targets are non-US persons overseas but in allowing the executive to target such persons overseas Section 702 allows it to monitor communications between those targets and US persons inside the United States Moreover because the FISA Amendments Act does not require the government to identify the specific targets and facilities to be surveilled it permits the acquisition of these communications en masse A single acquisition order may be used to justify the surveillance of communications implicating thousands or even millions of US citizens and residents ls The ACLU raised many of these defects in a constitutional challenge to the FISA Amendments Act filed just hours after the Act was signed into law in 2008 The case Amnesty v lapper was led on behalf of a broad coalition of attorneys and human rights labor legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with individuals located outside the United States In a 5-4 ruling handed down on February 26 2013 the Supreme Court held that the plaintiffs did not have standing to challenge the constitutionality of the Act because they could not show at the outset that their communications had been monitored by the government See Clapper v Amnesty 1m 1 USA 133 S Ct 1138 2013 The Court did not reach the merits of plaintiffs constitutional challenge 10 96 Jameel Jaffer 1 0 Section 702 allows the government to conduct intrusive surveillance without meaningful judicial oversight Under Section 702 the government is authorized to conduct intrusive surveillance without meaningful judicial oversight The FISA Court does not review individualized surveillance applications It does not consider whether the government s surveillance is directed at agents of foreign powers or terrorist groups It does not have the right to ask the government why it is initiating any particular surveillance program The FISA Court s role is limited to reviewing the government s targeting and minimization procedures And even with respect to the procedures the FISA court s role is to review the procedures at the outset of any new surveillance program it does not have the authority to supervise the implementation of those procedures over time 0 Section 702 places no meaningful limits on the government s retention and dissemination ofinformation relating to US citizens and residents As a result of the FISA Amendments Act thousands or even millions of US citizens and residents will find their international telephone and email communications swept up in surveillance that is targeted at people abroad Yet the law fails to place any meaningful limitations on the government s retention and dissemination of information that relates to US persons The law requires the government to adopt minimization proceduresiprocedures that are reasonably designed to minimize the acquisition and retention and prohibit the dissemination of nonpublicly available information concerning unconsenting United States persons However these minimization procedures must accommodate the government s need to obtain produce and disseminate foreign intelligence information In other words the government may retain or disseminate information about US citizens and residents so long as the information is foreign intelligence information Because foreign intelligence information is defined broadly as discussed below this is an exception that swallows the rule 0 Section 702 does not limit government surveillance to communications relating to terrorism The Act allows the government to conduct dragnet surveillance if a signi cant purpose of the surveillance is to gather foreign intelligence information There are multiple problems with this First under the new law the foreign intelligence requirement applies to entire surveillance programs not to individual intercepts The result is that if a signi cant purpose of any particular government dragnet is to gather foreign intelligence information the government can use that dragnet to collect all kinds of communicationsinot only those that relate to foreign intelligence Second the phrase foreign intelligence information has always been de ned extremely broadly to include not only information about terrorism but also information about intelligence activities the national defense and even the foreign affairs of the United States Journalists human rights researchers academics and attorneys routinely exchange information by telephone and email that relates to the foreign affairs of the US 11 97 Jameel Jaffer 12 b The targeting and minimization procedures do not mitigate the statute s constitutional de ciencies Since the FISA Amendments Act was enacted in 2008 the government s principal defense of the law has been that targeting and minimization procedures supply suf cient protection for Americans privacy Because the procedures were secret the government s assertion was impossible to evaluate Now that the procedures have been published however 16 it is plain that the assertion is false lndeed the procedures con rm what critics have long suspected that the NSA is engaged in unconstitutional surveillance of Americans communications including their telephone calls and emails The documents show that the NSA is conducting sweeping surveillance of Americans international communications that it is acquiring many purely domestic communications as well and that the rules that supposedly protect Americans privacy are weak and riddled with exceptions The procedures permit it to monitor Americans international communications in the course of surveillance targeted at foreigners abroad While the FISA Amendments Act authorizes the government to target foreigners abroad not Americans it permits the government to collect Americans communications with those foreign targets The recently disclosed procedures contemplate not only that the NSA will acquire Americans international communications but that it will retain them and possibly disseminate them to other US government agencies and foreign governments Americans communications that contain foreign intelligence information or evidence of a crime can be retained forever and even communications that don t can be retained for as long as five years Despite government of cials claims to the contrary the NSA is building a growing database of Americans international telephone calls and emails 0 The procedures allow the surveillance of Americans by failing to ensure that the its surveillance targets are in fact foreigners outside the United States The Amendments Act is predicated on the theory that foreigners abroad have no right to privacy or at any rate no right that the United States should respect Because they have no right to privacy the NSA sees no bar to the collection of their communications including their communications with Americans But even if one accepts this premise the procedures fail to ensure that its surveillance targets are infarct foreigners outside the United States This is because the procedures permit the NSA to presume that prospective surveillance targets are foreigners outside the United States absent speci c information to the contrary and to presume therefore that they are fair game for warrantless surveillance 6 See Glenn Greenwald James Ball The Top Secret Rules r hai Allow NSA In Use USDafa Without 1 Warrant Guardian June 20 2013 http bitly lOqu9B l2 98 Jameel Jaffer 13 The procedures permit the government to conduct surveillance that has no real connection to the government s foreign intelligence interests One of the fundamental problems with Section 702 is that it permits the government to conduct surveillance without probable cause or individualized suspicion It permits the government to monitor people who are not even thought to be doing anything wrong and to do so without particularized warrants or meaningful review by impartial judges Government of cials have placed heavy emphasis on the fact that the FISA Amendments Act allows the government to conduct surveillance only if one of its purposes is to gather foreign intelligence information As noted above however that term is defined very broadly to include not only information about terrorism but also information about intelligence activities the national defense and even the foreign affairs of the United States The procedures weaken the limitation further Among the things the NSA examines to determine whether a particular email address or phone number will be used to exchange foreign intelligence information is whether it has been used in the past to communicate with foreigners Another is whether it is listed in a foreigner s address book In other words the NSA appears to equate a propensity to communicate with foreigners with a propensity to communicate foreign intelligence information The effect is to bring virtually every international communication within the reach of the surveillance 0 The procedures permit the NSA to collect international communications including Americans international communications in bulk On its face Section 702 permits the NSA to conduct dragnet surveillance not just surveillance of speci c individuals Officials who advocated for the FISA Amendments Act made clear that this was one of its principal purposes and unsurprisingly the procedures give effect to that design While they require the government to identify a target outside the country once the target has been identified the procedures permit the NSA to sweep up the communications of any foreigner who may be communicating about the target The Procedures contemplate that the NSA will do this by employ ing an lntemet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas by target ing Internet links that terminate in a foreign country or by identifying the country code of the telephone number However the NSA does it the result is the same millions of communications may be swept up Americans international communications among them 0 The procedures allow the NSA to retain even purely domestic communications Given the permissive standards the NSA uses to determine whether prospective surveillance targets are foreigners abroad errors are inevitable Some of the communications the NSA collects under the Act then will be purely domestic '7 The Act 17 Notably a 2009 New York 1 Elmer article discusses an episode in which the NSA used the Act to engage in signi cant and systemic overcollection of such domestic l3 99 Jameel Jaffer 14 should require the NSA to purge these communications from its databases but it does not The procedures allow the government to keep and analyze even purely domestic communications if they contain significant foreign intelligence information evidence of a crime or information Again foreign intelligence information is de ned exceedingly broadly The procedures allow the government to collect and retain communications protected by the attorney-client privilege The procedures expressly contemplate that the NSA will collect attomey-client communications In general these communications receive no special protectionithey can be acquired retained and disseminated like any other Thus if the NSA acquires the communications of lawyers representing individuals who have been charged before the military commissions at Guantanamo nothing in the procedures would seem to prohibit the NSA from sharing the communications with military prosecutors The procedures include a more restrictive rule for communications between attorneys and their clients who have been criminally indicted in the United States the NSA may not share these communications with prosecutors Even those communications however may be retained to the extent that they include foreign intelligence information c Congress should amend Section 702 to prohibit suspicionless dragnet collection of Americans communications For the reasons discussed above the ACLU believes that the FISA Amendments Act is unconstitutional on its face There are many ways however that Congress could provide meaningful protection for privacy while preserving the statute s broad outline One bill introduced by Senator Wyden during the reauthorization debate last fall would have prohibited the government from searching through information collected under the FISA Amendments Act for the communications of speci c known U S persons Bills submitted during the debate leading up to the passage of the FISA Amendments Act in 2008 would have banned dragnet collection in the rst instance or required the government to return to the FISC before searching communications obtained through the FISA Amendments Act for information about US persons Congress should examine these proposals again and make amendments to the Act that would provide greater protection for individual privacy and mitigate the chilling effect on rights protected by the First Amendment Excessive secrecy surrounds the government s use of FISA authorities Amendments to FISA since 2001 have substantially expanded the government s surveillance authorities but the public lacks crucial information about the way these authorities have been implemented Rank and le members of Congress and the public communications Eric James Risen O icicrls Say US Wiretaps Exceeded Law NY Times April 15 2009 14 100 Jameel Jaffer 15 have learned more about domestic surveillance in last two months than in the last several decades combined While the Judiciary and Intelligence Committees have received some information in classi ed format only members of the Senate Select Committee on Intelligence party leadership and a handful of Judiciary Committee members have staff with clearance high enough to access the information and advise their principals Although the Inspectors General and others le regular reports with the Committees of jurisdiction these reports do not include even basic information such how many Americans communications are swept up in these programs or how and when Americans information is accessed and used Nor does the public have access to the decisions that assess the meaning scope and constitutionality of the surveillance laws Aggregate statistics alone would not allow the public to understand the reach of the government s surveillance powers as we have seen with Section 215 one application may encompass millions of individual records Public access to the FISA Court s substantive legal reasoning is essential Without it some of the government s most far reaching policies will lack democratic legitimacy Instead the public will be dependent on the discretionary disclosures of executive branch of cialsidisclosures that have sometimes been self serving and misleading in the past 18 Needless to say it may be impossible to release FISC opinions without redacting passages concerning the sources and methods The release of redacted opinions however would be far better than the release of nothing at 11 Congress should require the release of FISC opinions concerning the scope meaning or constitutionality of FISA including opinions relating to Section 215 and Section 702 Administration of cials have said there are over a dozen such opinions some close to one hundred pages long 19 Executive of cials testi ed before Congress several years ago that declassi cation review was already underway 20 and President Obama directed the DN1 to revisit that process in the last few weeks if the administration refuses to release these opinions Congress should consider legislation compelling their release Possible vehicles include the LLBERT-E Act cited above or the Ending Secret Law Act HR 2475 113th Cong 2013 a bipartisan bill sponsored by Rep Adam Schiff Todd Rokita and sixteen other members of the House Congress should also require the release of information about the type and volume of information that is obtained under dragnet surveillance programs The leaked Verizon order con rms that the government is using Section 215 to collect telephony metadata about every phone call made by VBNS subscribers in the United States That the 18 See e Glenn Kessler James Clapper 5 Least Untr'uthfitl Statement to the Senate Wash Post June 12 2013 http wapost WOVVSu 19 See Eric 1H Secret Court Lastly Broadem Powers NY Times July 6 2013 http nytims leeiAS 2 Prehearing Questions for Lisa 0 Monaco Upon Her Nomination to be the Assistant Attorney General for National Security Sen Select Comm on intelligence 112th Cong at 12 13 available 15 101 Jameel Jaffer 16 government is using Section 215 for this purpose raises the question of What other tangible things the government may be collecting through similar dragnets For reasons discussed above the ACLU believes that these dragnets are unauthorized by the statute as well as unconstitutional Whatever their legality however the public has a right to know at least in general terms What kinds of information the government is collecting about innocent Americans and on what scale IV Summary of recommendations As discussed above the ACLU urges Congress to Amend Section 215 of the Patriot Act and Section 702 of FISA to prohibit suspicionless dragnet monitoring or tracking of Americans communications 0 Require the publication of past and future opinions insofar as they evaluate the meaning scope or constitutionality of the foreign intelligence laws - Require the publication of information about the type and volume of information that the government obtains under dragnet surveillance program 0 Hold additional hearings to consider further amendments to PISA including amendments to make FISC proceedings more transparent Thank you for this opportunity to present the views 16 102 Mr GOODLATTE Thank you Mr Jaffer Mr Bradbury welcome TESTIMONY OF STEVEN G BRADBURY DECHERT LLP Mr BRADBURY Thank you Mr Chairman Ranking Member Conyers and distinguished Members of the Committee I believe both of the recently disclosed NSA programs are critical to our national security and I have every confidence that each is authorized by statute consistent with the Constitution and appropriately protective of privacy and civil liberties The first program involves the acquisition of telephone metadata under a Section 215 business records order This metadata consists only of tables of numbers indicating which phone numbers called which numbers and the time and duration of the calls It doesn’t reveal any other subscriber information and it doesn’t enable the Government to listen to anyone’s phone calls There is no monitoring or tracking of phone calls The Constitution does not require a warrant supported by probable cause to acquire this metadata Courts have held that there isn’t a reasonable expectation of privacy in the phone numbers that are dialed And the production of business records like these doesn’t involve a Fourth Amendment search This acquisition is authorized under the terms of Section 215 because the use of the metadata is relevant to counterterrorism investigations Acquiring a comprehensive database enables better analysis of the telephone links and calling patterns of terrorist suspects which is often the only way to discover new phone numbers being used by terrorists To connect the dots effectively requires the broadest set of telephone metadata The same relevance standard applies in other contexts such as administrative subpoenas and grand jury subpoenas which unlike Section 215 typically do not require court approval While the metadata order is extraordinary in the amount of data acquired it is also extraordinarily narrow and focused because of the strict limitations placed on accessing the data There is no data mining or trolling through the database looking for suspicious patterns By court order the data can only be accessed when the Government has reasonable suspicion that a particular phone number is associated with a foreign terrorist organization And then that number is tested against the database to discover its connections If it appears to be a U S number the necessary suspicion can’t be based solely on First Amendment protected activity Because of this limited focus only a tiny fraction of the total data has ever been reviewed by analysts The database is kept segregated and is not accessed for any other purpose and FISA requires the Government to follow procedures overseen by the court to minimize any unnecessary dissemination of U S numbers Any data records older than 5 years are continually deleted from the system The order must be reviewed and reapproved every 90 days And my understanding is that since 2006 14 different Federal judges have approved this metadata order Let me now turn to the surveillance program that targets foreign communications This program is authorized under Section 702 of 103 FISA and if we just track through the provisions of Section 702 we can see the outline of this program With court approval Section 702 authorizes a program of foreign-focused surveillance for periods of 1 year at a time This authority may only be used if the surveillance does not one intentionally target any person of any nationality known to be located in the United States two target a person outside the U S if the purpose is to reverse target any particular person believed to be in the U S three intentionally target a U S person anywhere in the world and four intentionally acquire any communication as to which the sender and all recipients are known to be in the U S Section 702 mandates court approval of the targeting protocols and of minimization procedures to ensure that any information about U S persons that may be captured in this surveillance will not be retained or disseminated except as necessary for foreign intelligence purposes From everything that has been disclosed about this program including the so-called PRISM Internet collection I don’t think there is any reason to doubt that this foreign-targeted surveillance is just what Section 702 was designed to authorize Thank you Mr Chairman The prepared statement of Mr Bradbury follows 104 TESTIMONY OF STEVEN G BRADBURY Before the HOUSE COMMITTEE ON THE UDICIARY Oversight Hearing into The Administration s Use of FISA Authorities July 17 2013 Thank you Chairman Goodlatte Ranking Member Conyers and distinguished Members of the Committee I appreciate the opportunity to appear before the Committee today to address the statutory authorities and constitutional principles governing the two National Security Agency programs that have been the subject of recent disclosures These are First the acquisition of telephone call-detail records that involves only telephone metadata not the content of any phone calls or the names or addresses of any phone subscribers and Second the surveillance including the so-called Internet collection that is targeted at the communications of foreign persons reasonably believed to be located outside the United States I believe it is most useful to discuss the legal basis for each of these two programs separately since they are authorized under two different provisions of the Foreign Intelligence Surveillance Act or ISA though of course the programs can and should work together as part of the overall counterterrorism efforts of the United States Section 215 Order for Acquisition of Telepl le Metadata Let me focus first on the telephone metadata program As the Government has stated this program is supported by a business records order issued under the provision added by section 215 of the USA PATRIOT Act See 50 U S C 186 This section 215 order must be reviewed and reapproved by the federal 105 judges who sit on the FISA court every 90 days I understand that 14 different federal judges have approved this order since 2006 The metadata acquired consists of the transactional information that phone companies retain in their systems for a period of time in the ordinary course of business for billing purposes and that appears on typical phone bills It includes only data fields showing which phone numbers called which numbers and the time and duration of the calls This order does not give the government access to any information about the content of calls or any other subscriber information and it doesn enable the government to listen to anyone s phone calls Access to the data is limited under the terms of the court order Contrary to some news reports there s no data mining or random sifting of the data permitted The database may only be accessed through queries of individual phone numbers and only when the government has reasonable suspicion that the number is associated with a foreign terrorist organization If it appears to be a US number the suspicion cannot be based solely on activities protected by the First Amendment such as statements of opinion books or magazines read Web sites visited or places of worship frequented Any query of the database requires approval from a small circle of designated NSA officers A query will simply return a list of any numbers the suspicious number has called and any numbers that have called it and when those calls occurred Nothing more The database includes metadata going back five years to enable an analysis of historical connections Any records older than ve years are continually purged from the system and deleted In analyzing links to suspicious numbers any connections that are found to numbers inside the United States will of course be of most interest because the analysis may suggest the presence of a terrorist cell in the US Based in part on that information the FBI may seek a separate FISA order for surveillance of a US number but that surveillance would have to be supported by individualized probable cause 106 The NSA has confirmed that in all of 2012 there were fewer than 300 queries of the database and only a tiny fraction of the data has ever been reviewed by The database is kept segregated and is not accessed for any other purpose and FISA requires the govermnent to follow procedures overseen by the court to minimize any unnecessary dissemination of US numbers generated from the queries In addition to court approval the 215 order is also subject to oversight by the executive branch and Congress ISA mandates periodic audits by inspectors general and reporting to the Intelligence and Judiciary Committees of Congress When section 215 was reauthorized in 2011 I understand the leaders of Congress and members of these Committees were briefed on this program and all members of Congress were offered the opportunity for a similar briefing Legal Basis and Constitutional Standards Now let me address the statutory and constitutional standards applicable to the acquisition of this telephone metadata Section 215 permits the acquisition ofbusiness records that are relevant to an authorized investigation Here the telephone metadata is relevant to counterterrorism investigations because the use of the database is essential to conduct the link analysis of terrorist phone numbers described above and this type of analysis is a critical building block in these investigations In order to connect the dots we need the broadest set of telephone metadata we can assemble and that s what this program enables The legal standard of relevance in section 21 5 is the same standard used in other contexts It does not require a separate showing that every individual record in the database is relevant to the investigation the standard is satisfied if the use of the database as a whole is relevant As I ve indicated the acquisition of this data and the creation and use of this database are not only relevant to ongoing counterterrorism investigations they re necessary to those investigations because they offer the only means to conduct the critical analysis that provides links to new phone numbers used by agents of foreign terrorist organizations 107 In terms of the background constitutional principles it s important to rem ember that the Fourth Amendment itself would not require a search warrant or other individualized court order for such data acquisition A government request for a company s business records is not a search within the meaning of the Fourth Amendment Government agencies have authority under many federal statutes to issue administrative subpoenas without court approval for documents that are relevant to an authorized inquiry In addition grand juries have broad authority to subpoena records potentially relevant to whether a crime has occurred and grand jury subpoenas also donit require court approval In the modern world of electronic storage and data compilation reliance on the same relevance standard in these other contexts can also result in extremely expansive requests for business records In addition the Fourth Amendment does not require a warrant when the government seeks purely transactional information or in etadata as distinct from the content of communications This information is voluntarily made available to the phone company to complete the call and for billing purposes and courts have therefore said there s no reasonable expectation that it s private See Smith v Maryland 442 US 735 743-44 1979 Quart v Arch Wireless Operating 70 529 F 3d 892 904-05 9th Cir 2008 I would stress however that section 215 is more restrictive than the Constitution demands because it requires the approval of a federal judge In this way Congress in the PATRIOT Act adopted a requirement for judicial review and approval of FISA business records orders that is more protective of privacy and civil liberties interests than the Constitution would otherwise demand And while the 215 order for metadata is extraordinary in terms of the amount of data acquired it s also extraordinarily narrow and focused in terms of the strict limitations placed on accessing the data at the back end Section 702 Order Targeting Foreign Communications Let me now turn to the other NSA program at issue The surveillance program targeting the Internet and other communications of foreign persons reasonably believed to be outside the United States This program which includes the so-called collection is supported by a FISA court order issued under section 702 the provision for programmatic foreign-targeting authority 108 that was added by the FISA Amendments Act of 2008 See 50 U S C 1881a Similar authority was initially provided on a temporary basis in the Protect America Act of 2007 The best way to understand this foreign-targeting program is to review the provisions of section 702 which lays out the governing framework approved by Congress Section 702 provides that the Attorney General and the Director of National Intelligence may jointly authorize for up to one year at a time targeted surveillance of the communications of non-US persons who are reasonably believed to be located outside the United States to acquire foreign intelligence information provided the ISA court approves the targeting procedures under which the surveillance occurs and the minimization procedures that govern use of the acquired information Under section 702 the surveillance may not 1 intentionally target any person of any nationality known to be located in the United States 2 target a person outside the US if the purpose is to reverse target any particular person believed to be in the U S 3 intentionally target a US person anywhere in the world and intentionally acquire any communication as to which the sender and all recipients are known to be in the US Section 702 requires the Attorney General to adopt and the FISA court to approve targeting procedures reasonably designed to ensure compliance with these limitations as well as detailed minimization procedures designed to ensure that any information about US persons captured through this surveillance will not be retained or disseminated except as necessary for foreign intelligence reporting purposes Any foreign intelligence surveillance that is targeted at a particular US person or any person believed to be in the United States requires a traditional individualized ISA order supported by probable cause Like the business records provision of FISA section 702 goes beyond the baseline protections of the Fourth Amendment Federal courts have consistently held that the Constitution permits the executive branch to conduct intelligence 109 surveillance within the United States without court involvement provided the surveillance is focused on foreign threats See cg United States v Twang Din 7 Hung 629 F 2d 908 914 4th Cir 1980 By establishing a detailed procedure for court approval and congressional oversight section 702 therefore provides a system of foreign intelligence surveillance that is more restrictive than the Constitution would otherwise require The PRISM Internet collection is precisely the type of court-approved foreign-targeted intelligence surveillance that Congress intended to authorize when it enacted and reauthorized section 702 by overwhelming majorities This program is subject to extensive reviews and periodic reports to Congress by inspectors general in addition to the oversight of the FISA judges Moreover Iunderstand that in advance of the reauthorization of section 702 in 2012 the leaders and full membership of the Intelligence Committees of both Houses of Congress were briefed on the classified details of this program and all members of Congress were offered the opportunity for such a brie ng For these reasons I think these two programs are entirely lawful and are conducted in a manner that appropriately respects the privacy and civil liberties of Americans and the principles enshrined in the Constitution Thank you Mr Chairman 110 Mr GOODLATTE Thank you Mr Bradbury Ms Martin welcome TESTIMONY OF KATE MARTIN CENTER FOR NATIONAL SECURITY STUDIES Ms MARTIN Thank you Mr Chairman and Ranking Member Conyers and other distinguished Members of this Committee for inviting me to testify today I want to first of all thank the Committee for having asked some questions of the Government witnesses that I hoped the Committee would ask and congratulate you upon obtaining answers at least in part to some of those questions I want to raise two overarching concerns today about these programs and note first of all that I think it does not make sense for the Committee to consider the 215 program and the 702 program separately and instead that they need to be looked upon as part of an overall set of foreign surveillance authorities that work together to allow the Government to collect and keep massive amounts of information about Americans and to do so in secret And that that is the real nut of the problem We have an incredibly complex set of laws governing those authorities and setting up safeguards as this Committee is well aware and we need to understand how those work together where the holes are and where the potential changes are So I would urge the Committee in going forward to expand your oversight and your questions to look at not just 215 and 702 but all the FISA Authorities and not just as exercised by the National Security Agency but equally significantly regarding how the information is shared between the NSA the FBI the DHS and perhaps the White House or the NCTC as well Those are equally critical questions for both civil liberties and for evaluating the effectiveness and the necessity of the programs I agree with Mr Jaffer and many of the Members here today that there is a lot to be concerned about that we are seeing the unprecedented massive collection of information on Americans the creation of secret data banks which are available for Government analysis queries and data mining by ever increasingly sophisticated computerized tools and the dissemination of both raw information and the results of such analysis or data mining throughout the executive branch I think that the question is whether or not these new activities by the Government have the potential to fundamentally change the relationship between citizens and the state I think that was the concern that many Members of this Committee were raising today In connection with the question of what is the harm here I very much appreciate that the Administration and the NSA have been very detailed about the internal safeguards that they have created to ensure that no rogue employee or contractor can access the personal information of an individual American and misuse it I do not believe however that that is the primary worry of the American people about these programs I think rather the primary worry and the primary concern when FISA was first drafted was that the Government would succumb to the temptation to use 111 information that it has about individual Americans to chill political dissent to challenge its political opponents et cetera I think this is one of those instances where when you discuss it in advance you can never believe that this would actually happen but that when you look at history it has happened too many times already in my own lifetime Just a couple of specific comments about information which I believe would be crucial for this Committee’s consideration First on questions about what kinds of authorities does the Government have under Section 215 one of the Members asked about the collection of Internet metadata I would urge you to find out specifically whether or not under the Government’s current understanding of its legal authorities under 215 it could make an application for the collection of all Internet metadata on communications within the United States whether or not it could make an application under 215 for bulk collection of geolocation data or for bulk collection of financial records or credit card records I think it is also important to know when the Government makes one of these 300 queries to the 215 database does that query require the database to do a chain-linked—a chained analysis Not simply what numbers have been in contact with the first number but to then do a chain-linked analysis I know my time is up and if I might just make one last comment On the overall question of this is foreign intelligence and traditionally it is done in secret it is always done by government There is a high cost when it is discussed in public It is foreign intelligence when it is directed against foreigners and other governments overseas We are talking about massive authorities for massive collections on Americans And that may be foreign intelligence It is also at the core of the concerns of the constitutional framers I think that what we have seen about the cost of secrecy here is that—— Mr GOODLATTE Sorry Ms MARTIN That is okay The prepared statement of Ms Martin follows 112 Testimony of Kate Martin Director Center for National Security Studies Before the Committee on the Judiciary United States House of Representatives Oversight of the Administration's use of FISA Authorities Wednesday July 17 2013 Chairman Goodlatte Ranking Member Conyers and distinguished Members of the House Judiciary Committee thank you for inviting me to testify today I am the Director of the Center for National Security Studies a think tank and civil liberties organization which for almost 40 years has worked to ensure that civil liberties and human rights are not eroded in the name of national security The Center is guided by the conviction that our national security must and can be protected without undermining the fundamental rights of individuals guaranteed by the Bill of Rights and that respect for our constitutional system of government will accomplish that In our work on matters ranging from national security surveillance to intelligence oversight we begin with the premise that both national security interests and civil liberties protections must be taken seriously and that by doing so solutions to apparent conflicts can often be found without compromising either I appreciate the Committee s long history of work since 9 '1 on the amendments to the Foreign Intelligence Surveillance Act FISA contained in the Patriot Act and the many amendments since then including the 2008 Foreign Intelligence Amendments Act and its serious consideration of the civil liberties concerns expressed by my organization and our colleagues I want to raise two overarching concerns for this Committee s consideration during the current debate which 1 hope will inform your consideration of necessary oversight measures as well as speci c changes to the statutory language First we are concerned that the unprecedented massive collection of information on Americans the creation of secret databanks which are available for government analysis queries and data-mining by ever increasingly sophisticated computerized tools and the dissemination of both raw information and the results of such analysis or data mining throughout the executive branch pose unprecedented threats to First and Fourth Amendment liberties Second the secrecy that surrounds this government surveillance not of foreign governments or other foreign targets but of Americans poses a signi cant and perhaps unprecedented challenge to our system of constitutional checks and balances 113 It has long been recognized as Senator Sam Ervin the author of the Privacy Act put it in 1974 l jespite our re verence for the constitutional principles of limited Government anal eedoni ofthe individual Government is in danger of tilting the scales against those concepts means of its injormation gathering tactics and its technical capacity to store and distribute information When this quite natural tendency of Government to acquire and keep and share information about citizens is enhanceal computer technology and when it is subjected to the inirestrained motives ofcountless political administrators the resulting threat to ina ividrialprivacy makes it necessary Jr Congress to rea irm the principle of limited responsive Government on behalfoffreedoni Each time we give up a bit of information about ourselves to the Goverimient we give up some forti'freeolom the more the Government or any institution knows about its the more pct-tier it has over us When the Government la-rort s all ofonr secrets we star-rd naked be ore o 'icial power Stripped ofonr privacy we lose our rights and privileges the Bill of Rights then becomesjust so many words Senator Sam Ervin June 11 1974 reprinted in Committee On Government Operations United States Senate And The Committee On Government Operations House Of Representatives Legislative History Of The Privacy Act Of 1974 $3418 at 157 Public Law 1976 A key purpose of the Fourth Amendment was to prevent general searches by the government This was accomplished in part through the Amendment s requirement of particularity -- that the target ofa search or seizure the place to be searched the things to be seized all had to be specifically identified in a warrant issued by ajudge We now face the situation where the government has the capacity to collect massive amounts ofinformation on millions of Americans to store that information inde nitely and to analyze that information to discover enormous amounts of revealing information about individual Ameri can s private lives and political activities As others have demonstrated the underlying rationales for the old distinctions between content and meta data or the notion that Fourth Amendment protections have no applicability to information about an individual held by third parties no longer hold in the new world of massive electronic data about individuals held by internet service providers telecommunications companies and others At the same time there has been a fundamental shift in the way that the government collects information on Americans The two sections of PISA that have been the focus of the leaks SO 1861 1881a sections 215 and 702 are apparently used by the government to obtain information about thousands of communications of Americans but without even any suspicion about the individual Americans whose communications are being collected To the contrary these authorities are apparently being used for en masse bulk collection on thousands or 114 millions ot individuals without any individualized showing ofsuspicion about any party to the communication whether American or foreigner While it is true that the NSA has had such bulk collection capabilities for many years those capabilities were aimed overseas and their purpose was to collect information about foreign governments and foreign terrorist organizations That collection did include incidentally acquired information on Americans communications but that was not the purpose of the collection and there were strict rules about the NSA disseminating that information to other government agencies for their use Nor as far as we know was the government creating massive databases on Americans communications as an integral part of its foreign intelligence activities Questions about these PISA authorities As others have detailed there are serious questions whether these bulk collection programs are within the intended statutory authorizations eg the domestic telephony meta-data program under sec 215 There are serious constitutional concerns about the breadth of and lack ofindividualized suspicion or particularity in these programs And there are serious questions whether the secrecy built into the programs is constitutional and whether it is consistent with effective oversight or a working system of checks and balances In examining these authorities and programs it is important to review not only whether private information about Americans held in government databases is adequately protected from rogue employees or contractors stealing or misusing the information While safeguards are needed against that kind of privacy abuse the more important danger is that there are inadequate safeguards against government violations of the law or against deliberate misuse of the information to target the government s political opponents chill dissent or unconstitutionally pro le minority communities As the original Framers recognized all governments may succumb to the temptations of power In my lifetime Senator McCarthy smeared civil servants the FBI tried to blackmail Dr Martin Luther King in order to weaken the civil rights movement President Nixon created an enemies list of his political opponents and the Justice Department wrote a secret legal opinion that the President c0uld break the law in secret if he deemed it necessary for national security Since the leaks about these two particular programs the Executive Branch has vigorously defended their usefulness in detecting and stopping terrorist plots and that is certainly relevant to the Congress and public consideration These claims merit careful analysis especially in light of former NSA Director Michael Hayden s explanation that it is very diffi cult to determine which information was key in stopping any particular attack l And in doing that analysis there are at least two key questions to be considered are there less intrusive ways to obtain this I you know 7 were asking for evidence that A caused B And right now if we re really good at our art you ll never be able to do that It ll all be a blend of different pieces of glass that you now get to create a mosaic from Remarks of General Michael Hayden Is Big Brother Watching You American Enterprise Institute June 19 201 3 aci 3 06 r14 turf b 115 information and more importantly are there other equally or more effective counter terrorism measures available We have already begun to see alarmist statements unsupported by any analysis to the effect that without these programs we face another 9 1 Such statements interfere with rather than serve a careful and deliberate consideration of the issues The dangers of secrecy In addition to the fundamental change in the scope of and authority for government surveillance of Americans the attendant secrecy has made it almost impossible to have the kind of informed public debate and democratic decision-making fundamental to the notion of self- govemment It is not debatable that secrecy increases the danger that government will overreach At the same time there is no question that foreign intelligence activities depend to some degree on secrecy A democraCy must continually work to figure out ways to provide for the national defense while respecting civil liberties and preserving constitutional government The increase in technological surveillance capabilities global connectedness and the reliance on electronic communications has made doing this more complex The expansion of secret government surveillance and secret legal authorities especially in the last 12 years requires us to ask whether we are Witnessing the serious erosion of our constitutional system of checks and balances and the rise of a system of secret law decreed by courts carried out in secret enabling the creation of massive secret government databases on Americans personal and political lives As you know the system of checks and balances relies upon the existence of a Congress which engages in a public debate informed by the relevant information from the Executive courts which hear two sides argue a question and know their opinions are subject to appeal and public critique and an Executive branch who will be called to account for ignoring the law All of this in turn depends upon an engaged press and informed public First step necessarv public disclosures The President has declared that he welcomes this debate and the Administration has already declassified some important information This hearing and this Committee s involvement in the debate is a crucial step in restoring the needed transparency The fact that the NSA is involved and that these programs or at least the 702 program may include legitimate foreign intelligence activities that do not affect Americans should not be used as a reason to bypass the jurisdiction of this Committee or the Senate Judiciary Committee As this Committee has recognized ever since the introduction of the Patriot Act surveillance authorities concerning information on Americans is at the core of this Committee s responsibilities and congressional and executive branch procedures and rules for considering such legal authorities and conducting oversight should recognize the Judiciary Committees as full partners with the Intelligence Committees in these activities As long ago as 1990 the Justice Department expressed concern 116 about the involvement ofthe Judiciary Committees 2 This concern is not only misplaced but inappropriate and we urge you to call upon the Executive Branch to treat the Committee as a full partner going forward and to insist that the rules of the House implement that understanding We urge the Committee first to insist on disclosure of suf cient information to enable the public to understand the existing legal authorities for national security surveillance of Americans and the scope of such surveillance Such disclosures are necessary for an informed public debate which in turn can inform Congress consideration of these issues We appreciate the legislation offered by the Ranking Member and others to accomplish this However we do not believe that legislation should be required in order to obtain the necessary disclosures from the Executive Branch and urge the Committee to make clear to the Executive Branch that you expect the necessary information to be disclosed as soon as possible and without waiting for enactment oflegislation That information should include a full explanation of the FISA court s interpretations of existing law and the Executive 5 legal arguments made to the court whether or not the court accepted them If redaction of the court opinions and government pleadings is too time-consuming or difficult the Executive should prepare a White Paper as soon as possible as it did in January 2006 about its legal basis for the NSA warrantiess program after that program was revealed by The New York Times in December 2005 It is also essential to disclose the scope of the programs collection and retention of information on Americans As Professor Daniel Solove has pointed out secrecy at the level of 2 In 1990 Office of Intelligence Policy and Review more a memo to the Office of the Deputy Attorney General explaining that it had been working with the National Security Agency for the past three years to develop possible amendments to the Foreign Intelligence Surveillance Act to meet a need created by technological advances The 19901nerno identified several policy and tactical issues counseling against seeking new legislation David S Kris Modernizing the Foreign Intelligence Surveillance Act Progress To Date and Work Still to Come in Legislating the liar Terror fln Agenda for Reform Ed Benjamin Wiltes Georgetown University Law Center and The Brookings Institution 2l 7 25l 2009 These policy and tactical issues included the fact that committee jurisdiction in both the House and Senate is concurrent between the Intelligence and Judiciary Committees and while the problems giving rise to the possible amendments have all been discussed with the Intelligence Committees they had not been discussed with the Judiciary Committees the risk of added congressional restrictions if the statute is opened up to amendment and the fact that the proposed amendment to PISA to resolve he SA problem is certain to be written in such enigmatic terms that only those who have been briefed in executive session will understand them rims risking speculation in tire media about what is really intended and probably deep suspicion that something sinister is going an emphasis added Thoughts on a Blue Sky Overhaul of Surveillance Laws Challenges by David S Kris Lang are May 19 2013 i dxw Iavd areblog corn 201 3 0 Sithough ts on-ambhiemskv a 1 en Ues #nt It is not clear that the Justice Department yet understands that the only antidote to media speculation and deep suspicion by the American public is openness about what is going on 117 an individual suspect is different from keeping the very existence of massive surveillance programs secret Five about privacy Daniel Solove The Washington Post June 13 2013 Keeping secret the identiti cation of any particular individual or group subjected to surveillance may be necessary in order to effectuate the goals of the surveillance at least for so long as the surveillance and the underlying investigation continues But to the extent that disclosure of the scope of US government collection programs on Americans may make some investigations somewhat harder and counterterrorism experts dispute that3 there is an overriding interest in public disclosure because it is essential to a democratic debate and decision on what is the proper scope of these programs Furthermore the rationale for keeping secret the legal interpretation of section 215 -- that disclosing the government s claim that legal authority exists for such a program would reveal the existence of the program and thereby render it useless -- seems to have been undercut by the government s claim that the program continues to be necessary even though its existence is now public Public explanation and disclosure of related surveillance authorities not just the 215 and 702 programs is also essential 0 For example the press reports that there was a similar program to collect internet metadata that was halted in 2011 This Committee should insist that the Executive Branch publicly disclose whether such a program existed what legal authorities were used whether in its view existing legal authorities would allow the resumption of such program and whether the government still maintains the metadata collected by that program 0 This Committee should demand public disclosure from the Executive Branch concerning whether section 215 or any other authority would allow mass collection of other kinds of records held by third parties e g medical records credit card records or nancial records lfnot then the Executive Branch should disclose why not a This Committee should also demand disclosure of any other FISA court opinions or summaries concerning legal authority for surveillance of Americans The existence of such an opinion in 2007 has been hypothesized As far as I can determine the government seems to have persuaded the FISA Court in January 2007 that the international gateway switches which essentially are the junctions between the U S The argument that this sweeping search must be kept secret from the terrorists is laughable Terrorists already assume this sort olthing is being done Only law-abiding American citizens were blissfully ignorant of what their government was doing Why you should worry about the Richard A Clarke New York Daily News June 12 20 13 1309 118 and the rest of the world s telecommunications grids are reasonably particular FTSA facilities and that al Qaeda is using them Ifthat is right it means that a handful of orders gave the government access to all or almost all of the international telecommunications traffic entering or leaving the United States That is very speedy and agile The problem of course is that while al Qaeda is using those switches so is everyone else Even under the most extreme estimates al Qaeda cannot account for more than a tiny percentage of calls transiting the switches David Kris Guide to the New FISA Bill Part Bar kittizalirm June 22 2008 Ex balkin b The scope of existing legal authorities can only be understood by understanding the history of FTSA court opinions even if such a 2007 opinion has been superseded by the 2008 enactment of the FISA Amendments Act 0 This Committee should demand public disclosure from the Executive Branch ofa complete report concerning the overlapping authorities for collection of information about Americans communications national security letter authorities pen register trap and trace authorities Without an understanding of how these authorities overlap and differ it will be difficult to legislate adequate protections for privacy and First Amendment rights 0 This Committee should demand a complete public report from the Executive Branch concerning what rules apply to accessing analyzing data-mining keeping using or disseminating information concerning Americans communications That includes not only the minimization rules which have been classified without any apparent necessity for doing so but rules and regulations issued by different agencies for example the FBI and As a former official and recognized expert in the field explains Today a good deal of foreign intelligence collection is regulated by the Fourth Amendment and Executive Order 12333 and its subordinate procedures but not in any meaning rl way by Slatule emphasis addec David Kris Thoughts on a Blue-Sky Overhaul of Surveillance Laws Approach May 20 2013 Www lawfarebl ogcom 20 -of- surveillance-laws-approach The number complexity and overlap of authorities and rules is such that a simple list of them will not be suf cient for the public to understand what its government is up to nor for the Congress to exercise meaningful oversight The Executive Branch however is operating on the basis of an understanding concerning the standards and scope of legal collection and use of information about Ameri cans That understanding needs to be publicly shared with the Congress and the American public 119 Substantive fixes to limit massive government surveillance and provide safeguards The current controversy provides an important opportunity to reexamine the existing surveillance regime That examination depends upon a public accounting of what the government is doing in order to have a debate regarding its risks and bene ts and possible alternatives In order to ensure that such an accounting happens we urge the Committee to consider revisiting the existing sunset for the FISA Amendments Act and to shorten it to align with the existing sunset for section 215 in mid-2015 so that these authorities will be revisited together While there are some immediate xes that could be adopted it is crucial not to overlook the more fundamental questions at stake For example proposals to require more transparency of FISA court opinions or some kind of court advocate to oppose the government in secret while perhaps useful are not sufficient to address the fundamental change in judicial function wrought by giving the FISA court thejob of approving programmatic surveillance or making constitutional rulings in situations where the individual whose rights are at stake not only never has an opportunity to appear before a court and challenge the ruling but is never even informed that the government has amassed information about her There are also signi cant and complex technical questions that should be understood in evaluating these programs and designing safeguards which questions have not yet been adequately discussed or analyzed See for example Remarks of Steven M Bellovin and Daniel Weitzner before the Privacy and Civil Liberties Oversight Board July 9 2013 A former NSA mathematician and analyst has also proposed a way whereby when the NSA collects and analyzes massive amounts of data on Americans without any particularized warrant a warrant would be required before the identity of that American and the results of that analysis or information could be shared with other parts of the government and acted upon 4 Again we appreciate the opportunity to appear before the Committee as part of this work and would be pleased to offer whatever further assistance might be useful 4 See William Binney's description in The Secret Sharer ls Thomas Drake an Enemy of the State Jane Mayer The New lbrker May 23 201 1 him flunwncu gill 1 05 23 1 0523 fa fact mas cr'7c 120 Mr GOODLATTE We will have more opportunity to speak in just a moment Ms MARTIN Thank you Mr GOODLATTE But we will begin with the questioning and I will start with Mr Jaffer If the acquisition of metadata is the type of mosaic of information that Sotomayor warned about in the Jones case how would you limit the Government from collecting it Mr JAFFER Well one possibility would be to require the Government to get an individualized warrant for that information And whatever the answer to that question is I think that there have to be more safeguards than are in place right now Even the Government seems to concede that its surveillance of this kind of information has to be reasonable under the Fourth Amendment and I just don’t see you how can possibly justify the collection of everybody’s phone records on that standard And I think many Members rightly pointed out that no other court has ever granted a subpoena has ever upheld a subpoena that sought records on that scale Mr GOODLATTE That is with regard to 215 One objection you have to 702 information collected is that information about Americans can be swept up in the search for foreign intelligence information But isn’t that the case with any Title III wiretap Mr JAFFER It is the case and that is why the courts apply a reasonableness analysis And all we have argued in the context of challenges to 702 is that the same reasonableness analysis has to be applied to the Government surveillance under that provision And the Government in our constitutional challenges happen to have actually conceded that point The only dispute was whether these procedures were in fact reasonable and we don’t think they are Mr GOODLATTE If the FBI is conducting a wiretap of a business that is also part of a criminal conspiracy innocent third parties sometimes are involved and they are monitored That information is minimized to protect the people’s privacy How is this different from Section 702 surveillance which must be also minimized Mr JAFFER Right I think that is a good question I think that one of our concerns is that the word ‘‘minimization’’ is being used as a kind of talisman as if when the Government invokes the prospect of minimization that should end the discussion But you have to look at what the Government means when it says minimization And fortunately we now have the Government’s minimization procedures under 702 They were released by the Guardian and by the Washington Post and they allow us to evaluate the extent to which those procedures actually protect Americans’ privacy And I think it is quite clear from the procedures that they don’t protect Americans’ privacy They allow the Government to sweep up Americans’ communications both domestic and international to retain those communications forever to the extent that they include foreign intelligence information a term that is defined very broadly under the statute Even if the communications don’t contain foreign intelligence information they can be retained for as long as 5 years So these are procedures that don’t do very much to protect Americans’ privacy 121 Mr GOODLATTE Let me turn to Mr Baker and Mr Bradbury and ask them if they want to comment on Mr Jaffer’s observation and tell us why it is necessary to collect a broad set of metadata under Section 215 Does this help the Government connect the dots Mr BAKER The difficulty the Government faced is that each telecommunications company keeps its records as it chooses and they may maintain the records for a year or two but they won’t keep it for a long time And you can’t easily chain from one database to the next to find out the communications of the people who are linked to the person that you are investigating And so and to ask the companies to keep it for the Government’s convenience to consolidate the database for the Government’s convenience is something that is really asking quite a bit of a private citizen just to help the Government do its job So the Government did this and then acted—— Mr GOODLATTE But let me interject that depending upon the cost of the Government taking it and gathering it and holding it we are asking all those phone companies’ customers who are also taxpayers of the United States to bear that burden So I understand the problem with asking the phone companies to do it But we also have to evaluate whether the benefits derived from this are justified by the costs of it Mr BAKER That is a perfectly fair point although the rate payers and the customers of the phone companies will pay for it in the end if it is a cost to the companies But I agree with you that it is a cost to the United States I think it is a cost that we bear because we are trying to protect all Americans from terrorism and that it is fair for the U S Government to bear that cost In the end though the searches can’t be done without a reasonable and articulable suspicion which in practice has turned out to be much tougher than the standard for serving a subpoena on an individual telephone company As I said there are hundreds of thousands perhaps a million such subpoenas Mr GOODLATTE I understand But that also leaves aside the question of whether the Congress intended to give the NSA the authority to gather the data in the fashion they did under the business record provision But let me ask Mr Bradbury another question and he can comment on this as well if he’d like Mr Jaffer’s testimony claims the Government is tracking all American phone calls under the 215 program Is this what is happening Mr BRADBURY No As I indicated they are not tracking calls They are not monitoring calls The data sits in a database and is only accessed when there is a suspicious number and you want to find the links and connections that that number has to other numbers But you need to have the whole database and getting the whole database is relevant to the counterterrorism investigation because you cannot do the kind of sophisticated link analysis that the NSA does without having a comprehensive set of data It doesn’t have to be every single call record but it has to be the largest collection you can get in order to effectively find all of those connections And that is because of the technical way that they do 122 it but it is a super valuable tool and getting the database is relevant It would be the same if we had a suspicion that a terrorist had come into the country but we didn’t know exactly on what flight or where And you could use 215 to get the flight manifests of all flights in and out of the country during a period of time and you could put it in a database and you could query the person’s number name to find out when he came in It is relevant Mr GOODLATTE You raised a good analogy but my debate professor said analogy was the weakest form of argument So are you suggesting that it would be appropriate if the airlines did not keep that data for a sufficient period of time that it would be appropriate for the Government to tell all the airlines to provide them with all of the flight records of all American citizens so they could hold it in a database and check it when they needed to Mr BRADBURY Well it might be It might be something that you have to do to find that particular flight that you need to protect—— Mr GOODLATTE Well I wouldn’t argue that there might be occasions when that information would be useful but it would have to be weighed against both the cost of storing the data—and that is just not you know computer capability but also people to manage that—and the risks that are entailed by those people abusing that system if that indeed occurs Let me turn to Ms Martin however and your testimony includes a number of suggestions for increasing the visibility into the—increasing visibility into the FISA programs Which of these would you prioritize as a way to both preserve our national security efforts while also giving the public a better understanding of how the programs work Ms MARTIN I think that it is key to obtain an understanding of the court’s understanding of its legal authorities not just 215 but all of them and the Government’s interpretation and understanding of those legal authorities I think it is also key and the second thing that I would prioritize is getting a report from the Government how the existing FISA Authorities complement overlap and differ and—and what they allow and what they don’t allow I think otherwise we are going to be in the situation where we are talking about fixing 215 with regard to phone metadata without knowing how the Government is going to use national security letters or pen traps or 702 to get the same kind of data So I would prioritize knowing the law and understanding how that works and the Government’s understanding of the legal authorities And then after that some idea—some idea not the specifics—of the scope of the collection that is being done on Americans Mr GOODLATTE Thank you very much My time has expired The Chair recognizes the gentleman from Michigan the Ranking Member Mr Conyers for 5 minutes Mr CONYERS Thank you Chairman Goodlatte This has been a very important hearing and I wanted to begin by asking Professor Martin about the decision by Justice Alito a 5-4 decision as usual responding who dismissed a number of groups for lack of standing Reasoning that respondents can’t manufacture standing by choosing to make expenditures 123 Is the harm alleged by among others Amnesty International and ACLU hypothetical which was the basis of this conservative decision Ms MARTIN Thank you for that question Mr Conyers If I might answer it that case of course was a challenge to the constitutionality of the 702 collection program And one of the points that the Government made when it argued that the ACLU and Amnesty didn’t have the kind of particularized standing or showing of harm that the Constitution required was that others would be able to challenge the constitutionality of 702 collection and in particular individuals who were prosecuted using the fruits of such 702 collection Well now it turns out that the Government won’t even tell such people that it used the fruits of 702 collection in making a criminal case against them and they are not given that opportunity to challenge the 702 collection I do think that it is an appropriate question for the Congress to worry about wether you have designed a system that allows the Government to collect massive amounts of information about Americans in secret but somehow you haven’t set up any mechanism that the Supreme Court is going to recognize as granting standing to anybody to challenge the fact that information about them has been collected That is a problem that Congress can solve and should solve And that is a fundamental difference of course between foreign intelligence collection authorities that we are talking about today and the kind of criminal justice collection authorities that were discussed which is that there is the possibility of an open adversarial court challenge to criminal collection which doesn’t exist in this context Mr CONYERS Can I ask—— Ms MARTIN And to tell my colleagues—— Mr CONYERS Can I ask Mr Jaffer in addition to your four recommendations is there a way that we can reconcile our concern against terrorism and at the same time permit the largest usefulness of privacy possible You know after all if it hadn’t been for a couple of people leaking we wouldn’t have known about any of this as far as I am concerned Some say that somebody made a statement on the floor of the House If you happen to have caught it you could go back and track it But I think I am more concerned about the collection legality than I am about the uses to which it is put Mr JAFFER Well I think that you ought to be concerned about the collection The collection in the first instance implicates privacy It has a real effect on privacy That is where the privacy intrusion happens in the first instance And it also has a chilling effect on activity protected under the First Amendment It is the Government’s collection of that information that has the chilling effect If you remember during the 1960’s and ’70’s some State governments used subpoenas served on the NAACP as an effort to chill association with the NAACP And it was just the acquisition of that information that was chilling and those governments knew it And—— Mr CONYERS And more chilling now than anything is the fact that they have got information through phone numbers which can 124 easily be attached to names of everybody in the country for at least 6 years And that is probably the most disturbing aspect of this matter to me that I have been hearing today Mr JAFFER Mr Conyers if I could just point out that even if you accept the Government’s frame here and focus only on the uses I don’t think anybody should be misled by this 300 number which makes it sound like this is a very targeted program But if you think about the 300 number in relation to what was said on the previous panel about three hops the first hop takes you to say 100 people whose communications are pulled up The second one takes you to 10 000 and the third one takes you to 1 million And you do that 300 times I think it is safe to say that every American’s communications have been pulled up at least once Mr CONYERS Thank you very much Mr GOHMERT presiding I will recognize myself now and I appreciate your being here It is intriguing what we are talking about We are talking about the privacy the type of concerns that spawned a revolution back over 200 years ago We hear all this information about the FISA courts and that is the bulk of what you are being—you are talking about Anybody care to just briefly tell us what happened before there was a FISA court We know there have been national security secrets since the revolution itself What happened before there was a FISA court to protect us from ourselves Mr JAFFER It was left up to the executive It was unilateral action by the executive in the area of foreign intelligence surveillance And in fact—— Mr GOHMERT But here we are talking about surveillance of Americans in-country American citizens and that is what I am talking about If someone wanted to gather intelligence information about American citizens on American soil normally having been a judge and chief justice it is my understanding you went to a court You might be requesting in camera review of documents You might request that the court documents be sealed But we were able to work pretty well getting court orders before there was ever a FISA court was my understanding Mr JAFFER Actually Mr Chairman prior to 1972 for any national security investigation or many they were done without court approval without warrants And the United States Supreme Court in the Keith case 1972 said when it is a domestic security threat there has to be a warrant Left a footnote was not deciding foreign security threats Even if it is a U S citizen but associated with a foreign power that is threatening to the United States And the lower courts consistently held that the President could conduct warrantless surveillance for foreign intelligence purposes even of U S citizens and that the fruits of that surveillance could later be used in a criminal prosecution even if it hadn’t been supported by a warrant That is what the lower courts held Of course that did lead to abuses because the executive is making determinations about what he thought was a foreign threat and lines were crossed and abuses occurred That is why Congress and the executive branch reached a compromise in 1978 and created the FISA process to involve Arti- 125 cle III judges in the review and approval of those surveillance orders and also involve the Congress through the creation of the Special Intelligence Committees for oversight which hadn’t occurred before And so we have this compromise situation where the branches have come together to involve all three branches And of course limitations were discovered after 9 11 A lot of debate occurred and ultimately Section 702 was passed in 2008 to enable a very broad programmatic order for foreign collection directed at non-U S persons outside the United States Mr GOHMERT And that is a great distinction because I know in my freshman term ’05 and ’06 what we were told is this is only for you have to be a foreign agent a foreign individual And as long as it is an American citizen here on American soil with distinction for American citizen where intelligence gathering in another country didn’t violate local law There were all those distinctions being discussed But even through all of that my experience with conservative and liberal judges would have indicated that you wouldn’t have an order from a judge under our Constitution that requires specificity as to a place and information be gathered that would say something like this order from this court does All call detail records between the United States and abroad or wholly within the United States including local telephone calls I think that pretty much covers everything I see no specificity here Oh yes just get all the records And you should be comforted by the fact that you can get this stuff It is okay So I am just concerned I have now seen the incredible abuse by the FISA court in my opinion and I am just wondering if we are better off going to a system where we don’t require a FISA court There is not this Star Chamber What would be another alternative And that will be my last question Ms MARTIN If I might Mr Gohmert I think that the original conception of the FISA court was quite limited and perhaps quite useful which was that it would act as a kind of usual court in issuing a warrant right which is always done ex parte Because the search that the FISA court was going to authorize—which had to be particularized—had to be based on probable cause was never going to be revealed Congress set up secret procedures for doing that But it was always recognized that what we are talking about is searches and seizures of Americans And now the Government has taken the concept of a FISA court to kind of in my view put a fig leaf on a totally different kind of collection directed at Americans It is not particularized It is totally in secret And that includes the 702 program which—— Mr GOHMERT Right Ms MARTIN And so you need to go back to the drawing board about are we really going to have unparticularized collection that is intended and does collect information about Americans Mr GOHMERT Well let me tell you we have got votes coming up in just a few minutes And so I want to get to people who want to ask questions 126 But I would ask the witnesses if you have any proposals if you could provide that in writing to us any alternatives any major changes because I think this justifies major changes And with that who is next Okay Recognize the gentleman from New York Mr Nadler Mr NADLER Thank you Mr Jaffer various Administration officials have used comparison of Section 215 authority to what can be obtained through a grand jury subpoena something we expressly include in the statute itself as a limiting principle Are you aware of any examples where by virtue of grand jury subpoena law enforcement has been able to engage in the type of ongoing bulk collection what you described as dragnet collection of information done under Section 215 Mr JAFFER No not even close Mr NADLER Mr Baker are you aware of any such Mr BAKER There are plenty of subpoenas for massively overbroad collections of data so that the Government can be comfortable that it has gone through everything that might be relevant Mr NADLER There are subpoenas grand jury subpoenas for in effect everything in the world without being specific all metadata Mr BAKER Addressed to a particular case or database there are plenty of cases where a single database has been subpoenaed Mr NADLER No a single database But has there ever been a grand jury subpoena that says let us see the outside of every postcard or letter sent in the United States Or let us see the phone numbers of everybody who called anybody in the United States Mr BAKER So if I could go back to an example that the Chairman mentioned as a practical matter every flight that comes into the United States every travel reservation on that flight is provided to the Government by the carrier every single one Mr NADLER Has there ever been—has there been a subpoena for every flight record in the United States Mr BAKER Every flight record coming into the United States yes Mr NADLER A subpoena for every flight record Mr BAKER No It is under a law passed by the United States Congress that says you must provide this information to the Government so it can search for terrorists Mr NADLER You must provide the name of every individual on every flight Mr BAKER Yes That was passed in 2002 and it has been enforced Mr NADLER And that is a subpoena Mr BAKER And it has caught a lot of terrorists Mr NADLER Excuse me That was a subpoena Mr BAKER No Mr NADLER That is a law Mr BAKER It was a law Mr NADLER Well that is a little different from a subpoena Okay Mr Bradbury you talk about how the metadata that is acquired and kept under this program can be queried when there is responsible suspicion as if that meets the statute The statute 127 talks about collection You seem to be talking about query There is a difference between collection and query Mr Jaffer let me ask you this Does the Fourth Amendment talk to collection or to queries Mr JAFFER Collection Mr NADLER Collections So a broad—okay Let me go to the next question because I have a bunch quickly Mr Jaffer you talked—Mr Baker rather you talked about Section 702 as the discussion of Section 702 has really hurt us because it has told the Europeans and everybody else what we are doing for foreigners But nothing as I think you point out in your testimony too nothing that we have learned about Section 702— I can’t think of anything we have learned about Section 702 from Mr Snowden—or however you pronounce his name—that wasn’t included in the debate in 2008 on Section 702 when we knew we were going to be collecting across the board on everybody And the question in that debate was—and I thought the resolution of that debate was inadequate which is why I voted against it—how were we going to protect Americans against being caught up And this is what we have been talking about But the assumption there was that foreigners have no constitutional right and no privacy rights And we can get all the information on them anyway So how is this information now harmful in a way that the congressional debate wasn’t Mr BAKER I think that the congressional debate seeded what we are now seeing It is a cost It is a cost of having the debate we are having and my point here is that Europe will extract that cost from companies that did nothing but their obligation under the law Mr NADLER But they would have extracted that cost just because of the congressional debate if they were paying attention Mr BAKER What I say is that this Congress and this Administration has an obligation to stand between those companies and—— Mr NADLER That is a separate discussion and that may be But—okay Ms Martin how can we—how can Congress solve the problem We have a basic problem Every challenge to abuse of constitutional rights by the Bush administration and the Obama administration has been met in the same way Either the use of the state secrets doctrine to say you can’t go to court on that The subject matter of the discussion is a state secret Therefore move to dismiss the case ab initio Or you have no standing because you cannot prove that you personally were harmed by this Now Mr Snowden may have done a public service in giving some people standing by proving that they were harmed by this because anyone who is a Verizon subscriber arguably can now go into court and say that How can we deal with these two problems that an Administration any Administration can violate constitutional rights from here to kingdom come subject to no court review because of either the state secrets doctrine or the standing problems because they don’t admit what they are doing in the first place It is secret 128 It is secret what we are doing to you Therefore you have no standing because you can’t prove what we are doing to you Mr GOHMERT The time has expired but you may answer briefly Ms MARTIN Well I think one key way of doing it which is outside the court system is for the Congress to insist that the Administration disclose all that information The Government then won’t be able to claim state secrets because it has disclosed the information Mr NADLER Disclose what information Ms MARTIN Disclose the information about what it has done and who it has done it to right And something like that did happen and is happening in the context of the violations of the laws against torture and that helps in creating a consensus that we know the Government violated the law We have some kind of public debate about what the Government shouldn’t do and whether or not we end up with an individual remedy in the court is a question that I would be glad to think about some more I know there are now five lawsuits seeking individual remedies that have a better chance than they did before but they all depend upon public disclosure by the Administration of information Mr NADLER Or by Mr Snowden or somebody else Ms MARTIN Well that is more difficult because then the Administration claims state secrets Mr GOHMERT We are going to have to—in order to get the other two Democrats and one Republican left we are going to need to move on But I would ask if you have additional information if you would prove that in writing in response to that question And now at this time we yield 5 minutes to the gentleman from Idaho Mr Labrador Mr LABRADOR Thank you Mr Chairman Mr Jaffer I am trying to figure out how we got from Smith v Maryland to the moment that we are at today Can you try to explain to me what exactly maybe the proponents of these laws and the interpretation of these laws are trying to say because I am not following Smith v Maryland very well I have read it a couple of times Mr JAFFER Right Mr LABRADOR But I am not sure that you can get to the collection of metadata all over the United States Mr JAFFER Well I think that there is a vast chasm between Smith and the kind of surveillance that is going on now Smith was a case about a specific criminal investigation It was a pen register installed on one person’s phone for 2 days We are now talking about 7 years of surveillance of every American’s phone calls So I don’t think it is a serious argument to say that Smith justifies what the Government is doing now I think that the more relevant case is Jones which was decided just last year A 9-0 court found that the tracking of individuals’ location over the long term constituted a search under the Fourth Amendment and even in Jones the surveillance was narrower and shallower than the kind of surveillance we are talking about today Mr LABRADOR And they said that the tracking of individuals over a long period of time resulted in a search and seizure Can you 129 explain why they said that Because there is now an argument that collecting all this data actually gives you very personal information about the individual Mr JAFFER That is right Sometimes we talk about metadata as if it is less sensitive and that is not really true Using this kind of metadata in Jones for example the court noted that you could just tracking somebody’s location over a long period of time you could draw all sorts of accurate conclusions about their medical history about their intimate relationships about their professional life about their personal life And the same is true of phone calls If the Government has access to your call records over a long period of time the Government can draw all those conclusions in the same way Now that is not to say that the Government should never have access to the phone records There are circumstances in which the Government has to have that access but we just want to make sure that that is limited to cases specific cases in which the call records are in fact relevant to an investigation Mr LABRADOR And in Smith v Maryland there was a specific reason why it was relevant Correct Mr JAFFER That is correct Even in Jones there was that specificity Mr LABRADOR Okay So because what concerns me is that I think as a Government official as a legislator I would like to stop gang membership for example or I would like to stop child pornography or I would like to stop bank robberies And I could maybe pass a law that would require the Government to collect everybody’s data right everybody’s metadata so we can stop those crimes What do you think about that Ms Martin Ms MARTIN I think that is the proven solution of countries like the Soviet Union and China Mr LABRADOR Exactly Ms MARTIN I mean and I think there have actually been studies showing that you can stop crime by that kind of government surveillance and collection Mr LABRADOR So Mr Baker what is the difference I want to stop all these crimes and I would think that everybody in this Congress would think that that would be inappropriate for me to pass a law that would allow me to collect all the metadata of every American so I could stop child pornography What is the difference between that and what is happening here in this instance Mr BAKER We are responding in the case of the 215 programs to the fact that there is a well-organized offshore conspiracy seeking to carry out attacks on us Mr LABRADOR I understand that but—and I agree with that And that is why maybe I don’t have as much problem with the 702 program But you are collecting the data or the Government is collecting the data of American citizens and saying that it may become relevant after we collect it Why not just collect the data of every American because it might become relevant in a child pornography case later 130 Mr BAKER All of these searches there is really two issues here First is it a search at all And Smith suggests it isn’t And if it is a search is it reasonable And that depends in part on the nature of the justification and the problem that you are trying to solve In this case we are trying to solve a problem that requires classified tools and is a national security threat That is different from trying to stop bank robberies frankly Mr LABRADOR Well and I just find it fascinating that the author of the PATRIOT Act and most of the Members of Congress who voted for the PATRIOT Act had no idea that the Government would go to these lengths to collect data And I hope that we can continue to have these hearings Thank you very much for being here Mr GOHMERT The time has expired Thank you very much Mr LABRADOR I yield back my time Mr GOHMERT I yield to the gentleman from Virginia Mr Scott for 5 minutes Mr SCOTT Thank you Mr Chairman I know we are trying to get three Members in in this very short period of time So let me just pose a question for Mr Jaffer real quick I am interested in what you can do with the data after you have gotten it There is a real question as to whether you have the legal authority to get all the phone calls But after you have got it we found out in a DNA case that if you get someone’s DNA legally and you find out it is not them you can still run that DNA through the database without any probable cause no articulable suspicion anything You have the data and you can use it What is the limitation on the data after you have acquired it Now they say you have to have articulable suspicion to query the data that you have obtained But the Section 215 doesn’t require any such limitation It just tells you to describe what you are getting This seems to be a little gratuitous policy not a limitation by statute And so can you say a word about where the limitation is after you have gotten the data what you can do with it Mr JAFFER Well on the 215 program we don’t have the Government’s minimization procedures They haven’t been released Mr SCOTT Well let me just—and the minimization procedure specifically has—the witness before was a little murky on this— has—specifically has a criminal justice exception So running a criminal justice investigation with data you now have can be done without articulable suspicion or probable cause or anything You just go look to see as the gentleman was suggesting who has been committing gang crimes You got a gang member you can spin his little thing around to find out who he is talking to Is there a limitation on what you can do after you have gotten it Mr JAFFER No almost certainly not And we know that that the limitations are very weak because we have seen the 702 minimization procedures Those were disclosed And if they are any guide I think it is safe to assume that the 215 procedures don’t protect Americans’ privacy 131 Mr SCOTT Now if you were running a criminal investigation without probable cause by virtue of getting information in the hands of the FBI and we have removed that firewall that used to be there what would be the sanction against improperly using that information Would the exclusionary rule kick in Mr JAFFER Well I don’t think we will ever know because the Government doesn’t notify criminal defendants that it is using these kinds of surveillance programs Mr SCOTT Would fruit of a poison tree kick in Mr JAFFER Well it would if the Government disclosed But it doesn’t disclose It keeps it secret from criminal defendants and this is one of the things that we have been very frustrated with is that the Government told the Supreme Court that criminal defendants would be notified when information was introduced against them derived from these programs And it is not in fact giving that kind of notice Mr SCOTT Thank you Mr Chairman as a courtesy to my colleagues I will yield back at this time Mr GOHMERT Thank the gentleman from Virginia At this time I will yield to Mr Johnson for 5 minutes Ms JACKSON LEE Mr —excuse me Mr Gohmert This is regular order Mr GOHMERT Okay Well I was just going by the list that the clerk gave me here Ms JACKSON LEE The list goes from the beginning of the Committee I think Mr Johnson knows Thank you Mr GOHMERT Exactly All right Then we will yield 5 minutes to my friend from Texas Ms Jackson Lee Ms JACKSON LEE I thank you very much Let me just say that this has been not eye-opening but it raises more questions than probably it gives answers And I think I want to start immediately with the question Mr Jaffer on the 215 PATRIOT Act which grants the FBI broad authority as we have seen in the previous hearing and what we have read and could put and does put civil liberties at risk From your perspective what danger might occur or what would happen if we did not renew Section 215 Mr JAFFER Well I think that is a good question to ask the Government So far they haven’t been able to explain why the dragnet surveillance under this provision is actually necessary They haven’t been able to point to cases in which this particular surveillance program was crucial I think it is a good question to put to them But I would just say that while I think that your concern about 215 is totally justified I think that the Committee ought to be concerned about 702 as well And the Government keeps emphasizing that this is a program directed at people abroad and that is true But in the course of surveillance of people abroad the Government is building huge databases of Americans’ phone calls not just the metadata But the—— 132 Ms JACKSON LEE So you are saying that reverse targeting is occurring even though language put in the bill to not have that occur Mr JAFFER I actually am not saying that the Government is violating the statute I am saying that they are using the statute precisely as it was designed to be used but the statute allows them to gather Americans’ communications so long as they are not targeting a specific American Ms JACKSON LEE So to hold them until they believe something rises to the top Mr JAFFER That is right Ms JACKSON LEE So it is sort of like storing in your Internet or storing pictures in your iPhone or something of the sort Mr JAFFER That is exactly right Ms JACKSON LEE Let me to go Mr Baker You sat before Homeland Security a number of years Thank you for your service Thank all of you for your service But you made the point that on your blog that you thought that the FBI could have caught the people on 9 11 but there was too liberal—civil liberties was too much in the way What are you suggesting when the idea of 9 11 was one these were foreign nationals So the FBI had opportunity to deal with them in the construct of our civil liberties and it was basically connecting the dots or not finding out that guys were learning to take off and not land in a plane training place down in Florida What civil liberties need to be violated in order to have protected us from 9 11 Mr BAKER The problem is that there were two al-Qaeda operatives in the country for 2 weeks We knew—the FBI the CIA all knew they were here but the FBI’s task force that was organized for the Cole bombing as I remember was not allowed to go looking for them even though they had by far the most resources of anybody to find them And the reason they were not allowed to do it was because the FISA court had made up a doctrine that led to the wall that said we are going to keep law enforcement over here and intelligence over here and not allow them to talk And out of fear that the FISA court would punish them for talking and for going to look for these guys the Cole task force stood down We lost our best chance to catch those guys at that time and it was because the FISA court was so aggressively enforcing a doctrine that frankly it shouldn’t have adopted in the first place but which it adopted pretty clearly for civil liberties reasons Ms JACKSON LEE Well let me ask your comment on that Ms MARTIN I think the record is much more complex There were many times that the Government dropped the ball when it might have stopped 9 11 and most of them had absolutely nothing to do with the law The CIA for example knew for many months the names of the hijackers They knew that they wanted to carry out an attack against the United States They knew that they had gotten visas and they didn’t tell the FBI to go find those people inside the United States And the wall had nothing to do with preventing the CIA from telling the FBI to go find known al-Qaeda terrorists in the United 133 States The record is just much more complicated than Mr Baker is making it out Ms JACKSON LEE Well let me just finish So let me just make this comment Maybe I will be short of the red light One I maintain that we have too many contractors unknown and unbeknownst in the intelligence community I thank them for their service but they need to rein in this rampant proliferation of contracts even though the Government tried to defend its satellites as this and really have a profound staff that is here in the United States Government The last point is the FISA court can stand a lot of review One I think there should be something about the balance of Democratic appointed judges and Republican But I also think the release of opinions should be something that we should be able to allow to the public and therefore find a way to rein in all of this I yield back Mr GOHMERT Thank you We have 41⁄2 minutes left—4 minutes 20 seconds left in the vote So I yield to the gentleman for such time Mr Johnson Mr JOHNSON I will be brief Thank you Mr Chairman Section 702 collecting foreign data intelligence data metadata content of communications and so forth Is that correct Mr JAFFER Not quite Section 702 is surveillance directed at people outside the United States but it is surveillance of Americans’ communications with those people outside the United States Mr JOHNSON Yes and collection of the scope you don’t disagree with In other words content metadata Mr JAFFER That is right Mr JOHNSON And minimalization procedures in place that perhaps may not be as stringent as they should Perhaps I am not saying that that is the case or not But with respect to the data collected under 702 of Americans that are just incidentally caught up in foreign-to-foreign communications or a foreign target that is communicating with someone in the U S who owns that data Is it the person who initiates the call Is it the person who accepts the call Or is it both or—— Mr JAFFER My guess is—— Mr JOHNSON Or is it the provider the service provider who owns the data Mr JAFFER I think that Americans have a reasonable expectation of privacy in their international communications Mr JOHNSON Have there been court cases specifically on that point Mr JAFFER Yes On the content of communications yes Mr JOHNSON Yes Okay So now I would submit that when you are talking about surveillance when you look at the definition of the word ‘‘surveillance ’’ it includes keeping a close watch on people or things And so you can surveil a thing That thing may not have a constitutional right but a person certainly does I think we should make or I think we should be prepared to distinguish between surveillance what kind of surveillance we are talking about That is a term that kind of gets everybody excited That is about really all I have to say Anybody got any comments about that 134 No response Mr JOHNSON I will yield back Mr Chairman Mr GOHMERT The time has been yielded back And at this time this concludes today’s hearing Thanks to all of our witnesses for attending We know it has been a long day for you and we appreciate you bearing with it It is an important subject It is only our future our security and our privacy So thank you and we look forward to your comments that we anticipate receiving back in writing things that you wished you had said or wanted to say and to direct us So thank you very much Without objection all Members will have 5 legislative days to submit additional written questions for the witnesses or additional materials for the record This hearing is now adjourned Whereupon at 2 32 p m the Committee was adjourned APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD 135 136 Questions for the Record submitted to James Cole United States Department of Justice Robert S Litt Office of Director of National Intelligence John C Inglis National Security Agency and Stephanie Douglas FBI National Security Branch The Committee had not received a response to these questions at the time this hearing record was finalized and submitted for printing on December 12 2013 137 Privacy and Civil Liberties Oversight Board Back in 2004 this Committee's Subcommittee on Commercial and Administmtive Law spearheaded the effort to create the Privacy and Liberties Oversight Board After some reorgzuiization and con rmation of its chairman it is now up and running and has held a number of hearings and have issued its semi-annual report 1 To What extent have your agencies been working with the Board to ensure that intelligence programs do not unduly infringe on privacy and civil liberties 2 Will you commit to working Closely and cooperatively with the board going Forward 138 Response to Questions from the Hearing from Stewart A Baker Steptoe Johnson LLP Oversight Hearing en the Administratien's use if FISA Authorities Committee an the Judiciary United States House of Representatives Held July 17 2013 September 13 2013 t0 Supplemental Question by Stewart A Baker Partner Steptoe Johnson LLP Question Mr GOHMERT But I would like to ask the witnesses if you have any proposals if you could provide them in writing to us any alternatives any majnr changes because I think this justifies major changes Resgense it is becoming increasingly obvious from the nature of the documents that have been leaked that Mr Snowden and some of those working with him are quite prepared to release material that harms US security even when the material reveals no misconduct While it is always useful to periodically review oversight mechanisms like the FJSA court in the present climate 1 would caution against radically changing how we provide oversight of foreign intelligence sun'eiliance To respond in knee-jerk fashion to revelations that may he more advocacy than journalism would make had law and reward Mr Snowden s illegal actions 139 Response to Questions for the Record from Jameel Jaffer American Civil Liberties Union ACLU 140 Jameel at fer Laura Murphy 3 ACLU 3 2 QUESTION FROM REP STEVE COHEN Are there ways to enhance the role of the Privacy and Civil Liberties Oversight Board so as to ensure a better balance between legitimate national security needs on the one hand and privacy civil liberties and public transparency on the other Congress should enhance the PCLOB in at least four ways in order to ensure that the Board plays a meaningful role in overseeing the impact of government policies on privacy civil liberties and public transparency First Congress should grant the Board the authority to challenge the classification decisions of other agencies when it nds reason to believe classi cation powers have been abused to cover up wrongdoing to prevent embarrassment or to stifle legitimate public debate Second the Board should enjoy a set of enforcement powers that could be used to implement its recommendations Third Congress must ensure that the Board is given suf cient resources in terms of both staff and budget unto pursue its mandate on an ongoing basis And nally assuming all three prior enhancements have been achieved Congress should consider broadening the Board s mandate so that its oversight authority ranges to other areas of policymaking such as certain law enforcement programs that raise serious privacy and civilvliberties issues In broadening the mandate however it is critically important not to dilute the time attention and resources devoted to counterterrorism programs 141 Response to Questions from the Hearing and for the Record from Kate Martin Center for National Security Studies 142 in addition to existing authorities the report should identify existing prohibitions if any on collecting or data-mining information on Americans and all restrictions if any on sharing information with the White House including the National Security Council or foreign governments 0 which agencies may exercise which authorities and what information may be may be shared between each agency and the scope of the collection of Americans personal information including the kinds ofinforrnation the amount of information collected and the approximate number of Americans whose information has been collected Representative Gohmert 125-126 7 have now seen the incredible abuse by the FISA court in my opinion and I wondering ifwe are better of going to rt system where we don 't require a FISA court There is not this Star Chamber What would the another alternative But I would ask the witnesses ijyott have on proposals ifyou could provide that in writing to us any alternatives any major changes because 1 think mojur changes Since its creation the FISA court has issued particularized orders based on a nding of probable cause and those authorities do not raise the concerns you have articulated I would urge the Congress however to examine carefully whether the new authorities in particular the FISA Amendments Act section 702 of the FISA which do not require any particularity in collection activities but are speci cally intended to collect information on Americans even though they may not be technically targeted should be limited or repealed Doing so would address some of the more problematic authorities of the FISA court As afirst step Congress should shorten the current sunsetfor those the current date 0f201 7 to align with the current mid 2015 sunset datefor section 215 In addition Congress should amend section 215 to make clear that it does not authorize bulk collection of information on Americans There have been some proposals to provide for an independent advocate to participate in the secret proceedings before the FISA court Such an advocate might prove helpful to the judges on the court who do not have the bene t of briefing by two parties FISA courtjudges could perhaps be consulted on how helpful such a position would be But providing such an advocate would be no substitute for reinstating public adversarial judicial review The essence of judicial review of the legality of the government s action is that such review is transparent a court acts openly and that the individual whose rights are at stake participates in the proceeding The current proposals would not address either of these key requiremems transparency or adversarialness -- for restoring real judicial review 143 Accordingly this Committee should examine other ways to provide adversarial judicial review ofindividual instances of foreign intelligence surveillance Such judicial review could like judicial review of searches and seizure done for law enforcement purposes take place after the fact when the surveillance is nished While the original FISA contained a provision for such review 50 USC 1806 that provision does not apply to all current collection authorities under FISA Moreover it has not proved suf cient to provide a real opportunity for a subject of surveillance to challenge the surveillance in an open and adversarial proceeding before a judge Representative Nadler 127 Ms Martin how can we how can Congress solve the problem We have a basic problem Every challenge to abuse of constitutional rights by the Bush administration and the Obama administration has been met in the same way Either the use of the state secrets doctrine to say you can t go to a court on that he subfect matter ofthe discussion is a state secret Therefore move to dismiss the case ab initio Or you have no standing because you cannot prove that you personally were harmed by this Now Mr Snort a'en may have done a public service in giving some people standing by proving that they were harmed by this because anyone who is a Verizon subscriber arguable can no go into court and say that How can we deal with these bro problems that an administration an administration can it'iolate constitutional here to kingdom come subject to no court review because of either the state secrets doctrine or the standing problems because the don t admit what they are doing in the first place It is secret It is secret what we are doing to you Therefore you have no standing because you can t prove what we are doing to you There are several steps the Congress could take to ameliorate the problem that individuals cannot challenge the government s actions against them in court when the government refuses to acknowledge its activities and claims that the state secrets privilege or other doctrine prevents litigation First the Congress should insist on public disclosure ofinformation concerning the govemment s activities In addition to public disclosure concerning the legal authorities and scope of surveillance programs generally Congress should also require investigation of specific instances of surveillance where there are credible allegations that individual rights have been violated either by congressional committees an inspector general or other body That investigation could then inform additional public disclosures concerning questionable instances of government surveillance And those disclosures in turn would facilitate judicial challenges by the affected individuals In particular the government would not be able to seek dismissal of such challenges on state secrets grounds because the information relevant to pursuing the case would be public 144 In addition 1 would urge the Congress to examine the possibility of creating a statutory cause of action for violation of an individual s constitutional rights Doing so would make it more dif cult for the government to secure dismissal of a challenge on technical grounds and help insure that the court considers the merits of whether the govemment has violated someones rights Representative Cohen Are there ways to enhance the role ofthe Privacy and Civil Liberties Oversight Board so as to ensure a better baiance between legitimate national security needs on the one hand and piracy civil liberties transparency 0n the other Congress should ensure that the Privacy and Civil Liberties Oversight Board receives adequate funding to enable it to carry out its statutory mandate At the same time the Congress and the federal courts have the ultimate constitutional responsibility for ensuring pri vacy7 civil liberties and public transparency while protecting the national security 145 Center for National Security Studies I protecting cirii liberties and human rights Director Kate Martin September 17 2013 The Honorable Bob Goodlatte Chair Committee on the Judiciary U S House of Representatives Washington DIS 20515 Dear Chairman Goodlatte Thank you for the opportunity to testify before the Committee at its hearing on oversight of the Administration s Use of FISA Authorities Wednesday July 17 2013 Enclosed please nd written answers to the Members questions asked during the hearing and for the record Sincerely Kate Martin Director 730 Fcnmiylvunia Ave Flour Washington DC 211006 tel 202 721 -5 15 Fax 202 5311-11123 146 Center for National Security Studies protecting out liberties and human rights Director Kate Martin September 20I3 Answers om Kate Martin to Members questions from the hearing on Jul i 208 andfor the record RepreSentative Goodlatte inst me turn to Ms Martin however and your testimony inciuries a number ofsuggestt ansfor increasing the visibility into the increasing into the FISA programs Which oftitese wouidyott prioritize as a way to both preserve our national security e orts whiie aiso giving the pubiic ct better understanding ofitow theprogrants work Since the hearing the govertunent has disclosed additional opinions by the FISC court and a White Paper concerning the 215 program which disclosures are welcome and useful Nevertheless we still do not have a complete understanding ofthc PISA court's views on the law not of the executive s interpretation of the law Accordingly I would prioritizo obtaining disclosure of the following information 1 All FISA com-t opinions conccming the law including those authorizing bulk collection ofinternet meta-data and the government's pleadings containing legal arguments submitted to the court Any operational details which are still a secret could be redacted from these docummts 2 In light of the government s disclosure of'thc 215 program there should he a nctitr declassi cation review and public release of the Inspectors Generals report required by the ISA Amendments Act Report on the President's Surveillance Program Of ces of the Inspectors General of the Department of Defense Department ofiustice Central Intelligence Agency National Security Agency and Of ce of the Director of National Intelligence July 10 2009 Unclassi ed version available at This report is crucial for understanding the legal history and scope oftlie current surveillance programs 3 Equally important this Committee should demand a comprehensive pubiic report from the Executive Branch conceming goverrunent collection of infonnation about Americans for national sectuity or foreign intelligence purposes The report should detail Ave NW Floor Washington DC 20006 tel 202 3 2 useso fax 202 SIB-DIR cnss@tn1s or5 147 the overlapping authorities for collection of infomiation about Americans communications e g national security letter authorities pen registerltrap and trace authorities other PISA authorities a the rules governing accessing anniyzin 0 data mining keeping using or disseminating information concerning Americans communications 0 in addition to existing authorities the report should identify existing prohibitions ifnny on collecting or data-mining information on Americans and all restrictions if any on sharing information with the White House including the National Security Council or foreign governments which agencies may exercise which authorities and what in formation may be may be Sheree between each agency and I the scope of the collection of Americans personal information including the kinds of information the amount of infonnation collected and the approximate number of Americans whose has been collected Representative Gohmert 9 18 3 437 have now seen the incredible abuse by the FISA court in my Optician and I umjust wandering ifwe are better c gomg to a system where we don require a FISA court There is not this Star Chamber What would-be another alternative But I would ask the wiMesses i'fyou have ify'ou cauldprovide that in writing to us any alternatives any major changes because I think major changes Since its creation the FISA court has issued particularized orders based on a nding of probable cause and those authorities do not raise the concerns you have articulated I would urge the Congress however to examine carefully whether the new authorities in particular the FISA Amendments Act section 7'02 of the FISA which do not require any particulzuity in collection activities but are speci cally intendetl to collect information on Americans even though they may not be technically targeted should be limited or repealed Doing so would address some of the more problematic authorities of the FISA court As o rst step Congress should shorten the ailment those authori'ti es cm the current date of 7 to align with the current mid 2015 sunset darefor section 235 In addition Congress should amend section 215 to make clear th at it does not authorize hulk collection of inform etion on Americans There have been some proposals to provide for an independent advocate to participate in the secret proceedings before the FISA court Such an advocate might prove helpful to the judges on the court who do not have the bene t ofbrle ng by two parties court judges oculd perhaps be conculted on how helpful such a position would be But providing such an advocate would be no substitute for reinstating public adversarial judicial review The essence of judicial review of the legality of the government s action is that such review is transparent a- 148 court acts openly and that the individual whose rights are at stake participates in the proceeding The current proposals would not address either of these key requirementS-mtransparency or adversarialness for restoring real judicial review Accordingly this Committee should examine other ways to provide adversarial judicial review ofindiwiciual instances of foreign intelligence surveillance Such judicial review could like judicial review of searches and seizure done for law enforcement purposes take place alter the fact when the surveillance is nished While the original PISA contained a provision for such review 59 U S C 1806 that provision does not apply to all current collection authorities under PISA Moreover it has not proved suf cient to provide a real opportunity for a subject of surveillance to challenge the surveillance in an open and adversarial proceeding before a judge Representative Nadler 191-192 Mr Martin flow can we izow com Congress solve the problem We have a basic problem Every chuiienge to abuse ofcousiituiionui rights by the Bush administration and the 0 5mm administration has been met in the some way Either the use oftiie store secrets docirine court on that The subject matter ofthe discussion is a Store secret erefore move to dismiss the case ob Oryou have no standing because you cannoiprore that you personally were harmed by thie Now Mr Snowden may have done a public service in giving some people standing byproving that they were harmed by this became anyone who is a Verizon subscriber arguable can no go into court and say ihut How can we deal with these two problems that on adminirirution any administration can violate constitutional rigiits om here to kingdom come subject to no court review because ofeirfier the store secrets doctrine or the standingproiwiems because they don t admit what they are doing in tke rsipluce It is secret It is secret what we are doing to you Therefore you have no standing because you can i prove what we are doing to you There are several steps the Congress could take to ameliorate the problem that individirals cannot challenge the government s actions against them in court when the government refuses to acknowledge its activities and claims that the state eecrets privilege or other doctrine prevents litigation First the Congress should insist on public disclosure of information concerning the government s activities In addition to public disclosure concerning the legal authorities and scope of soweillance programs generally Congress should also require investigation of speci c instances of surveillance where there are credible allegations that individual rights have been violated either by congressional committees an inspector general or other body That investigation could then inform additional public disclosures concerning questionable instances of government suweillanee And those disclosures in turn would facilitate judicial challenges by 149 the affected individuals In particular the government would not be able to seek dismissal of such challenges on state secrets grounds because the information relevant to pursuing the case would be pubiio in addition I would urge the Congress to examine he possibility of creating a statutory cause of action for Violation of an individual s rights Doing so would make ii more dif cult for the government to secure digmissal of a challenge on teemiioal grounds and help inguie that the court considers the merits of whether he government has violated someone s rights Representative Cohen Are there ways to enhance lie role of the Privacy and Civil Liberi ies Qifersz'gkt Board so as to ensure a heifer bakmce beiween iegitz'mate national security needs on ike one hand andprivacy 05w fiberties andpziblic transparent cm the other Congress should ensure ihat the Privacy and Civil Liberties Oversight Board receives adequate mding to enable it to cairy out its statumiy mandate At the same time the Congress and the federal courts have the ultimate constitutional responsibility for ensuring privacy civil liberties and public transparency while protecting the national securiiy