tv Hillary Clinton to Address Supporters in Louisville Kentucky CSPAN May 11, 2016 3:43am-4:30am EDT
any foreigner overseas regardless of whether he poses any threat to the united states and obtained his communications with americans. will the government must certify that acquired foreign intelligence is one of its purposes, the law defines foreign intelligence broadly enough to include conversations about current events. moreover, the government has introverted the law to allow collection of communications, not just to and from the target, but about the target. this legal this legal change underlies the nsa's upstream collection program whereby a huge proportion of communication is flowing into and out of the united states are scanned for selectors associated with designated foreigners and picked up. they're used up screen, then essay collects more than 250 million internet communications per year.
that undoubtedly includes millions, if not not tens of millions of americans e-mails. as we know, wholly domestic domestic medications are included as well. to call this targeted, their deep constitutional concerns. the fourth fourth amendment may not apply to foreigners overseas but when a law is designed to collect communications between foreigners and americans, the fourth amendment is very much in play. when the fbi searches through those communications were evidence to use against americans in criminal cases and then fails to notify the defendant how it obtained the evidence, it drives a hold the size of fort me through the fourth minute. constitutional concerns aside, the mass collection of communications comes with
significant risks and harms. the fiasco reminded us of how vulnerable covenant databases are. any massive database that contain sensitive information about americans carries with it the risk of abuse or negligent mishandling by this sort feature administration. it also threatens our economic by impairing the legal and practical to do business with customers overseas. we are told these risks are justified because section 702 has oh two has helped to stop terrorist plots. but the question is not just whether section 702 is useful. we must also ask whether effective surveillance can be conducted in a manner that is less intrusive with fewer cost for liberties. one final point.
with constitutional balance set by the court, americans should be able to decide for themselves how much surveillance is too much. to do that we need information. five years after senator first requested an estimate of the number of american communications collected under section seven oh two, we are still waiting. congress and the public need this basic information for the democratic process to work. thank you. i look for to your questions. [inaudible] >> chairman grassley, ranking member leahy and members of the committee thank you for the opportunity to testify today and the reauthorization of section 702 of the fisa amendment act. in 2014 the privacy and civil liberties oversight board which i chair issued an extensive report on section seven oh two and how it operates. in part to foster just the type
of democratic debate were having today. in short, section 702 surveillance program collects the contexts of collects the context of communication of nine u.s. persons outside the united states for where there is a foreign intelligence value. as mentioned earlier it is proven to be a valuable intelligence tool for the government thwarting terrorist plots and provided valuable information to decision-makers. section 7027 oh two has two components. prism and upstream. the government collects the context of target emails and other comedic asian's from electronic medication providers. other targets are non-us persons, from time to time they communicate with americans and as result the government is collecting large quantities of americans can indication. these are incidental communications because the u.s. persons are not the target but this not in a room because they're known in advance that american medication will be collected. in contrast the upstream program they give access to the backbone over which some telephone internet and can collect e-mails and phone calls.
i using about collection the government does not look just in the header of just two and from an e-mail but also scans content of the e-mail for a targeted selector. as a result of flies and i were comedic in them by email and i sent her a message with an email address for my uncle in turkey so she has a place to say when she's traveling, if it turns out my uncle e-mail addresses one of the 94000 currently on target found at seven oh to program my email would be picked up and copied into an nsa database. even though none of us is excess suspected of wrongdoing. even my uncle may not be suspected of wrongdoing and may have valuable intelligence information. if this program is continue it should have a privacy and civil liberties particularly where u.s. persons are and i recommend
three changes. first, many of the communications collected under 702 have nothing to do with terrorism and crime. they include family photographs, love letters, personal and financial matters, discussion of physical personal financial matters, discussion of physical mental health and political and religious exchanges. u.s. person queries to that database are therefore capable of revealing a significant size of americans personal life. this case were americans who correspond frequently with foreigners including relatives, friends, business associates. since no one was ever issued for these communications there should be some form of protection. before quitting these databases for u.s. person identifier, intelligence agencies and the fbi should be required to cement a u.s. u.s. person identified queries to the fisa court for approval other than circumstances. most important here is that there be impartial life tenure of a federal judge as a final say over whether americans personal communications are collected and reviewed. second, upstream communication race to potential concerns. one is the collection of chilly
domestic communications to american to american and the others over collection of communications. building on the recommendations put forward on the 702 report technology evolves the government should be required to evaluate the effectiveness of screaming of communications and also should determine ways and separating these so weak that policy decisions as to whether all of them should be collected. there come a large number of u.s. persons incidental communications arse collected in 702. how many? in order to have an informed democratic debate about the scope of this program, it is important that citizens and members of congress know how many are being implicated in this program. at no reason to doubt that the government has had to encounter difficulties and quantify the number of u.s. persons.
nevertheless, i urge the committee to require all agencies under section 702 to develop a manageable way to gather statistics and provide them to congress on a regular basis. i hope congress will use the reauthorization process as an opportunity to enhance privacy and civil liberties protections from section 702. while maintaining a program that has provided an enormously invaluable information to protect the country from invaluable information to protect the country from terrorism. i appreciate the opportunity to present maybes to the committee. thank you. >> mr. chairman, rink and member leahy members of the committee, think of for the opportunity to testify today about section 72 of isa. i serve as a member of the privacy and oversight board. although you have already discussed some aspect of the 702 program, it has been so widely misunderstood that i think a few key points are worth stressing. the first is the limits under which the seven oh two program operates. section seven oh two, as
unanimously found as a targeted collection program. it is not authorized books for balance. the government may target only non-us persons located outside the united states which means it can never target any u.s. person located anywhere. and they could never target anyone located in the united states. the government cannot target just any form person located outside the united states. it can target only persons likely to communicate information about foreign intelligence topics approved by the fisa court. and in fact, the nsa targets only a tiny fraction of a percentage only a tiny fraction of a percentage point of internet users in the world. although u.s. persons cannot be targeted, some u.s. person communications will be incidentally collected. if a target communicates with the u.s. person for example, that communication will be collected. this does not mean that all of
that u.s. persons communication will be collected, but only his communications with the target. of course as chairman grassley noted if the medication reveal a terrorist threat within the united states, they would be the monk the most important communications collected under the program. but because the privacy implications for some u.s. persons, the statute requires the government operates the statute requires the government operates under strict rules that minimize privacy impact. the second major point is section 702 is unquestionably a highly effective source of foreign intelligence. mr. olson has already discussed this. it also unanimously found that it helps disrupt terrorist plots, identified previously in individuals involved in terrorism and understand terrorist operations, priorities, strategies, and tactics. the park including the authorized by congress. he did recommend refinance of the program but did not find it to be legally required. they did not reckon meant any legislative changes. it is worth noted that the five members were unanimous in the report to central conclusion. they're all unanimous in our recommendations for how to improve the privacy protections of the program role. the administration has implemented many of the recommendations and is working on the rest. one issue that divided the board
concerns u.s. person queries. the particular concern has been raised about u.s. person queries by the fbi. i would like to address that for a moment. at the fbi typical early investigation is to declare the fbi database to see what they know. they do not distinguish between u.s. persons and others because nationalities is normally irrelevant to a criminal investigation. if it contains a subset of the information collected under 702, though none of the data collected upstream so none of the about communication that mre the database along with other databases, even if the crime be investigated is not related national security. however, it is a extremely unlikely that a query in a non-national security will hit on 702 data. someone suggested requiring. someone suggested recording the fbi to get court approval before collecting an investigation of a non-national security crime. the board to not recommend this approach and i think it would be a mistake.
if the interest of time i'll mention a few reasons why. require an additional approval would be a step toward redirecting the share while that the government has worked so hard to tear down since 911. investigator looking into non-national security crime it would likely not expect to find a connection was 72 information. if information. if such a connection existed it would be important to know. the pi procedure should not limit queries in a way that would prevent the government from discovering these potential connections. women should be placed not on queries of information but on the use of that information. the law should and does if it is responsive to a query. this includes for example, amazon who can be responsive information, high-level repairable requirements before the information can be used in any criminal proceeding. and notice to a defendant if the communications are used against him. i believe these protections strike the balance between getting the benefit of the information of importance
information collected and protecting the interest of those whose communications are collected. thank you. i look what your questions. >> went to ask, based on your experience serving government, what else can you tell us in this unclassified setting about the value of seven oh two surveillance and how it is been used and how would it affect our intelligence capability of congress failed to reauthorize? >> thank you. i'll be brief and turn it over to mr. olson was more current information since he recently left government. i was the homeland security advisor in 2008 when the vice amendment act was passed. at that point, as you recall the intelligence committee was already collecting surveillance intelligence to the protect
america act which is the stopgap app application. you can see at that point the richness of the information i was coming into the reporting i got got up to the white house. it was, you could tell it was a major step forward. as i mentioned in my remarks earlier, that is critical, it's a critical remedy for the problem that arose with the changing technologies over the time between 1978 and one vice amendment act was passed in 2008. if we're to go back to that point we would be back in the same situation where we have too many surveillances that are critical to carry out and not enough manpower to do individualized orders for to do individualize orders for each of them. >> mr. olson. >> essentially agree, i was in the justice department before the fisa amendment act was passed.
we were at that point's having a very hard time keeping up with the number of terrorist targets that we're trying to attract who are not u.s. persons were located overseas. we're sticking into the latch warrants for the system was overwhelmed with the effort to try to get individualize probable cause warrants to those who are not entitled to fourth amendment protections. the fisa amendment act change that and consistent with the constitution to go back to that, especially in the current threat environment which i am confident would overwhelm executive branch. i will say in terms of the value today, my last post as i mentioned i saw the value on a daily basis at faa reporting. it was typical for in the report to say this came from faa or seven oh two collection. and it cited 30 cases in their report based on their classified review of their ability to the classified information. thirty specific cases in which 702 was the catalyst that identified previously unknown terrorist operatives or plots.
that is 30 cases that they were able to say were otherwise unknown. >> about some people suggestion that we get judicial approval or a warrant before acquiring the database of seven oh two with a u.s. persons phone number e-mail, and your testimony a moment ago you mentioned one reason you thought it was not a good idea, are there other reasons that you can describe for us that in your view makes such requirements problematic? >> thank you thank you mr. chairman. i will mention two.
one is that i'm not sure for the protect privacy to do that. number two i'm not sure be workable. with respect to privacy, the query is a relatively unintrusive tool. it's less intrusive for the government to look at information it already has than to go out collect more formation about a person. but if you require judicial approval before query can be conducted the government will have to assemble a package for the fisa court which will require them to go get more information them to go get more information which means it would require more intrusive means to justify the less intrusive means and that seems backward. in terms of workability, as i said before, the fbi does not distinguish between u.s. person queries and others because is normally irrelevant. if an agent or analyst is doing a bank run investigation and they want to see with the fbi knows about someone they are not going to indicate whether as a u.s. person or not, because there's no reason to ask that question. it's not clear to me how you not clear to me how you could find a workable system of finding approval without requiring it for all queries. because of the fisa court process is cumbersome and time-consuming that would likely result in no queries which would result in 702 information and other investigations which i think would be a mistake. >> a follow-up for mr. weinstein and mr. olson, based on your experience of law-enforcement and the intelligence community, what with the operational effect be to subjecting these queries
to judicial approval? >> i agree with this brand. it is hard to predict, but it certainly the case having worked in national security division that it would mean it was slow down the process of simply searching for information that would be collected. the attorneys in the national security division's weathers fbi or an essay would have to compile applications to the courts. now in case that the court can move quickly and it's proven it can move quickly there's no doubt that it would become a more cumbersome and slow process in instances where i'm confident that agility and speed is critical. i think without really any gain from privacy perspective and the record that does not have any indication of abuse in terms of the current approach of allowing these agencies to conduct without judicial approval. >> go ahead.
>> thank you mr. chairman just had to that, just keep in mind that kind of requirement is not in place for let's say information collected incidentally communication under title iii which is the criminal statute. so it's a bit ironic that you would impose that requirement in the national security contacts were often you try to prevent something from happening like a terrorist attack. where speed is of the essence and that requires a criminal criminal context where speed is of less importance. >> senator leahy and then senator from texas i'm going to step out for just a minute. you to go ahead. >> thank you. i think everybody agrees that we want to keep the country say. i do appreciate numbers being tossed around here. i was worried about what's always behind the numbers that we heard from different issues
from the nsa. about 52 attacks wiretaps stops and then the numbers were always given until they testified in public in 522 became a dozen which became five which became part of one after the fact. suggested these are exactly the savior but i always worried about numbers that we were assured that americans privacy was protected because of the tough security majors nsa had. they were were not good enough to stop at 28-year-old from stealing all the information bringing it to china and russia, but otherwise they were very protective american rights. part of this worries me. i want us to be secured but i
also want, we can be very secure we put a tail in every single american and search every single american's computer and phone. none. none of us are suggesting that. but i worry that we do parts of that, so let me ask, why do you agree with the review group that congress should inquire a court order based on probable cause? >> thank you. i think to understand what is so disturbing about those searches you have to look at what comes before them. in order to fit its way into the
foreign intelligence exception as it's called with the fourth amendment and in order to avoid getting a warrant or getting in individual fisa order, the government has to certified to the fisa court not only that it is targeting a foreigner not an american, not only that it has a foreign intelligence purpose, but also that it is not doing any reverse targeting which means it has no intent to target any particular known american. then having american. then having made that certification as soon as the debt is obtained all three agencies can sort through the data looking for the communications of the very particular non-americans in which the government just disclaimed any interest. the fbi does not even need a foreign intelligence purpose to do it. the fbi can search for evidence in criminal cases that have no national security or foreign intelligence hook on it whatsoever. this is a bait and switch that undermines the spirit, if not the letter of the reverse targeting prohibition. more important it undermines the purpose of that prohibition which is to ensure that section 702 does not become an and run around run around the fourth amendment's requirement and round the fisa individual order requirement when an american
there's a target. the presidents review group on intelligence communication technology which included a former deputy director, and acting director of the cia, former chief counterterrorism advisor to president george w. bush, recommended a warrant to search american's communication. they were not trying to rebuild the wall, they were trying to protect americans for warrant list surveillance. that is what close in the back doors about. >> somewhat argue that we shouldn't worry because section seven oh two programs are minimization procedures and limit the use of retention and information. so i i would ask both of you answer, you believe the current minimization procedures ensure the data about
americans is is that it deleted. is is that enough? it calls for the deletion of information upon the discovery to determine whether it has any foreign intelligence value. with the board's report found that information is never deleted. it is just in the database for five years or sometimes longer. so the minimization does not really address privacy concerns again where there has been no warrant at all in the process and when the government shifts its attention from the non-us
person to americans communication there should be court approval and that exchange. as mentioned earlier in title iii that has been a work before the parishioners collected. we can't we people emails and listen to their phone calls without court approval. the same should be true when the government shifts their attention to americans under the program. >> to go with that? >> i do agree with that. i. i think there's an idea that if the government has collected information lawfully should be able to use it for any legitimate government purpose. whatever that may have another context, it is clearly not the case with section seven oh two because congress has required minimization. minimization is the opposite that you can use it for any purpose you want. constitutionally's not the is not the case either because reasonableness inquiry includes an assessment of whether the safeguards on americans in our system. >> thank you. >> think of her being here. i'm actually encourage that everyone on the panel, including people sitting appear agreed that targeting foreign intelligence sources using seven oh two has been not only demonstrate his constitutional but also effective. we will somehow limit ourselves
to foreign intelligence in a way that could make us less safe? that's an important conversation to have. but i'm pretty clear of where i come down. the concern is of course with what is happening in syria. with the growth of the of islamic state or whatever you want to call them, with the meltdown in libya where you are seeing pathway of foreign fighters now making their way into europe where course they don't need a passport to travel among various member states of the european union. many of those countries have that visa waiver programs with the united states whether people can gain access to the united states or whether they can just in the case of san bernadino radicalized people in place. >> ..
the impact on american citizens come although, the fact of the matter is, as i understand it, the only american citizens who will be impacted by this process without a court order will be those who are communicating with a known terrorist target overseas. now, that is not exactly an innocuous purpose, it seems to me. i wonder briefly if you could talk more about what efforts have been built into this program to minimize the breath of the sweep of this program in a way that would
otherwise pick up american citizen communications in a way that really frankly the intelligence community could care less about. >> thank you, senator. one of the hallmarks of the legislation is that all three branches of government play a role in ensuring the laws implemented in a way that protects privacy and civil liberties. the executive branch is on the front lines. the court plays a robust role. i can tell you that it is -- the court is not a rubbera rubberstamp. it is aggressive and assertive and its oversight. with respect to particular to us persons information on the minimization procedure
the exact opinion that judge hogan reached last fall and a case that was declassified recently, an 80 page opinion finding that the government's recent certification was constitutional and complied with law and in particular that the use of fbi queries of 702 was also consistent with the law and the constitution. >> under the 4th amendment the issue is whether the searches reasonable. >> yes. >> some people are suggesting there is some outright prohibition here, but under the protective mechanisms, as you say, built into the statutes the courts have upheld access to communication by an american citizen with someone whom we know is a target for foreign intelligence purposes. i know this was not meant seriously, but he mentioned sweeping up love letters. my staff tells me that there is a significant case
recently where terms like wedding cake and marriage were used as codewords that the terrorists used to plot attacks against the united states. is that something that you can talk to us about? >> certainly it was a key case that the government referred to. >> in our zeal to protect love letters we don't want to protect terrorists who use codewords that might otherwise escape scrutiny by the intelligence committee. >> give a brief example, hypothetical, to foreign terrorist targets in syria communicating with each other. say they share a passport photo of an american. that would be viewed by the nsa and the collection under 702. that could be innocent, just
two people sharing a photoa photo of somebody that they know. it would be a significant interest. surge 702 quickly he might not be probable cause to do that that that would be within the statute. >> we talked about the law but when law enforcement and intelligence and probable cause. prosecution under the 4th amendment were american citizens rights in the bill of rights has to be protected by court order.
terrorists do not have protection of 4th amendment, nor is probable cause required to get that information which is a point we need to continue to hammer home because people are confused. >> thank you very much, mr. chairman, and thank you for holding this hearing because it gives us an advance on the hearings that will be held certainly next year, and so i very much and want to commend those who serve. it is good to see you again and thank you so much for your service. as a long-term member of the intelligence committee about 15 years now we see the value of this program frequently. the problem is that the government has been reluctant to declassify sufficient numbers of cases so that the public gets an understanding of the value of the program, and that case has been used in the 215 situation, used
intensively in the 702 situation. for anyone that is listening, it is really important to declassify more of these to show the value of this program, those of us that meet two afternoons a week see the value of the program. maintaining constitutional guarantees. unclassified report on the ability to query section 702 using us personal identifiers has an essential national security tool, and i would like to read aa couple of things and then ask if you will comment on them. and he is talking about
using a us person identifier and saying that it would impede and in some cases preclude the intelligence committee's ability to protect the nation against international terrorism and other threats, and then he discusses that such a requirement is not required by the 4th amendment, it would be impractical, and it impractical, and it is rare the intelligence community begins an investigation already having developed probable cause, and i believe that has been said by one of our witnesses. i would like to ask mr. medellin and others to comment on the text of your recommendation, there are 22. many have already been accepted by the government. but the one i'm curious about is on page 16,
recommendation two, updating the fbi minimization procedures to accurately reflect the bureaus query of 702 data for non- foreign intelligence matters and place additional limits on the fbi's use of section 02 data in such matters. would you comment on that please? >> thank you, senator. one of the things discovered in the investigation was, our brand indicated that the fbi routinely looks into 702 databases, and not just investigations what assessments when the fbi has no suspicion of wrongdoing but they are entitled to poke around and nonetheless access to query the database, but the minimization procedures were not transparent about that process. >> are you saying there is belief that there should be a fisa board approval prior
to querying? >> the majority did not support approval but the judge and i, a member of the board and i dissented. >> please put because this is going to come up, please put before this body both sides of the question. >> sure. on the side of having a query, as i mentioned earlier, under the 4th amendment the government is now accessing american personal communication. this program does not just target terrorists. it might be a different situation if that was the case. this is anyone with foreign intelligence value, and innocent businessmen or anyone in or out of country. we have an american talking to someone who is potentially innocent of
wrongdoing and can capture the american communication, love letter, business transaction, but all are being captured. when we shift attention there should be court approval. >> i want to hear the other side of the question. >> thank you, sen. it is important to keep in mind when you are talking about the fbi and queries of 702 data you must keep in mind the scope. the pi does not get upstream data. there are two aspects come as you now. upstream is more concerning from a privacy stand peemack. the fbi point. the fbi does not get that data. they get a subset. now, when concerns are raised about queries, the concern is not raised about querying international security investigation because everyone seems to agree you want to be able
to. but querying that in other investigations. >> when we were doing our report inand discussing this issue with the fbi, they were not able to give us an example of that ever having happened. it is at the least extremely unlikely, and the judge referred to the possibility is remote if not entirely fierce. it's unlikely to come back in a criminal investigation, but as i said, if there is a connection, you wanted to be discoverable. >> thank you. thank you. >> senator tillis. >> mr. chair. i was glad to hear about the value of this program. many of us not on intelligence would have. it is important to understand why it is a useful and important tool. back to the point about declassification, some of
the apprehension can relate to other bad actors reverse engineering how they can avoid detection if they know what patterns are used to identify and for the other events. it is not just merely because they want to keep them private. there are legitimate, future risks that can result in how this was triangulated. is that correct? >> that is exactly right. the ability to understand how they collect this information. >> and i want to go back to the last question because in your opening comments he talked about the irony of requiring a court order before you get access to the data actually requiring more information be captured
before you move forward. can you talk about that? it also speaks to the elongation of the process of the investigation. while the courts can move reasonably quickly, there is time associated with gathering that information. >> sure, and then i will handed off. in general investigations progress from using less intrusive means to more intrusive means. you may just have a tip and want to figure out whether to pursue the tip or not do anything. you will start by doing a query of databases. then as as the investigation proceeds you may develop enough information to set aside a probable cause requirement for research staff, but at the initial stages you typically do not have much information which is why you do it query.
to require the government to compile more information in order to start with a less intrusive means does not make sense to me. >> thank you, senator. i just want to address the speed issue. mr. olson and i have been through aa number of different threat investigations. there's an indication of a threat, and at that point yacht the intelligence community operators to get access immediately to every area that there might be relevant information, and while the court acts quickly, the process of having to put together that information not only being more intrusive, it just takes time. that can be absolutely critical in a hot threat investigation. >> would you mind if i speak to the privacy issue. i would hope this committee would take note of the fact that the privacy committee unanimously behind the requirement because it is
our considered opinion that this is far more protective of privacy to require a warrant than to allow the data being carried. >> are you aware of examples to this point where it will be likely that the warrant would be denied? i am trying to find -- and here is the reason i am concerned. we are in an environment where the number and severity of threats are at an all-time high, and so time is not only a consideration, but resources. so i am trying to figure out, i understand your concern and them sympathetic, but the question is, have we seen this necessarily produce a systemic risk that has resulted in legitimate violations of someone's 4th amendment rights? >> the search itself is the
violation. another was no evidence of abuse. backdoor searches are the abuse. it is a warrantless search of information gathered based on the representation that the government was not targeting americans. >> this is a search of data that the government is already in possession of. >> required by law and the 4th amendment to minimize the use and access to us persons information. >> and i had a question for you in my remaining time. in your opening comments, did i understand you to say that it did not necessarily recommend related action but there were additional changes? with that suggests than that the acts are sufficient? >> the board only recommended administrative changes.
the government has been responsive. one of the other board members did dissent and recommend the court approval. on the classification front, one of the things the board experienced in repairing the purport is we found facts that we thought could be made public without harming national security and at a positive dialogue, the results of which, a hundred fax in our report previously classified intelligence committee felt could be declassified. >> thank you. >> may i know which report is it back is that the recommendation assessment report you are thinking of? >> it is an almost 200 page report, and we were able to have greater transparency. >> it would be valuable to add documents to the record.
>> without objection. >> i am ranking. i would yield. >> thank you, chairman. first, welcome to the committee. we are on adverse sides of a considerable number of issues during the bush administration. he was always an entirely honest and honorable broker and we worked well together, and it is nice to see you back before the committee. you mentioned the comparison between incidental collection under 4th amendment searches and under the 702 program. of course, if you go back to the earliest days of the warrant requirement, when
someone had aa search warrant and was able to go into somebody's desk and search their papers with that warrant, the papers were not just their papers. they are papers were notes that they made about letters out and also letters and, and so there was incidental collection of people who were not the subject of the search warrant from the earliest days of the republic. when we got into wiretapping it became a little more complicated, but once again you cannot listen into the conversations of a mobster without listening into the other side of that conversation. so wiretaps over and over again engaged in incidental communication. so there is nothing new about incidental collection of people who are not the subject of the investigation in question. it strikes me that what is new is the creation of a