Skip to main content

tv   Hearing on USA Freedom Act Reauthorization  CSPAN  November 10, 2019 10:35am-12:40pm EST

10:35 am
order. >> for 40 years, c-span has been beening america -- providing america unfiltered coverage of public policy events from washington, d.c. and around the country so you can make up your own mind. created by cable in 1979, c-span is brought to you by your local cable or satellite provider. c-span -- your unfiltered view of government. >> follow the house impeachment inquiry and the administration's response on c-span. tv,ltered coverage live on our radio app, and online. watch on c-span or stream any time underline -- online at c-span.org/impeachment. acthe 2015 usa freedom banned the bulk collection of
10:36 am
private records. the senate judiciary committee held a hearing on reauthorizing the legislation. among the witnesses were officials from the fbi and nsa. this is two hours. >> the hearing will come to order, thank you all very much. i'm sorry emily. today will have a hearing about reauthorizing the freedom act of 2015. need these for tools and why we need to reauthorize the program in your view. what happens if we don't, would you accept any changes, what with those changes be and reset
10:37 am
your testimony, i'm very interested in hearing from the national security perspective of how the usa freedom act of 2015 is still relevant in 2019 and beyond and the tools available to law enforcement in the intelligence community provided by this act, how the relevant to the side were still in. baghdadi is dead but the calls live, the effort to penetrate our country's ongoing everyday, terrorist groups with a lot of different names are quid pro quo to come here to do us harm to hurt americans abroad in the war is far from over. i wish it were but it is not. there is no air force to shoot down, no navy to sink, no capital to conquer, this is ideology that must be combated and let's embrace this ideology, embrace death so the only way to protect america is to hit them before they hit you stop them over there before they get here. the only way to do that is to find out what they're up to.
10:38 am
using acceptable tools within our constitutional democracy and without alternate over to feinstein. >> thinks mr. chairman. alternate be redundant but i think it's important because it provides an opportunity to take a good look at provisions of the usa freedom act that are set to expire at the end of this year on december 15. these are section 215, otherwise known as the business records that provision as well as walker's top authority in lone wolf provision. this committee actually played a key role in establishing and modifying these authorities. so i think it's really important that we weigh in from time to time on any legislative changes that might be needed. i wanted to focus a few remarks on section 215 which allows the government to require a
10:39 am
third-party such as phone companies to produce business records, 215 was previously used by the national security agency to conceal hundreds of millions of domestic phone records, congress prohibited this collection in the 2015 usa freedom act, introduced by senator lahey and lee. now, instead of book collection by the government, records remain with phone providers and are searchable only with the pfizer order for a specific selection term". and that is generally a specific phone number or address. this call detail record which we call a cdr is meant to ensure that surveillance is sufficiently targeted. but, in june of 2018 nsa publicly announced that do to
10:40 am
technical irregularity, the cdr program had received data that it was not legally authorized to receive. moreover the agency could no longer distinguish between records that were obtained lawfully and those that were obtained unlawfully. as a result, innocent announced to delete all called detail records required over the last three years. in august, the director of national intelligence confirmed that nsa had suspended the cdr program indefinitely do to the lack of intelligence value as well as cost and compliance issues. despite this, the ministration is acceding congress to permanently authorize this program. it is not clear to me why a program with limited
10:41 am
intelligence value and clear compliance problems should be reauthorize. and unless there is good reason to believe that it should, i do not believe we should reauthorizing. thank you very much. >> our first panel is brad, deputy assistant, mass security division. deputy assistant director of counterterrorism action, susan morgan from the national security agency. >> chairman graham, ranking member feinstein and ricky members of the committee, thank you letting me testify for the foreign intelligence surveillance act or fisa. these are authorities that will expire at the end of this year unless reauthorize by congress. the administration strongly supports permanent reauthorization's of these provisions. three of the authorities, business records, lone wolf provisions have been part of pfizer for over a decade.
10:42 am
they been renewed by congo smokable times most recently in the freedom act of 2015 but before that the same authorities were reauthorize multiple times between 2005 and 2011 in each renewal gained bipartisan support. today am going to give you a brief overview of three of the authorities and then i'll turn over to my colleagues to address how they been used in practice and national secured. the mcauley from the nsa will address the cdr authority that senator feinstein described in targeted collections of data counterterrorism investigation. >> first the wiretap authority pre-this enables the government to continue surveilling a pfizer court approved national security target when the target takes affirmative steps toward surveillance. these individuals who rapidly and repeatedly change communication service providers in order to invade government monitoring. the provision allows us to continue surveillance without having to go back to the fisa court for new order each time the target is found.
10:43 am
the government has uses authority in a small number of cases each year. these cases tend to involve highly trained foreign intelligence officers operating within the united states to use these techniques for other targets including terrorism targets. the wiretap act has for decades contained a similar provision with ordinary criminal investigations let's say a drug dealer or organized crime figures who may take steps toward surveillance. second, the business record authority. this allows the government to apply for the pfizer court in order to collect records, papers and other documents that are relevant to an authorized national security investigation. it allows the government to obtain many of the same types of records that it can obtain a grand jury subpoena and ordinary case. for exhibit, it can be used to obtain driver's license records, hotel records, car rental records, shipping records, and
10:44 am
the like. in most cases, these are records the government obtains in ordinary criminal civil investigation without any court order. the pfizer business record because national security interest include the use of criminal authorities were because there's no criminal investigation underway and something that is purely an intelligence matter. this authority has been used several dozen times a year on average over the last few years. the business record provision is also the mechanism for the targeted collection of cdr's from u.s. telecommunications service provider, mcauley from an essay will discuss in a few minutes this provision provides a way for the government for a pfizer court order to identify telephone contacts of suspected terrorist within the united states. finally, we have the lone wolf provision. this enables the government to surveilled a foreign person who is engaged in international terrorism who lacks connections to terro it also applies to foreign persons engaged international
10:45 am
of master structure. the government has not had encased to use alone will authority today but the government collection capably where they are concerned. for the surveillance of a foreign terrorist who might be inspired by foreign terrorist group but who is not technically an agent of that group. so for an example, it would allow surveillance of a foreign person who self radicalized the propaganda on it the internet. or known international terrorist who severs his connection with the foreign terrorist group. the use of any of this authority describe today requires approval from the pfizer group and understand they have described in law. each requires strict rules governing the information as is obtain to u.s. persons. each of them is subject to extensive oversight as well as reporting requirements. as i said each is been renewed by congress multiple times in the past. alternate over to my colleagues.
10:46 am
>> good morning chairman graham, ranking member feinstein and members of committee. thank you for the opportunity to testify today with the provisions of the freedom act that will expire later the share unless reauthorize by congress. these provisions in many national security investigations. i will likely not be able to get to specific examples of our provisions in an open setting, i will do my best with situations which demonstrate the critical role these tools play and national security investigations. i have seen these provisions throughout my time at the counterintelligence agent and i'm looking forward to answering your questions today. national security threats have evolved significantly in the last 20 years from the perforation of smart phones to the expanding use of encryption, new technology has allowed actors who are in the shadows.
10:47 am
today, we have nearly universal access to the internet and anyone with a cell phone can view and become radicalized by extremist content. our subjects are no longer forced to travel to other countries to communicate with other extremist with the security of the united states. instead they can do this from the home. because of this, we have a shift with individuals acting alone with multiple ideology with clear ties to anyone for an adversary. the identification and destruction is shrinking. as these have evolved congress has helped us ensure we prepared with the appropriate tools to protect the u.s. in its interest. i'm here to talk about the expire provisions, what the fbi uses with fisa court oversight. as my colleague from the department of justice explains, we use the business record provision to obtain records for other things for use the national security investigation. we often describe the business records as a billing block authority. that means we use it during the
10:48 am
early stages of the investigation to build a case against national security threats. it's important to note the response of business record orders do not contain content. the information we get for business record helps us meet the legal threshold needed to get an order from the pfizer court with a more advanced technique such as wiretap. for example, once we receive business record returns if the suspected terrorist is communicating with a known bomb maker would have relevant information to establish probable cause for a wiretap. similarly if we receive business record return showing the suspected terraces buying bomb making material like fertilizer and ball bearings, that information can also help us establish probable cause. the relevant authority details that usa freedom act is an import provision that counteracts efforts by security threats including terrorist and intelligence officers to avoid court authorized surveillance.
10:49 am
these have tactics that are creating new e-mail account. without this authority, it was struggle to maintain awareness and take action toward surveillance. the use of the national security investigation is a tool to avoid missing critical intelligence that would be lost with our ability with delayed to obtain pfizer weren't on our facility. the last authority the fbi request reauthorize the lone wolf provision. it has not yet been used, we believe it's critical try national security toolkit, extremist armand fbi top threat to the homeland. these individuals by definition not with the foreign terrorist organization. extremist are self regular christ online to tears propaganda and motivated to attack with no direction from individuals associated with foreign terrorist organization.
10:50 am
rest assured, the lone wolf provision is narrowly terror alert as against non-us persons. these authorities are critically important to keep the market public safe. the fbi urges congress to reauthorize these authorities because were confident they will continue to play a role in the fbi security investigation as our adversaries continue to advance. thank you for the opportunity to appear before today, i'm happy to answer any questions related to these authorities. >> chairman, ranking member, distinguished members of the committee, thank you for the opportunity to testify today about the national security agencies hold detailed records program. the authority for the call detail records or cdr program is among the important provisions of foreign intelligence surveillance act that will expire at the end of the year, this year unless reauthorize by congress.
10:51 am
congress added this authority to the foreign intelligence surveillance act four years ago in the usa freedom act as one of several significant reforms to enhance privacy and civil liberty. it replaced an essay with the new legal authority whereby the book mega data would remain the service provider. as this committee, 2015 report described the cdr authority provides a narrowly terror mechanism for the targeted collection of mated data for possible connection between foreign powers or agents of foreign powers as part of an authorized investigation to protect against international terrorism. critically, the provision authorizes the collection of metadata associated with telephone calls such as the originating or terminating in the date and time of a call but does not authorize collecting
10:52 am
the content of any communicati communication, the name, address or financial information of a subscriber or customer or locational information. as this committee is aware, the nsa recently discontinued the cdr program and to lead the record under the cdr authority after balancing the programs intelligence value associated cost and complaints and data integrity confirmed. nsa decision to dispense the program does not mean that congress should allow the cdr authority to expire. rather, that decision shows the executive branch is a responsible steward of the authority congress affords it. as technology changes, our adversaries tradecraft and communication habits continue to evolve and adapt. in light of this dynamic environment, and is a support reauthorization of the cdr
10:53 am
provision so that the government will retain the valuable tool should it prove useful in the future. thank you again for the opportunity to testify today, i look forward to your questions. >> senator leahy would you like to make another statement. >> i would. i appreciate that. i was proud to join senator lee and requesting this hearing. i think i speak for both senator lee and myself and thank you for holding this hearing. i'm proud of our successful efforts in 2015 to pass usa freedom act, this is the first overhaul in government surveillance powers in decades. it had a significant privacy protection for the american people. now we know we have the opportunity to learn, assess, respond to what has happened
10:54 am
over the past four years. it's where we learn. we know that the government issued only 13 cdr program orders in 2018. but, they collect over 434 million records relating to over 19 million phone calls. there's two incidents of overclocked and the result in the nsa purging all the record and decommission the program. we know the director dan acknowledged even as they requested a program of reauthorization all the authorities granted usa freedom, the cdr program relative intelligence value was negligent. given all that, what don't we know, virtually quite a bit.
10:55 am
were only a month away for these it to expire and we don't know what caused the over collection, one company was responsible or white was not feasible to the nsa to identify or isolate them properly produce. it's not as though senator lee and i try to answer these questions, our questions prior to nature where we try to make sure that this was not a republican or democrat initially, it was an issue that the united states did not care about. almost a year ago in december, 2018, senator lee and i wrote a letter to dni and justice department asking these and other questions. we still have not got a response. so almost seven months later in july we wrote again. unfortunately we never got a
10:56 am
response to either of these letters. despite this, despite not answering our questions, the government is now requesting the permanent of reauthorization of all the authorities granted including the cdr program and they argue, it might eventually be useful in technology might a ball to collect data and complaints with the law. we might be able to obey the law. let me be clear, maybe someday it'll be of some use, hopefully will develop technologies to not again violate the law but that's not appropriate justification to reauthorize. to reauthorize and maybe we can actually follow the law. if some point in the future the technology comes to allow data collection is following the rules, fear and come back to congress and let us revisit the
10:57 am
question. until that time, there is no reason to reauthorize the cdr program and we can be legislating in the dark. so mr. chairman i thank you for holding this hearing, i look forward to the testimony but, let's not say, let's not pass a wish, let's have legislation and again, i think you and i think senator lee who is worked extremely hard on this. >> thinking. ms. morgan. >> why did you not answer the letters? >> sir,. >> did you get the letters? >> my understanding is that the letters were addressed to d.o.j. and the od&i -- >> wrong person. >> i can address. >> there addressed to the doctor
10:58 am
and attorney general, let me say up front, my apologies, for not being able to respond to the letters this far. my understanding is they were held up originally so the ministration can develop a position on whether to seek reauthorization pay the hobbit in august of this year so significant portion of the delay was due to the administration developing a position. -- my apologies,. >> this is november. >> absolutely,. >> so you had time from august to november. >> we have a draft response to letters, you will have it this week, i was hoping it can bring it today but you have it this week without fail. were here to answer your questions, i'm happy to address the questions that really raised in the letter between the three of us. all i can do is apologize for not have gotten those to you. >> there will be an answer to the letter this week?
10:59 am
>> absolutely. >> i know it's not my turn, i want to interject, if it takes 11 months to get a response to the letter and if it takes nearly more than six months to even get the policy out in self did not answer the questions which was apparently the condition president or your ability to issue the letter, you stop many months past between issue the policy in today. perhaps mr. chairman, the only way to do this is for us to have on the hearings so we can stay in contact on this. and i say that in dead seriousness. were not messing around here. these are the privacy rights of the constitutional rights of the iraqi people, we represent them, and we don't appreciate, nearly one year delay that is not warranted and adds deeply to my suspicion and i appreciate senator leahy working with me on this and mr. chairman i appreciate you helping us get this hearing which i hope will be a monthly exercise from now on. >> there is no good reason not
11:00 am
to answer letters by two senators who have offered legislation change the program. having said that, the lone wolf provision, what do we lose if it goes away? in real-world terms? >> sir, this past year we arrested approximately 100 terrorism suspects. we are seeing more of the homegrown violent extremists or individuals who are not taking direction -- >> we have never actually uses provision is that correct? >> today we been able without it orbit able -- >> can you speak up a little bit. >> directly into the mic. >> the threat is evolving and we may have a need for in the future -- >> people fall into space where you can't get a warrant but something is going on. >> gas and the way the threats are evolving, there will be
11:01 am
more. >> more of those are self radicalized and taking direction and therefore the potential for us to use the tool probably will be increased in the future. >> so this is driven where the self radicalized -- self radicalized non-us citizens and i would also say the foreign terrorist organization are also involved in the capabilities and seek to use clean operatives that we may not be able to tie directly to them. >> the surveillance parts makes common sense. if they change technology you have to start all over again. >> has to do when were surveilling them in their changing the technology. >> i'm good on that. so the business record, how is that used and what would you lose if a one-way. >> we use as a bully buck tool, for example, a home phone extremists start to mobilize, often times they seek weapons such as knives, rent vehicles, the business record gives us the ability to get the sales records
11:02 am
so we could disrupt them faster. if we would lose the authority, the tangible things reduced to a few items that we can seek and the standard would increase that we would have to show beyond relevant that is strictly related to a foreign power. >> ms. morgan, about the phone call monitoring for lack of a better cdr or whatever you call it, why should we reauthorize if you shut it down questioning. >> thank you for your question. as we mentioned earlier as a committee mention, it was carefully tailored balanced between liberties and national security of the counterterrorism context. we use this authority responsibly and have been transparent with all three branches of government in terms of how we use the authority and the challenges that we face. the authorities granted to us by the congress are really a set of tools in a toolbox that we can use and leverage --
11:03 am
>> this is a technological problem that you have questioning. >> i'm sorry. >> you shut the program down for reasons. >> we shut the program down because when we look at the value we were getting -- >> did you have a technological problem that technology is not where it needs to be? >> the challenges that we face of this program -- >> did you shut down the program because the value is less than the cost? you want us to reauthorize it. >> when we look at a program we try to look at them in the context of what's available in terms of the different tools in our toolbox, when we look at this program there was value but it did not outweigh the cost for the responsible thing to do was to stop using the program -- >> why is it responsible for us to reauthorize? >> at tickets responsible for you to consider reauthorizing because one year from now, two years from now, three years from now i can't predict what the national terrorism environment will look like and i cannot predict what the telecommunication is going to look like. we could find ourselves in a
11:04 am
situation where this particular tool and a toolbox would want to have the agility to use it and should be fallible moving forward. >> let me just carry this out, the call detail record program with the successor under 215 was recently shut down by nsa due to lack of intelligence value cost and technical problems. can nsa provide an example of information obtained from the cdr program that results in discovery of a previously unknown terrorist plot? >> ma'am, thank you for your question. >> the answer is yes or no. >> ma'am, an open setting i cannot answer that in a yes or no -- >> i'm not asking you for any detail, all i'm asking is, has
11:05 am
there been a result in the discovery of a previously unknown terrorist plot, yes or no. >> ma'am, i apologize but i cannot give you a yes or no answer to that -- i'm happy in a close setting to give you any details you need to make an informed policy. >> you want the program to be reauthorized in a bit on the intelligence committee for a long time, we have to have a reason to reauthorize. >> yes, ma'am. >> the reason is, is there a product? >> i believe the reason to reauthorize when we look at the international terror threat it evolves over time as does technology. and we like to have the agility in place so if this authority can provide value in a different context and a different way within the confines of the law, that we would have that tool on the shelf for our use. >> can you give any specific example of its help?
11:06 am
>> ma'am, and at open unclassified setting -- >> , on. does it help? >> there has been value to the program certainly over the past -- >> what the value. >> searches speak specifics i'd have to do that in a classified session which are more than willing to do at your convenience. >> that's inadequate, i been on the intelligence committee for 26 years now, but were in a public arena, and understand that. but if you cannot give us any indication of specific value of the program, there is no reason for us to reauthorize it. >> were not asking for any specific disclosures if i understand were asking how we ever won anything through this? you can answer that question in public. that's a really tough position.
11:07 am
>> i will go to the hall right now. >> i'm in a different position. then senator leahy and lee, defender of your program but i also agree if you can answer when we go right now. >> why don't we just go ahead and do it. let's get to the other part the mohammed classified. >> that's a better idea. [inaudible] >> this is an open session, only one occasion when the phone records was valuable. one. >> will go to a classified session. >> go-ahead senator feinstein. >> so you can't provide an example of information obtained from the cdr program, if
11:08 am
congress re-authorizes section 215 business records provision against the cdr program, call detail records with the administration support that? >> ma'am, as you know i'm here representing nsa, i don't make policy decisions for the administration side have to differ -- >> nsa received three years worth of american phone records that it was not legally authorized to receive, moreover the cdr program was shut down for failure to produce useful intelligence. yet nsa is requesting reauthorization, can you explain that position. >> ma'am, i'd like to clarify highly possible i'm not being quick, i apologize. there was value in the program when it was instantiated. we did take value from an
11:09 am
intelligence perspective. however, when we way that against the cost we have a decision that the best take was to shutdown the program. there has been issues with some of the data we received from the different tillich medication providers and i can go into those issues in detail. >> has the compliance problems been solved? enter on the record. >> the compliance problems associated with this program have been solved as the program is shut down. >> so the program was shut down is that correct? >> yes, ma'am. >> -- what was the reason that the program was shut down?
11:10 am
>> ma'am the reason the program was shut down we evaluated the program in terms of what value we were receiving from the program and there was value, when we way that gets the cost of the program, the resources cost and took a look at the issues we are facing from a compliance and dignity perspective and take into account what the other authorities bring to counterterrorism site and we ultimately made the decision in that context to stop using the program. >> okay thank you. >> this would be any of the three of you, why is the reauthorization preferable to the most controversial provisions of the law, i suppose your concentrated on amending the most controversial provisions of the law. >> sir i'm assuming that where the most controversial provision of the law. what i would say, we support the administration position of a clean reauthorization and one reason so we have agility but have tools in our toolbox.
11:11 am
the counterterrorism fight as i'm sure you're aware of olives overtime. so if we come across a situation where we think this authority can give us the tools to help see the international terrorism picture, we want to be able to move as quickly as we can to leverage the authority and that is why were supportive of a clean reauthorization. >> to speak to the other authorities, from my perspective of d.o.j., this is the fourth time the other authorities have been reauthorize, that does not count other ones that were done. again this is a decision for the committee and the congress but eventually the idea that you become comfortable with the basic authorities and this point they been reauthorize to many times over the last 20 years our view was at some point the congress should decide that they're comfortable but were obvious and we differed to the committee if they want to continue having
11:12 am
reauthorization's with these of been reauthorized on at least four occasions. >> was so you can't legislate everything in detail, but you folks have heard about the privacy and civil liberty concerns, what are you doing to address those concerns on a daily basis as they come up? because that's what we had to be satisfied on. >> i don't know what the privacy concerns are with the robing example, i think it's straightforward authority, entertain and no significant privacy concerns or controversies associated with that. it should not be a problem, the ordinary use of the business record authority are things that you can get with the subpoena in ordinary criminal case, more process and the national case, significantly going to the court and all the oversight increment on matters. i don't think the ordinary use of these authority should be controversial and raise concern. >> is the law effective in carrying out the use of powers of the authorities being
11:13 am
considered today, if not explain what changes are necessary. >> again, we don't think changes are necessary, the authorities are appropriate as a student today. >> i yield back my time. >> including the cdr think? >> i'll let nsa talk about the cdr program. >> who is next. >> senator whitehouse. >> i would like to think the chair, the ranking in the witnesses for your testimony on the service truck country. this is a critical opportunity to discuss how to balance our responsibility for keeping americans safe while also protecting the core protections of our constitution and our civil liberties that are fundamental to our democracy. in your testimony you emphasize that the nsa decision to discontinue the cdr program is
11:14 am
based on balancing the programs intelligence value associated cost and compliance data integrity concerns. what matrix does nsa used to determine the intelligence val value? >> thank you for your question, there's a number of factors we take into consideration looking at the value of a particular program. one would be are we issuing any foreign intelligence reports that contain information from a particular program. as a committee likely knows, nsa gets intelligence requirements from different agency partners from policymakers and we find intelligence valuable enough to take the effort and the product. >> did you? >> yes or. >> so the character eye charactf massive over collection, you would argue at least without metric there was value. >> yes, sir.
11:15 am
>> another thing that would be hopeful to understand, we were fighting the counterterrorism or using different authority to get different pieces of information and were trying to connect the different dots. it's entirely certain that you might have information from one particular authority that in it of itself is not binary but now i have the client terrorism outcome. and that your building upon that in weeks, months even years later you have an outcome but you have to trace it back to the little piece of information that has a contribution. that's part of a broader picture. >> you discovered you improperly collected the database massive good. is it correct the nsa deleted all the cdr records? >> they deleted the cdr records we received from the providers. we were authorized to pertain records for your report.
11:16 am
>> is any indication the deletion of the records had interviewed with the counterterrorism? >> so i think that is something that is impossible to answer. every day were making trade-offs for example when i was an analyst, every day i say should i look at this piece of information, because you cannot look at everything, there's no way to know if i've lost a piece of information that could've been valuable. >> one of the arguments being made that they can medication landscape is changing and tough to predict where technology is going and there's new types of digital communication that bad actors might reach each other including encrypted messages. do records from encrypted messaging services fall under the scope of the business records or the cdr authority? >> the question is whether you can get things that are encrypted, is that the question
11:17 am
customer. >> yes. >> it cannot be used to get communication content encrypted or unencrypted. >> under the program that were currently the author writing, were authorized to get metadata, were not authorized to get any content, any encrypted reference. >> are you able to give reference about coded messages customer. >> so i'll say i'm going to look to him to correct me, my understanding in the law specific terms, were authorized to seek a permission from the fisa court related to a specific selection term so if there was a specific selection term and we got the authority and there were metadata records responsive to that, i believe we would be authorized to get that.
11:18 am
>> so the same thing, i think it's right of the cdr program as susan describes, also true for the ordinary business record authority, if we were to get a transactional record which is the use that we have for 215 which is made a data, the information is typically not encrypted. the message itself might be encrypted but the metadata whom committing wink who in the date et cetera, we can get that type of information. is not encrypted. >> let me ask you the last question. the privacy of oversight, they made a number of suggestions including expanding the types and trigger appeals. if implemented, what with impacted of those changes? >> so i'm not familiar with the recommendation, is it recent report? >> i believe so. i have not seen that, you mention one was appeals? >> broadening their capacity to
11:19 am
engage. >> i think the system is working pretty well, we had appointed have a dozen cases that provide value, benefit to the court and it's up to the court to decide if they want them to participate which i think is appropriate so the court can decide without benefit me to hear a different position or essentially routine matter where that's not necessary. i think leaving that with the court is a good idea. on appeals which you mention, we thought about this in 2015 to think about the appeal, there were constitutional issues in the not party to the case under article three so what we came up with in the current law is a certification mechanism whereby the court can certify the issue which is the fisa court of review. obviously they suggest to the court that on appeal is appropriate and they can have
11:20 am
that mechanism. in b constitutional issue of an appeal right. i don't know if that answers your question. >> let me follow up with you, i'm out of time but this is a procedural improvement that might be well considering. >> thank you. >> ms. morgan, your having to answer tough questions here today and you don't make this policy do? >> no, sir, we do not set policies. >> i don't know what you did to deserve the flogging that you get at the hearings like this because i know none of you are the policymakers. but let me ask, to me it sounds like the oversight provisions in the law actually worked in the case of these call records, let me go through that with you. the congress writes the foreign intelligence surveillance act
11:21 am
which provides authorization within the intelligence community has its own internal operating rules to comply with the law that congress has written. and then you have to apply to the foreign intelligence surveillance court, there is a judicial oversight and then there is the congressional committees, the intelligence committee in the house and senate particular that have oversight. did i get that correct? >> yes, sir in addition we have oversight from the executive branch in the form of d.o.j. and the national intelligence internal to the nsa we have a robust compliance program, inspector general and civil liberties reports to the national security agency. >> my point is, this is not a case where the fisa court caught you or congress there is oversight caught doing something actually do.
11:22 am
this is where your own internal procedures identified a problem, is that correct? >> yes or. the challenges we face when we receive records that have irregularities or self identified to the over fears and all three branches of government by the national security agency, we took steps to address those to resolve. >> again, this is foreign intelligence correct. >> sir, this particular program, the cbr program is focused on international terrorism. activities associated with national terrorism getting insight into the activities and putting together pieces of the puzzle help protect the country against international terrorist activity. >> the metadata, just to go through this again which is
11:23 am
commonly misunderstood, it's not content right? >> that is correct we do not receive any content in the data irregularity will be faces challenges and we did not receive any content or any locational information, subscriber information, voice medication messages of any kind, it's things like phone number at the sting time. >> i know this sounds repeat because estate over and over again, we talk about connecting the dock, that's what were talking about here. >> absolutely sir, the international terrorism fight you're dealing with people using different technologies, communicating in different ways, trying to hide communications anyone have the toolbox and agility because you don't know what you might see in the future. >> can you tell me whether the nsa undertaken the efforts to deal with the technical problems that are encountered with the cdr program or have you
11:24 am
suspended entirely. >> sir we've suspended the entirely intake and other infrastructure that supported the program as it wasn't substantiated. >> i think the legitimate questions on whether congress auto reauthorize, i hope chairman we authorize the other three pieces of this as referred from the attorney general and director that are essential law enforcement counterterrorism tools in this instant. but i think it would be helpful to have some additional classified testimony with regard to examples of where these tools have been useful, things that may be understandably cannot talk about here in public. and we certainly understand that. i don't want to be in a position of not reauthorizing something that might ultimately develop into the tool and continuing
11:25 am
changes in the strategy and tactics of terrorist and have a hearing like this after some of americans have been killed and wonder why didn't the nsa, widened the fbi, the department of justice do more. and congress is not particularly nimble when it comes to reauthorizing new laws so i think we ought to be very careful about letting this one lance. >> very good suggestion. senator lee. >> thank you mr. chairman. ms. morgan when he spoke to the house judiciary committee earlier this year, you declined to answer the cdr program materially contributed with terrorist attack. you said you stated and correct me if i have a strong, you believe the program value.
11:26 am
i don't find the answer sufficient, the freedom act four years ago. then nsa deputy director testified publicly on one occasion where the phone records collection was uniquely valuable in a counterterrorism case with the connection. we can release as much transparency as we had four years ago. to the passage of the usa freedom act on how many occasions, i'm not sure what they were but how many occasions was the cbr program materially significant in preventing a terrorist attack? >> five, ten, 25, 0. >> if i may just clarify something you mentioned about what i said about the house judiciary committee.
11:27 am
what i thought i said, i don't have a transcript of frenemy, prevent another terrorist attack is what one metric and one factor just to clear for that. i'm not saying that's not a valuable factor, i'm saying it's only one major. >> that's why i asked the question, how many has a cdr program preventing a terrorist attack. >> sir, again, i apologize, i recognize this is incredibly frustrating. at the time at this discussion were having right now, the information is classified and i'm unable -- >> not even a number? >> i'm not able to go into details in open session. i apologize. >> can you say weather is more than 0 question my. >> sir i'm really in comfortab comfortable. >> the deputy director testified there's only one occasion and that was 40 years ago.
11:28 am
>> in the summoner to contact, intelligence if it promotes section 702 is preventing attacks on the homeland and removing terrorist in the battlefield, they say that publicly. the nsa says the about section 702 and under section 215. [crowd boos] again, sir what i would say, and the seven into context it was made on classified and unclassified, i don't make those decisions but in this context the information you're asking is currently classified.
11:29 am
>> were gonna have to have a classified hearing. >> i promise we will. >> when the director of national intelligence in the time of august acknowledges a senior program relative intelligence program does not outweigh the cost, even by nsa matrix cdr program about sufficiently. value to be worthwhile is not what i should read? >> sir i would say i think you should read from that currently, the value does not outweigh the cost. >> thank you very much. these questions are directed at you personally, were destroyed to get information because we have to vote on these things. , how many times has cdr information been used in criminal investigations for
11:30 am
prosecution for the justice department? i'm not asking which case unmasking how many times. >> i'm aware of one. >> i am not aware of any. >> thank you bring. >> during the house judiciary committee, when the doorbell from the home security company rings could be obtained with a section 215 order, you said you believe so but you have to check that and confirm. that was a couple of months ago. so now i ask you two months later, can the government obtain a ring video under section 215? >> let me answer that question, during the house judiciary
11:31 am
committee what i said as i can see surveillance video would be relevant and meet the relevant standard of the records request so that's something that would be in the scope of records that you can seek with a business record order and whether any particular surveillance video would be attainable with depend on the facts. let's say you're at a bank, and atm -- >> or at a gas station and have her surveillance camera at the gas station and there's a terrorist that stopped for gas, you want to get the video, in the context that something you can get with the subpoena in ordinary criminal case and you can probably get that with the business record order. other systems where the electronic communication privacy act may come into play, that video with a provider would raise different issues. in that scenario because that's more like store content which might be protected by the fourth
11:32 am
amendment they cannot get with the word. just to clarify it depends on the facts, what i said on the house like it is not ruled out the cannot get surveillance video, it would depend on the facts in the particular cases to whether you can get it. if you can get it in a criminal case, you can get in the business record order for the subpoena you cannot get fourth amendment protected content with a business record order. does that answer your question? >> it's very close to answering. i appreciate it. thank you, mr. chairman. >> i'm happy to follow-up if there's other aspects to that. >> that was fascinating. >> thank you, mr. chairman, thank you for your willingness to serve our country and effort to make us safer. while protecting our privacy rights. as i said before, our privacy and security are not at odds with one another. our privacy in fact is part of our security, were not truly secure and lesser privacy rights are protected.
11:33 am
i want to thank senator leahy with his work for me on these issues over the year, senator, there's no daylight between us on these issues. one of the issues we covered in addition to introducing the freedom act together, relates to something you mentioned a minute ago with the electronic communication privacy act. a law passed in the eighth grade and it's a law passed where no one had computers, no one had e-mail outside of a small handful of people in government and academia, no one had e-mail. and as i read that law, it does give the government access not only to metadata surrounding e-mail but the content of the e-mail as long as the e-mail has ripened to the age of six month. this is stunning. so coupled with the authorities were talking about, that ought
11:34 am
to be of concern to every american. most americans are very concerned when they find out this is the case. most americans are concerned when they find out about most of the authorities it's why these hearings are important and why i hope to make them not just regular but a monthly incurrence and why we need to have some of these in the skits so be it. we need answers to these questions. what is the fbi working definition of tangible things in the context of business record? >> our definition is within the provision, brokerage papers, other items, billing records, hotel accommodations, storage facilities, vehicle records, it also provides for sensitive items such as library circulation records, book sales, firearms sales records, tax records, educational returns, those documents we need a higher level of approval, these are the
11:35 am
same things that could be done by a injury. >> what the definition encompass record. >> yes. >> medical records also include and not exclude mental health records. >> i think with all of these we would have to show relevant that this information -- >> i believe so, on each individual case, we would have to let this violate the fourth amended issue in which case we would have to go for a search warrant. >> it is right in the statue, because then section 1861a13 they talk about the fact that you can apply for the production of book sales, tax return records, educational records or medical records. it's in the statue that congress has given us, its address. >> understood. >> dna test results also presumably.
11:36 am
>> just to be clear were talking about exotic things, were not using this authority, is to get these into the record is not clear what the relevance will be it's possible, conceivable that this could come up, these are not the garden variety uses of the records authority. . . . within the federal government we made this law and you are telling us what it says. our job is to figure out what extent we shoulto whatextent wed would extend we have to change it. most americans wouldn't be alarmed the eu's which they could check a few necessary boxes and obtain someone's medical records including mental health records and obtain tax records including a charitable
11:37 am
organization they have been to donate to. the records of searches or other internet search platforms, the conversations as it is overheard by amazon alexa or some other technologies. when you put this much power in the hands of the federal government, one has to worry and the fact you don't use them all the time is not a suspect or a response from our standpoint. again this says nothing about you. we are talking about us as lawmakers and whether it is a complete dereliction to protect the rights to the american people to give this power in the first place to the government officials. most of the officers if they were inclined to abuse the rights of assistance were inclined to abuse general warrants they would say we only use this for good things, for
11:38 am
the king, for the country, for god and they would claim they didn't abuse them. you ask most british subjects at the time and they would take quite a different view. one of the many things that worries me about this is the fact that we are told a number of these things will very rarely ever be sought and yet again giving the evidentiary area standard that is deemed permissible to obtain these records this is of great concern to many americans including me. this isn't exactly something that hasn't gone an abused in the past and when you look at the church committee reports from back in the 70s they analyze the abuse of telephone recordings basically since the development as a commercially viable option.
11:39 am
up through the presidential administration in power the proceedings were coming to. those in office had abused the american surveillance and law-enforcement and espionage law-enforcement and espionage agencies to engage in political espionage. we know these things can happen and when they can have been they do happen. that's why we have to tie a tie to set up restraints around it because it will be abused. this is unfortunately human nature. >> thanks mr. chairman thank you for having this hearing. i think as most americans have never heard of the fisa court before the investigation most people now when they think of the report, they think of carter page, they think of what they've
11:40 am
read that issue and there've been charges with the result of an illegal partisan scam engineered by political enemies in order to affect the outcome of the 2016 election. it indicates either in applying for the warrants or in the fisa court granting the border and some of you know. let me ask mr. whitman --
11:41 am
>> i can't comment on that because i don't know the answer and because that's under investigation, so i think that issue is being examined right now and we are waiting on the report to see what it says. >> i have to agree i wouldn't be able to comment if there wasn't an active investigation they would be the appropriate individuals to talk to. >> let me put the question in a different way. do you believe that there is a need to putting aside carter page for the fisa court? >> i don't. i think it operates really well and there's an extraordinary amount of oversight and the level of attention that goes into every warrant is extraordinary. it's at the highest levels and you contrast that with criminal
11:42 am
cases but it's more significantly different if it is a drug dealer or organized crime figure and so forth so we have quite an elaborate regime for approval of the mechanisms and higofhigh standards and extensie oversight so i think from my perspective the system is working pretty well. i think the american public is able to see this process would be very surprised about how much goes into protecting their privacy. the record authority cannot be
11:43 am
used to obtain anything that is protected by the amendment the interplay between the statutory restrictions and the business record authority is something i wasn't kind of opining on so in the event we would have to consider. it could be obtained within ordinary grand jury subpoena invective is less because we have additional oversight and
11:44 am
additional requirements. i want to make it clear there is nothing -- >> you took a lot of my time. >> i apologize for the. >> but it was a good question. let me raise one last issue in 2012, the solicitor general assured the supreme court any criminal defendant who was being prosecuted using evidence discovered directly or indirectly through the surveillance authorized by section 702 in the amendment would receive notification of that fact. that kind of notice is essential as they have no ability to challenge the lawfulness of the surveillance is used against them. it's one of the key mechanisms to ensure all government action and it disappears if there is no
11:45 am
notification. it became clear the department of justice would not inform them when section 702 had been used to build the case against them. i know that the policies have changed since then and it's going to be an easy one for you. the department of justice always inform when the case against them is built on evidence gained through section 702 surveillance. >> it is obtained or derived and we would comply and provide notice in that context so all those elements have to be met and it is essentially a person on the communications of it
11:46 am
could be the information used in which case we would have no obligation to notify that person because they wouldn't have an interest and ability to assert standing to death. so we have to meet those requirements but if that is the case -- >> dot he or she is not being surveilled. >> that the communication of others could be relevant so in that case we wouldn't give notice to them but other things could be relevant if you are following the. >> let me ask about section 215 the department of justice. >> we are about two minutes over. he took two minutes of my time. i will submit my questions. >> section 215 does not have a noticed provision and the reason for that is as i explained earlier there is no suppression remedy so there is no notice
11:47 am
mechanism and that is what congress has prescribed. >> thank you. >> thank you mr. chairman and thank you to all of you for being here. i've listened carefully. i know you have difficult jobs and i know your colleagues do this well and i thank you for the jobs you do. by and large you kept us safe and i appreciate that. i am not sure how much progress you are making today. i understand that there is little you can tell us in a public setting. you will probably be somewhat reluctant and i understand that. it would seem to me that when we
11:48 am
do this again we could put yourself in our shoes for a second. we cannot see what you see. so we have to assume the worst. that doesn't mean it is an inaccurate assumption that senator lee made the point well the government has been known to abuse its power. none of us want to look around one day and see that america has a social credit system like china. all i know, facebook has already enabled that is a separate topic. and let me give you an example.
11:49 am
i guess this was back in the late 60s president johnson had decided not to run for reelection. he was in the middle of the paris peace talks. he received information that then candidate and later president richard nixon allegedly was interfering in the paris peace talks for political reason. i don't know if it is true or not. but there was credible information that president johnson couldn't say anything because he got his information through the illegal wiretaps. we don't want to end up there again. in the little time i have left i hope the wealthy. on the detail record systems, was it shuts down because of technical difficulties or because of a cost-benefit
11:50 am
analysis? >> i would say that it was shut down and suspend it but we couldn't do that in isolation if not take into consideration the other factors we don't operate in a vacuum so we would weigh out the different factors to try to come up with a comprehensive and thoughtful position on how to proceed with the program. >> you are not a policymaker. i've been very impressed with your testimony and can hurt given the circumstances. if you were a policymaker, perhaps you should be, would you know the program? >> what i will say to that is i support the administration's position because i believe it is the best position to have with respect to this program.
11:51 am
the reason that i believe that as bais that as i mentioned bef, by way terrorists communicate and technology evolves isn't out of the realm of possibility certainly to say that we might find a new technology out there that we have never even considered or thought of. perhaps the way we can get insight into the context would be to leverage this particular authority and i want to be able to have the ability to move as dynamically as possible and try to get out of those communications once the decision would be needed to say yes we think that the potential value of that authority and how we would apply and leverage it would outweigh the resource cost and we are confident in our ability to execute that authority in compliance with the regulations and policies that govern us.
11:52 am
>> thank you mr. chairman and each of you for your info being as candid as you feel you can be in this setting. i will say i think most people looked at what transpired with the 2016 elections and that the abuses in the fisa court process and communications and actions between. something needs to be done about this because we value our privacy. and we probably should have years ago put in place online privacy guidelines but congress has not done that. people are just now becoming aware of much of this, and it is imperative that as we do these reviews that we do them right.
11:53 am
you just spoke to the evolving technologies and we know that terrorists today don't pick up the phone and call somebody and say this is what i'm going to do. they are using signals and what is there. they are using snap back, things of that nature to use and i do think that it's important that you all be able to work and ev evolved as the new technologies come into the marketplace and come into play but i would like for you as much as you can now and then when we go into the classified hearing then be able to expand on how you are involving and working with these new technologies and tracking
11:54 am
the way adverse factors are using this technology if you would get just a little snippet. >> thank you for your question and i will do my best and an open setting. what i would say is as i mentioned before, the congress passed the laws to give different tools and different option. over time, we applied those authorities in different ways in the confines of the law and in accordance with the law and regulations as the technology changes. so the way that we might have applied the law or the authority when it was passed as an evolutionary process that changes. >> we need to make the appropriate changes and give the tools that are going to be useful and if there are changes that need to be made, we need your insight on that because we do not as senator kennedy just said, we don't know what you know so we are putting a platform in place, a guideline
11:55 am
in place, the statute is in place and then you are trying to come back in and take what you are doing into those areas and those policies in place and then you are taking those actions based on that. so we need your help and your in sight. we have lots of questions about section 215. i tell you what i'm going to wait and do that when we are in a classified setting with the question. one thing i do want to hear from you all and we go to such a setting, mr. chairman to the safeguard on the data that you are collecting and retaining
11:56 am
independent disposal we need a little bit more information on that and it would be inappropriate at this point we realized tha that so we look for that in a classified setting and i will yield back. >> thank you mr. chairman and into all of the witnesses for being here. can any of you compare the amount of data, volume, type of data the government has been able to collect using these tools with the amount and volume of data that the private companies coming and i am the king specifically are they comparable do they want to collect more, do you have a sense of that i would just be curious to know. >> it depends on the type of information you are talking about it if you are talking about electronic information, we can only get the information in the process targeted any
11:57 am
particular case. it depends on the companies of the lot of them maintained that data they maintain full access if that is the answer to the question for their own commercial purposes and so forth, so i would have access to much larger quantities than the government could get into legal process. >> you do have to go through some sort of a process if there is an understanding depending what it is you are collecting that google and facebook and tiktok and whoever else, they don't have to go through -- 18 at the user's content which they don't usually even ask for, do they have access to the geolocation data, search data, phone books, messages etc.? >> that is correct. >> switching gears is just as likely if we ask abou of the bus records provision on section 215. how has the fbi used this authority the last couple of years can you give me the sense would'vwhat it would mean for te bureau's ability to counter terrorism and other threats is the ability to obtain the
11:58 am
records information went away, just give some perspective on that. >> in a variety of ways mostly it is a building block for instance as i stated earlier today an in a terrorism case, on times when an extremist against immobilized they rent a vehicle or bomb making material. this enables us to get the sales records to determine he's doing it so they can disrupt him. additionally, we've often times used business records to try to communicate transactional records that is who are you communicating with but not the content that has been especially helpful in the counterintelligence investigation since we talked about the networks be intelligence officers are building to recruit u.s. persons and we also use tha used it in e way our terrorism cases as well. as far as what would happen if we lost the provision, what we would be able to acquire would be limited down to four we wouldn't get the the totality.
11:59 am
in addition and counterintelligence cases, they were able to get a transaction record business records and most companies don't comply with the national security letters and investigations often times the crime hasn't been committed so we wouldn't be able to declassify the information and then go to the grand jury for that. but some of the standard was increased from relevance to the investigation to something higher than this pertains to an agent of a foreign power. >> the biggest change that came with the act was the collection of data and i wonder what different this has made operationally over the last four years and what if any changes need to be made in the current system before requesting a detailed call records. >> under the program, the
12:00 pm
telecommunication providers were limited and they would get it in an indiscriminate fashion whatever they could give to us is what they would give to us internally to nsa there would be an approval process that would be training to be able to have say a phone number and look into that data. under the program that we are here talking about today, it is a bit different. the providers hold onto the record in bold. the processes which were targeted. so, what happens is an analyst might say i have the phone number and a reasonable suspicion that the user of the phone number is involved in international terrorist activities. we would coordinate that with the fbi and the doj and we would file an application with the fisa court. if the court agreed that we met the appropriate standard, then we would be able to compel them
12:01 pm
to give us records associated with that particular phone number. now when you look at the two programs as you know there are some differences in math one being now we have a court approval process in place now and it even has a court approval process it isn't as quick as something that doesn't have the approval process in place especially one particular distinction in terms of the integrity and compliance concerns they are related to the underlying data that we were getting from the providers we assessed we would have been some other problems 2015 when the congress came together to pass the usa freedom mac we were endeavoring to strike the balance between the competing
12:02 pm
interests. that legislation was bipartisan legislation. my friend senator lee took the lead in passing it and i was proud to work site and in doing so. i think the objectives were number one to protect the civil rights of the american citizens the usa freedom mac took a significant step back to survey all the citizens at the same time statutes off to enhance the tools to go after terrorists, to go after criminals and those who oppose a real threat to the health and safety of americans and i think that likewise is the
12:03 pm
right spelling and law-abiding citizens. that distinction is right at the heart of the usa freedom mac. i am not one who was interested in the thinking to go after and two surveilled them effectively we wouldn't sanction the widespread violation of privacy rights of american citizens. so my question to the panel is a general one which is we now have several years of experience under the statute which got bipartisan support passed into law. how is it working, did congress
12:04 pm
strike the right balance and are there sufficient, are their number one, sufficient protections for the privacy rights of american citizens, and number two, are there sufficient tools to go after people that oppose a genuine terrorist threat? >> i think absolutely the authorities are appropriate and have implemented appropriately and reviewed by dig multiple times. they are not used all that often. the authorities are used selectively in these investigations so i think we
12:05 pm
have a lot to process an authorized. one could call as to whether there is too much to process if they are difficult to use but we are comfortable with what we have now. i don't know if that answers your question. when i look at the provisions we haven't used the lone wolf the other traditional business record we have a solid track record with it. if anything i would say most would complain it's a lot easier to go to a grand jury subpoena so i think we have sufficient protections in place. >> the most recent report on 215, the main complaint is that it takes too long to do the process so they would use other authorities on the criminal side because those are easier to use. >> i believe that from our
12:06 pm
perspective it did strike the right balance and why do we have had challenges from the compliance concern implementing the program, i think the checks and go to work he took steps to address the all three branches for the overseers so i do think that it struck the right balance. >> you used the phrase like a solid record. can you elaborate in terms of the benefit tools? >> it has been beneficial to us on the authority given how intelligence versus the officers surveillance it's given the ability to keep pace when then did it go with them when they switch phones or hotels and with regards to the business records it's been very valuable in helping us develop our cases as i said earlier regarding
12:07 pm
terrorists acquiring weapons against the ability to give get ahead of those when there is classified information. we do receive a lot of information from our foreign workers and the others that gives the ability to protect americans. >> thank you. >> you have done a good job informing the committee. and have some tough questions but we will work through it and do a classified hearing to dig down more and make sure we know what we should reauthorize and what we shouldn't. thank you. next panel please.
12:08 pm
>> [inaudible conversations] thank you all. on this panel we have the chairman and member of the privacy and civil libertarian oversight board. founder and executive director national security institute and
12:09 pm
george mason university, codirector of the national security program at the brennan center for justice. mr. klein. >> thank you mr. chairman and ranking member feinstein. i'm happy to be here to testify today. >> if you can keep it to a couple minutes that would be great. >> i'm going to revise my statement downward. the chairman of the oversight board which is intended and bipartisan executive branch agency dedicated to ensure efforts to protect against her but some are balanced to protect civil liberties and i just want to mention my remarks today are in my individual capacity as the chair man and do not reflect the views of my other bipartisan colleagues. we talked a great deal today about the contours and origins of the program so i'm going to stick to skip to those and what
12:10 pm
information we can provide to the committee. in the upcoming reauthorization deadline come our board has reviewed the collection of detailed records under the usa freedom act that investigation involved mum this affect findings. recently submitted a report of the community for accuracy in classification review. the draft contained the company account of the technical operational issues that occurred during the program's life. i'd like to thank the staff for their mom is of hard work on the report and the document remains classified, but we are prepared to brief any senators and staff at any time including immediately after the hearing.
12:11 pm
we found no malfeasance or abuse of this authority we looked and found no evidence that they've received any of the prohibited categories of information under the statute and as a reminder those would include the content of calls and the names of the subscribers, financial information, cell phone location information or gps coordinates. we also looked at the operational use of the program in great detail and as i said we are prepared to answer the questions raised about the operational use of the authority and a classified setting. you.
12:12 pm
my view based on the facts it was well supported by the available evidence we also looked at the compliance concern of the data integrity concerns that led them to delete the data and eventually influence the individually influenced the decision to suspend the program. those challenges were inadvertent and were not willful. i also think it's important to note when nsa receives information that raises questions about the scope of what was allowed to collect under the statute and the agency chose to follow a narrow understanding of this authority under the act rather than the more expensive interpretation that would have given it greater leeway and we are happy to provide the details supporting that in a classified setting for the senators are staff members we hope review process at work will proceed it can be provided to the public at some point and hopefully potentially a classified documents to the
12:13 pm
committee in congress as quickly as possible. we are grateful that the community officials have been working hard to respond to the investigative requests. thank you again for the invitation i look forward to answering your questions. >> it means our ability to collect information through the 215 program the lone wolf program congress needs to act in the next 40 days to take some action to reauthorize some of these provisions the value of
12:14 pm
the lone wolf and grossing for the debate about that it seems like a sensible thing to reauthorize. when the government is able to obtain a broad record beyond what the original version provided prior to 9/11. there is no evidence of any miss use or abuse in the last 18 years since they've been around instead of running to the situation again and having the concern of losing the authorities then we come to the final authority which has been a topic of much of the discussion today in the freedom act it generated the debate that we had
12:15 pm
and led to the changes that were made in the program. so, the question is why reauthorize the program if in fact it's no longer using it. today the threat we face from her rhythm feels more distant than 9/11. it feels more distant than the days they were happening with some regularity in the united states. we have put them on the run for the past 20 years by fighting them overseas. attacking them at home and abroad and americans wherever they are, those threats are clear it remained strong with the fact we take away the territorial habitat in syria and iraq and we know that they are gone today thanks to the good work of our intelligence and military communities and can
12:16 pm
remain committed to attack here at home. as with al qaeda it is important to remember they remain a threat to us also and let's not forget about the threat iran and its process posed. in the last two and a half years and they remain committed and began to attack us and our allies overseas and the u.s. drones. we've seen the attacks against the additional threats by iran and the united states for the threat of terrorism in the proxies directly to al qaeda it remains strong. the question becomes what do we do with a tool that we might utilize that isn't being utilized today. we take it off the table and remove it from the toolkit our operators might need or do we look at it carefully if you're going to use it let us know. it strikes me as the right approach to the problem is to at least leave the authority available for the operators to
12:17 pm
use. it's been modified significantly from what it was. the concerns raised during the debate over the 215 are now addressed. there are still questions about the breadth and scope of the question that takes place even with a single individual, they can be addressed through careful oversight that the committee conducted. i able say it is embarrassing the justice department was unable to answer the question for a year. when i was at the administration we try to avoid things like that they do happebut they do happen. it's not acceptable. you have members of the government come before you tod today.
12:18 pm
this is all the buzz building blocks so that i would say to the committee as you are not going to find the silver bullet if you are looking for -- but at the same time it is being worse to take the tool of the table when it remains high and substantive. >> members of the committee, thank you very much for the opportunity to testify. the usa freedom act was the most significant surveillance reform in nearly 40 years and it was also a compromise and experiment. several reforms that were included in early versions of the bill were dropped in order to obtain the administration's support and moreover, the mechanism congress innovated to try to prohibit the collection and use of the so-called specific terms was a bit of a gamble. the definition was left open-ended which raises concerns that in practice it might allow collection that was if not bulk collection at least bulky.
12:19 pm
thanks to the transparency provisions we have insight into how it is working. the bottom line it isn't fully serving its intended purposes. most obviously, the new phone records program established by the usa freedoms is a failure and i won't go into it because i'm trying to go faster and we talked about it quite a bit but i will say this idea that an authority might be useful and compliant with the law in the future is an argument for giving the government unlimited authority because you never know when the authority might be useful. it is clearly time for congress to pull the plug on the noncompliant and ineffective program. in addition, the government's statistical report shows that the mechanism is not working as congress had hoped. under each authority including section 215 also in the national
12:20 pm
security letters the number of unique identifiers captured his orders of magnitude greater than the number of actual targets. what this suggests is that the government is choosing targets and or ssp is that encompass hundreds or thousands of people such as large companies were ip addresses that have large networks of people. in doing so the government is inevitably going to be sleeping in large amounts of information that has no relevance to any investigations. that is the definition of the bulky collection. furthermore since 2015, several court opinions have been disclosed showing systemic noncompliance by the government with a limited in place to protect american's privacy and constitutional rights. in one case that carries disturbing essays, the court
12:21 pm
cited the fbi for contacting the collections under 702. so under the fbi procedures, each inquiry is supposed to be reasonably likely to return for an intelligence or evidence of the crime agents have been running up to 70,000 people at a time on the theory that these in aggregate would return a hit. and finally with respect, he isn't correct there are no privacy or civil liberties concerns in the lone wolf positions which i would love to get into later if we have time. in short, there are significant gaps in the protections established by the usa freedom act and congress should take this opportunity to fill those gaps. as it is discussed in my testimony into detail congress s should end this program but also tighten the standards for collection under 215. recognizing some over collection will continue to occur and congress should enact the minimization requirement.
12:22 pm
it should close the back door loopholes that underline the inquiry and other were in place searches of communications. it should implement the supreme court holdings something the government has failed to do by buying worthless collection of geolocation information are similarly to the data. it should expressly prohibit race, religion or other protected patristics as well as the surveillance predicated under the activities and fill the holes in the transparency and oversight provisions it should allow the provision that has never been used in 15 years to expire and should amend the roving wiretap provision so that it matches the parallel criminal possession. so, thank you and i would refer to your questions. >> we have a vote of 12 and we will keep going as long as we can. >> about the ctr program do you recommend that the bill be preauthorized?
12:23 pm
>> thank you, senator. i want to first say i agree that the terrorist threat remains. >> do you recommend -- >> i agree it was a correct decision to suspend the program whether it is useful to keep it waiting around on a few predictive judgments. you'you think it is going to be useful in the future depends on how the terrorists are communicating. we heard the testimony obviously that is different than the greatest and the latest classified information. >> i think the point i'm trying to make is unlike the things we can rest a solid judgment on based on the retrospective look at the program is a predictive judgment about the future so the key factors are how they are going to communicate. we know they are moving based on the publicly available information and not sticking specifically to the telepathy. people still use phones but i think that you would want to get their judgment in a classified setting and other agencies about whether they are going to be
12:24 pm
sticking with phones or a more multifaceted authority that takes in more types of communications might be useful and of course there's the issue whetheof whether the technical challenges that were publicly disclosed in the program can be fixed and i think we would want to talk more with you in a classified setting to explain our view of what those issues are and we would be happy to do that immediately after the hearing or any time it is can he meant. >> what say you have a scenario somebody is trying to come in on the refugee program and we find on the website urging people to embrace what do we do about that? >> that on its own depends if it is a true threat or incitement to violence.
12:25 pm
it depends what you mean by profile. if it has to do with actions taken, they may be involved in some ways it turns into that is valid. >> i agree absolutely that challenge of course though is you can't get a traditional order unless they are an agent of the power. >> the whole point of the lone wolf. wolf. >> exactly. >> may i say one thing about the lone wolf provision lacks what it does is allow the government to get an order from the fisa court indicates whether it is probable cause that a person isn is involved in or preparing for international terrorism. if you have probable cause a person is preparing for international terrorism you can get a criminal warrant. that is why it hasn't been used in 15 years. >> the fact that the matter is that isn't the only reason. there are times in which you
12:26 pm
don't have enough information to get a criminal warrant. >> that is the point. the government has repeatedly asked for that authority and thd preauthorized -- >> in the probable cause it is still a standard you have to meet. >> to believe they were involved in the crime committed -- >> all the problems associated in the program you believe the government acted responsibly in terms of how they handled this? >> yes, senator i do and there's a couple key differences in this program and the former program. the most notable of which it was based on the publicly debated and enacted statute that cleary laid out the contours of what the government would be able to do under the program, and our review indicates they made every effort there were some issues that judge -- >> they were basically self-regulating. >> there's an infrastructure in
12:27 pm
place any large enterprises going to involve mistakes if the question is how you respond to them to you take them seriously to the mediator told the truth about what happened. >> one last chance to get the answer to the original question. all of us are worrying about how he explained to thwe explain tos to reauthorize programs have been shut down and what do we say the day after and attack? did we do everything in reason to prevent the attack and if you had to say what is the wise decision in terms of hedging your bet to keep the program around. >> with respect, senator and i don't mean to trivialize the program, but nsa operated for several years and determined that it wasn't worth the squeeze. we looked at the juice and squeeze into my judgmenthesqueet they made the right choice. whether it is worth keeping around in the future depends whether they think they can squeeze it better in the future.
12:28 pm
>> fair enough. senator feinstein. >> i said on the intelligence committee, and there is no question we should keep our protection devices up and that there are people who would harm us if they could. i am categorically not for taking away any of the safeguards that this country has put in motion. i believe it is our obligation to protect us and i watch carefully, i do my background work, i read the intel and there are a lot of problems out there. the question i have is how do we keep them from hurting this country, and i view that as my directive for my california constituents. so, i am not for canceling out
12:29 pm
any program that exists. how we run it better, yes. how we run a more efficient way, that's fine. but to begin to remove these now with all that i know is going on in the world, i am not going to be able to do so and i just want to make that clear. >> can you sort of split this thing up and i would remind you of the authorities all make sense to me if the program seems not as revved up to the hopes and expectations i guess you could reauthorize and make a separate decision on the other conditions two years from now. i don't know what he would be in the market for but not too reauthorizes permanently if givebutgive it another chance it know if that makes sense to you. >> thank you very much. mr. klein lets start with you.
12:30 pm
in your prepared testimony, you referred to recommendations made -- which is really good by the way. in response to that, we added a language to the usa freedom act a section requiring the fisa court to be able to present arguments in certain cases where there's an order that's necessarily going to involve a novel or significant interpretation of the law as determined by the court of course. in your view, does the fisa court utilizecourt utilize the s often as it should? 's panic that was a recommendation made by my predecessors but i strongly agree with it and i think it is essential to increase the public credibility of the court which
12:31 pm
after all is staffed by article three district court judges so they should be credible but we also have the adversarial process and assume and i think we all agree that improves the quality of the decision-making. if you look at the public reports coming out about the number of amicus agreements you will see an upward trend so i think that is a good thing. my personal inclination would be to ensure that its involved as much as possible including every matter where you can be confident that there's going to be a significant programmatic decision made. one example and this is what i cited in the past the annual certification proceedings take place under section 702 bits different from the wiretap where you are looking at one guy and what he may have done. the programmatic judgment about the safeguards in place for the program and in my view that is the type of situation you should by definition always have the participation of the test.
12:32 pm
>> i wouldn't, senator, respectfully. most of the fisa court proceedings are analogous to one proceedings take place on in expert i basis in federal district court judges are just hearinaren'tused to hearing thod making those decisions in this matter and that makes sense for various reasons. >> some of us concerned with would be addressed by providing a carveout for cases involving the emergency but i suppose that is a different question. i have some questions for you but before we get to those, i sensed a few minutes ago you wanted to respond to one of the arguments being made with regards to the lone wolf provision and the problem. do you want to get to that? >> thank you. i wanted to make sure we understood we were talking about the probable cause, not low and
12:33 pm
in probable cause but we were talking about the probable cause that the person is preparing for or engaged in acts the international terrorism and if you look at the definition of international terrorism that is pretty much what you might think so the notion that it somehow wouldn't be enough to get a criminal warrant first of all does not make a little sense in into second of all isn't borne out by the record. it's not that people haven't -- it's not that the government hasn't been getting the information that it needs but it's been getting it through other means because the loan loss provision isn't necessary. >> and it is at least as difficult without the presidential track record of other mechanisms already available. so why have it on the books if it is never used and it's not likely going to be used because it doesn't really have any new ground. >> it removes the principal connection to the foreign power
12:34 pm
or agent of a foreign power that is the principle behind when we use the process as opposed to some other process so that sort of opens up the door to gradually degrading the rights that are available to persons unlawfully in the united states. >> creating a danger that isn't necessary that hasn't been used. how do you think carpenter applies in the fisa election process? >> the court essentially held that there are certain types of information that are so sensitive, so inherently sensitive and what they reveal about a persons life but the fact that they are held by a third party doesn't eviscerate the person's fourth amendment interest in the information. and in that case it was a several month's worth of cell phone location data. the court was very careful to say that it was up to the fact of the case. it said this wouldn't apply to other technique that are used in
12:35 pm
the foreign intelligence and national security areas. but if in fact the section 215 is used to collect the location information, but isn't another technique. it's the same technique so i think that carpenter would apply there. and while the court is not responsible for applying its general principles to pieces that burned in front of it, congress can't avoid that. the government can't avoid that. you need to figure out how before reauthorizing the legislation, how you think carpenter would apply to some of the other technologies and other information that we know that the government is certainly obtaining in the section 215 orders. there are certainly other types of information and other ways of obtaining the geo location data and other types of information that are similarly sensitive and what they reveal about a person's life with the logic of carpenter that would absolutely hold. so i think that is something congress should be looking at
12:36 pm
now when a reauthorizes the section 215. .. >> that is correct with national security and then in the past congress made a decision of a fight is a court order should apply to extremely sensitive information so i thank you it
12:37 pm
has been a great year we will do a classified follow-up with the program and with this thought is difference between fighting crime and fighting a war and i thank you understand the difference we will preserve it and tell it is necessary to hit the enemy within her constitutional democracy brickle there is a fundamental difference to go against an individual and prevent an attack on our country. that is what this is about. we'll have
12:38 pm
announcer: this week i newsmakers, patrick leahy of vermont, the top democrat on the appropriations committee. he assesses the status of the bills in congress just two weeks before federal funding runs out. senator lahey also discusses impeachment efforts and his own experience during the impeachment trial of president clinton in 1999. that's today at 6:00 p.m. eastern on c-span. watch the c-span live work -- live next week as the intelligence committee holds the first public impeachment hearings. the committee led by adam schiff will hear from three state department officials starting wednesday at 10:00 a.m. eastern on c-span three, top u.s. diplomat in ukraine william taylor and deputy assistant secretary of state george kent will testify. then on friday at 11:00 a.m. eastern on cspan 2, former u.s.
12:39 pm
ambassador to ukraine marie jovanovich will appear before the committee. at if the hearings, read witness testimony from the debt -- from the deposition. find the transcripts on c-span.org/impeachment. this veterans day monday on c-span, at 11:00 a.m. eastern, live coverage of the laying of the wreaths of the two of the unknowns. 1989 nbc news broadcast on the fall of the berlin wall and at 10:30, veterans talk about complexities of war on veterans day, watch c-span on tv, online at c-span.org or listen using the free c-span radio app. secretary of veterans affairs, robert wilkie, assessed the performance of his department and its goals for the care of our nation's veterans just before the veterans day holiday at a national press club headliners lunch in. -- luncheon.

14 Views

info Stream Only

Uploaded by TV Archive on