Intelligence officials were castigated early Wednesday at a House Judiciary Committee oversight hearing on the Foreign Intelligence Surveillance Act, with a few congressmen going so far as to call the mass collection of phone metadata “illegal” and demand that it cease immediately. Senior members of both parties took turns raising tough questions — and their voices — with representatives of the NSA, FBI, DOJ, and Director of National Intelligence.
The discussion focused on two NSA programs revealed by former NSA infrastructure analyst Edward Snowden. Mass collection of so-called telephony metadata is permitted under Section 215 of the PATRIOT Act, pertaining to “business record sharing.” The PRISM program culls communications from domestic Internet companies including Facebook and Google. Both ultimately rest on the Section 702 of the 1978 Foreign Intelligence Surveillance Act, as modified by the 2008 FISA Amendments Act (FAA).
Congressmen objected that they never envisioned this type of surveillance when they passed the laws used to justify it. Recalling his role in enacting the PATRIOT Act and FAA, Ranking Member John Conyers (D-Mich.) said, “We never, at any point during this debate, approved the type of unchecked, sweeping surveillance of United States citizens employed by our government in the name of fighting the war on terrorism.” Before the hearing Conyers told me he is not satisfied with the FISA Court’s oversight or non-adversarial process and called for the NSA to justify such mass collection of data. But when asked to do so, the witnesses struggled to move beyond careful talking points. In general, they broke little ground beyond what was covered during a June 18 House Intelligence Committee hearing (see previous coverage).
Deputy Attorney General James Cole stated that officials believe the programs strike the right balance between liberty and security. He emphasized that they rest on all three branches of government, grounded in FISA Court judges’ interpretations of congressional law and subject to thorough internal and external executive branch oversight. Most of Cole’s statements were recycled from past hearings, including the claim that metadata collection does not include location data. Director of National Intelligence General Counsel Robert Litt said that, while business records such as metadata are not protected under the Fourth Amendment, “we agree with the ranking member that we should strive for the maximum possible transparency,” consistent with national security. Unfortunately, he explained, FISA Court arguments are intimately tied to classified facts sensitive to national security, with few exceptions, precluding public disclosure of most cases.
Cole explained that because phone carriers keep metadata for as briefly as fifteen or eighteen months, archiving it is a practical necessity. He stated data are automatically deleted after five years because they tend to lose value by that point. The FBI’s Stephanie Douglas haltingly explained to Conyers that collecting metadata for the entire population allows officials to examine links between individuals and their connections to foreign terrorists. Conyers remained unconvinced. “We’re not questioning access, we’re questioning collection in the first instance,” he explained, adding “I maintain that the Fourth Amendment against unreasonable search and seizure makes this illegal…you’ve already violated the law, as far as I’m concerned.”
Conyers charged the NSA with distorting a “relevancy standard” Congress had added to the PATRIOT Act with the aim of confining surveillance to specific investigations. “I see this as a complete failure,” he concluded. “This is unsustainable, it’s outrageous, and it must be stopped immediately.”
PATRIOT Act co-author Jim Sensenbrenner (R-Ill.) warned that there are not enough votes in the house to renew the surveillance laws: “You have to change how you operate Section 215, and if you don’t, then in a year and a half or two years you’re going to lose it.”
Justice Department officials have long compared the NSA’s surveillance powers to those available to a grand jury. But Congressman Jerrold Nadler (D-N.Y.) grilled Cole for an example of a grand jury subpoena that requested all phone call metadata in the United States. “I believe this is totally unprecedented and an abuse of the statute and you can’t give me an example because none exists,” he spat. “If you’re collecting information about my telephone whenever I use it, that’s abuse, even if you file it away somewhere,” adding that FISA Court approval of the practice was “irrelevant.”
This brought the yelling to an end, but not the scrutiny. Howard Coble (R-N.C.) wanted to know how much these programs cost — which Chairman Bob Goodlatte (R-Va.) said was classified. Spencer Bachus (R-Ala.) expressed confidence that the NSA has acted in good faith, “but my concern is that this could evolve into something quite different.” He added that he first learned of the programs through news reports. Litt, the Director of National Intelligence attorney, could only respond, “I do not know what specific members knew, I only know what we did to inform them.”
Virginia Republican Randy Forbes worried how an NSA analyst could not be tempted to abuse his access to others’ private data, but Cole reassured him. “We have not, to my knowledge, disciplined anyone for this because our controls make sure that doesn’t happen,” he said. NSA Deputy Director John Inglis chimed in that the same is true of Section 702, but the tenor of today’s proceedings revealed genuine uncertainty and anger over its use.
The penetrating inquiries have begun now that everyone is on the same page. Chairman Goodlatte noted that a second, classified hearing will allow for further questioning about sensitive intelligence matters.