Tag Archives: fisa

Senator Rand Paul (R-KY) Filibusters USA FREEDOM Act; Future of Section 215 Uncertain

On Wednesday, May 20, 2015, Senator Rand Paul (R-KY) took the Senate floor to filibuster the USA FREEDOM Act.  While the Senate was considering a bill on trade promotion authority or “fast track” legislation, Senator Paul’s filibuster was intended to stall consideration of a vote of the USA FREEDOM Act.  Senate procedural rules mean that the Senate would not be able to take a procedural vote on the USA FREEDOM Act or Senator McConnell’s bill to allow clean reauthorization of Section 215 until at least Saturday, unless there is an agreement to shorten the addition 30 hours of debate permitted.

Senator Paul has been a sharp critic of government surveillance, including under Section 215 of the PATRIOT Act which is also known as the “library records” or “business records” provision.   This provision has been relied upon by the National Security Agency (NSA) to engage in bulk collection of telephone metadata, though the Second Circuit recently ruled that such bulk collection was unlawful under Section 215.  While the USA FREEDOM Act provides for new safeguards, Senator Paul has opposed the extension of Section 215 and other provisions of the PATRIOT Act.  Although he opposes the current text of the USA FREEDOM Act, Paul has announced his intention to offer several amendments to the legislation.

Senator Paul’s filibuster was supported by Senators Daines (R-MT), Lee (R-UT), Heinrich (D-NM), Coons (D-DE), Tester (D-MT), Cantwell (D-WA), Blumenthal (D-CT), Wyden (D-OR) and Manchin (D-WV).

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Image: Word Cloud of Senator Paul’s Filibuster of USA FREEDOM Act, Joseph Hall (CC-BY)

Additionally, while Senator McConnell has now filed motions to proceed on the USA FREEDOM Act and his reauthorization bill, both would still need to clear the hurdle of 60 votes for cloture.  It is not clear whether there are enough votes for either bill.  While there have been suggestions that Congress could pass a very short-term reauthorization — for example, a two-moth reauthorization — to provide time to forge compromise legislation, the House may not be able to consider such legislation before the June 1 sunset.  There is, therefore, a possibility that Section 215 of the PATRIOT Act might sunset, which could greatly change the dynamic of the discussions on surveillance reform.  Should Section 215 sunset, any reform legislation would essentially be seen as granting or reinstating authorization for surveillance under this provision once again rather than simply extending existing authorities, thus changing the political dynamic and potentially creating a basis for stronger reform to protect privacy and civil liberties.

House of Representatives Passes USA FREEDOM Act; Senate To Act Quickly

On Wednesday, May 13, 2015, the U.S. House of Representatives voted in favor of the USA FREEDOM Act, legislation that bans bulk collection under Section 215 of the USA PATRIOT Act as well as other authorities, such as the Foreign Intelligence Surveillance Act (FISA) pen/trap statute and national security letters (NSL) by an overwhelming majority of 338 to 88. ARL is pleased that the House of Representatives has passed stronger reform than its 2014 version and considers this development a step forward in surveillance reform.

Since 2006, the National Security Agency (NSA) has engaged in the practice of bulk collection of phone records under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision. The 2015 USA FREEDOM Act, backed by the White House, specifically addresses this issue and prohibits bulk collection, only permitting limited surveillance orders that focus on a specific selection term. The Court of Appeals for the Second Circuit also addressed this issue recently, ruling that the NSA’s practice of bulk collection exceeded the authority under Section 215 and therefore unlawful.

The 2015 version of the USA FREEDOM Act passed by the U.S. House of Representatives also includes several amendments to the Foreign Intelligence Surveillance Court (FISC) and transparency measures, representing an improvement over the version passed during the last Congress. The bill will now go to the Senate and must be considered quickly, given the upcoming expiration date of certain provisions of the PATRIOT Act, including Section 215.

While the version passed today by the House of Representatives includes better reforms to surveillance practices than in the 2014 bill, the USA FREEDOM Act is just one step forward in a series of necessary reforms. The Court of Appeals for the Second Circuit’s recent unanimous decision that the NSA’s bulk collection practices exceeded the scope of authority granted under Section 215 demonstrates the egregiousness of the NSA’s interpretation of its authority and the willingness of FISC to approve such broad application of the law. Congress should take care to ensure that provisions under USA FREEDOM Act are not similarly interpreted in an overly-broad manner by the NSA to infringe on the privacy rights of those in the United States. ARL looks forward to continuing to work with Congress to ensure that privacy rights are respected and hopes that additional reforms will be made.

ARL Joins Broad Coalition Calling for Surveillance Reform

On Wednesday, March 25, 2015, ARL joined a coalition of 47 advocacy groups, technology companies and trade associations in sending a letter to President Obama, Director of National Intelligence James Clapper, Attorney General Eric Holder, Director of National Security Admiral Michael Rogers, and Congressional leadership advocating for significant surveillance reform. Key portions of the PATRIOT Act, including Section 215 (known as the “business records” or “library records” provisions), which has been used as the basis for bulk collection of records, are set to sunset on June 1, 2015.

While these groups hold differing opinions on the best and most appropriate reforms, all came together in agreement that reform must include: 1) Ending bulk collection under Section 215 provision, as well as under Section 214, the provision governing pen registers and trap and trace deices; and 2) Transparency and accountability measures for government and company reporting as well as declassifications of Foreign Intelligence Surveillance Act (FISA) court decisions.

These elements are minimum components to a surveillance reform package. The letter concludes, “It has been nearly two years since the first news stories revealed the scope of the United States’ surveillance and bulk collection activities. Now is the time to take on meaningful legislative privacy, transparency, and accountability.”

Given the quickly approaching June 1 deadline, Congress must move swiftly to pass surveillance reform.   Last November, the U.S. Senate failed to advance the USA FREEDOM Act, falling two votes shy of the necessary 60 votes for cloture, which would have provided meaningful reform to current NSA practices. The Senate version of the USA FREEDOM Act, introduced by Senator Leahy (D-VT) would have ended the current practice of bulk collection of phone records, would have made meaningful reforms to the FISA Court, and included enhanced transparency. ARL urges Congress to act now and pass meaningful reforms, such as those proposed by Senator Leahy’s bill.

Senator Leahy Introduces New Version of USA FREEDOM Act, Includes Significant Improvements Over House Version

On July 29, 2014, Senator Leahy (D-VT) re-introduced a new version of the USA FREEDOM Act, co-sponsored by Senators Lee (R-UT), Durbin (D-IL), Heller (R-NV), Franken (D-MN), Cruz (R-TX), Blumenthal (D-CT), Udall (D-NM), Coons (D-DE), Heinrich (D-NM), Markey (D-MA), Hirono (D-HI), Klobuchar (D-MN), and Whitehouse (D-RI). ARL supports this version, which includes major improvements over the version passed in the House (H.R. 3361) on May 22, 2014, including more effective language to end bulk collection and protect civil liberties and strengthened transparency provisions. ARL has signed on to two letters supporting the new version of the USA FREEDOM Act, including one that focuses on the enhanced transparency provision and one that addresses the bill more comprehensively. Both letters urge Congressional leadership to act swiftly and pass the new version, without any dilution or amendment.

The version that passed the U.S. House of Representatives represented a significantly watered down version after changes were made by the House Rules Committee on the eve of the floor vote on the bill. Although the House passed the bill, half of the original House co-sponsors to the USA FREEDOM Act withdrew their support and opposed the weakened version because it did not go far enough in curtailing the Government’s ability to conduct bulk collection and failed to protect privacy and civil liberties in the same manner as prior versions. Organizations that originally supported the USA FREEDOM Act withdrew support for the House version and urged the Senate to ensure meaningful reform.

Leahy’s version narrowly defines a “specific selection term” in an effort to effectively curb bulk collection. It clearly prohibits the collection of broad swaths of information under Section 215—the provision known as the “business records” or “library records” provision—such as all information related to a broad geographic region (such as a city, state, zip code or area code). It also enhances minimization procedures, requiring the government to delete data it has collected on individuals that are not targets of the investigation or contacts of such individuals and limits the purpose for which call detail records may be generated.

The new version of the bill would also make several reforms to the FISA Court, such as requiring that unclassified summaries of FISC opinions include information necessary to understand the impact on civil liberties. It would also require disclosure of FISC opinions of “new construction or interpretation of the term ‘specific selection term.’” It provides further protections by providing for a Special Advocate position charged with protecting privacy and civil liberties and requires that the Office of the Special Advocate has access to relevant legal precedent and materials necessary to participate in FISC proceedings.

Finally, Leahy’s new version improves on the House version through enhanced transparency provisions. It requires the government to report on the number of U.S. persons whose information was collected and number of searched conducted under Section 215. It reduces the time a company must wait after receiving a FISA order before reporting on it from two years to one year.

A detailed comparison between the House-passed version and Senator Leahy’s new version is available through the Center for Democracy and Technology.

U.S. House of Representatives Passes Amendment to End NSA Backdoor Spying

On June 19, 2014, the U.S. House of Representatives voted 293-123 to pass an amendment to the Defense Appropriations bill to cut funding for NSA backdoor spying under Section 702 of the FISA Amendments. Current NSA practices include the collection of vast amounts of information and, provided that there is a foreign “target,” the NSA can search these collections for communications of U.S. persons, thus providing a “backdoor” method of conducting surveillance on Americans. This Amendment, originally primarily sponsored by Representatives Massie (R-KY), Sensenbrenner (R-WI) and Lofgren (D-CA), would restore Fourth Amendment protections by cutting funding of current NSA practices of conducting these warrantless searches.

USA FREEDOM Act Passed Unanimously Through House Judiciary Committee and House Permanent Select Committee on Intelligence

Last week, the House Judiciary Committee and the House Permanent Select Committee on Intelligence unanimously passed the USA FREEDOM Act (H.R. 3361). The bill, originally proposed by Rep. Sensenbrenner (R-WI) in October 2013, had 151 co-sponsors and an identical version was introduced in the Senate by Sen. Leahy (D-VT). Some of the language of the original bill was altered by a Manager’s Amendment just prior to the Judiciary Committee’s markup. Previous coverage of the USA FREEDOM Act is available here.

The USA FREEDOM Act, as amended and passed through the Judiciary Committee**, would make the following key changes and clarifications to the USA PATRIOT Act, among others:

  • Prohibits bulk collection of telephone records under Section 215, also known as the “business records” or “library records” provision.
  • Requires a statement of facts demonstrating that there are reasonable grounds to believe that call detail records requested under Section 215 are relevant to an authorized investigation and that “there are facts giving rise to a reasonable articulable suspicion that such specific selection term is associated with a foreign power or agent of a foreign power.” Specific selection term is defined as a term “to uniquely describe a person, entity or account.” The version of the USA FREEDOM Act as introduced did not include the limitation to specific selection term as the basis of a records request and therefore creates a stronger prohibition against collections of records generally.
  • Limits the definition of call detail records for collection under Section 215 to originating and terminating phone numbers and call duration. The definition explicitly excludes communications content, subscriber information, and cell site location.
  • Permits an order authorizing production of records for two “hops,” that is for the records of the person targeted as well as the call detail records of those in contact with the person targeted and those in contact with those contacts.
  • Prohibits the bulk collection of tangible things under Section 215 by requiring inclusion of “a specific selection term to be used as the basis for the production.”
  • Requires specific selection term for the basis of production where a pen register, a device that records all numbers called from a particular telephone line, is used.
  • Prohibits using Section 702, which is designed to permit targeting a non-U.S. person, if “a purpose” is to target the communications of a U.S person. This portion of the bill as passed by the House Judiciary Committee is not as strong as the original version, which prohibited backdoor searches of U.S. communications.
  • Creates the role of amicus curiae in the FISA court, unless the court finds that such an appointment is not appropriate. Under the version of the bill originally introduced, rather than having the court appoint amicus curiae, the bill intended to create an Office of the Special Advocate to advocate on behalf of interpretations protecting privacy rights and civil liberties and would be able to appeal FISA court decisions.
  • Requires the attorney general to conduct a declassification review of FISA court decisions and orders that include a “significant construction of law” and make them publicly available to the greatest extent possible. Where declassification would endanger national security, the bill would direct the attorney general to provide an unclassified summary.
  • Harmonizes the Section 215 reforms with national security letter reform.
  • Permits companies receiving surveillance orders to publicly report on the numbers of orders received and numbers of users/accounts subject to the orders.

**The discussions in this blog referring to the USA FREEDOM Act refer to the version passed by the House Judiciary Committee and House Permanent Select Committee on Intelligence last week. This version included the change made by the Manager’s Amendment and markup in the House Judiciary Committee. However, the version first introduced by Rep. Sensenbrenner is identical to the version introduced by Sen. Leahy and this original version of the bill remains in the Senate.

The Day We Fight Back: NSA Reform Bills To End Mass Surveillance and Provide Greater Transparency

Today, February 11, 2014, individuals and groups are participating in “The Day We Fight Back,” a day of action protesting the government’s mass surveillance programs. Revelations about the NSA programs, including the breadth and scope of bulk collection of data conducted under Section 215 of the PATRIOT Act (also known as the “library records provision”) have raised serious concerns regarding curtailment of civil liberties and the compatibility of these programs with the First and Fourth Amendments.

Following revelations about the NSA bulk collection of data, members of Congress have introduced various bills to address concerns regarding privacy and civil liberties. Members of Congress have also cited concerns regarding the lack of public trust resulting from the secrecy of the FISA Court, which involves a non-adversarial proceeding where only the government’s views are heard and the opinions have been kept secret. As Benjamin Franklin stated, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” Members of Congress have likewise noted that the choice between security and liberty is a false one; civil liberties represent a cornerstone of the very American values Congress’ sought to defend in enacting provisions to enhance national security.

Even prior to these disclosures, the library community expressed reservations regarding legislation granting the government overly broad national security powers and urged necessary reforms to Section 215 and the national security letters (NSLs) program (which allows collection of data and communication without a warrant). These recommendations included, among others, requiring clear connections to a terrorist or spy for a valid order collecting information, greater judicial oversight and review of FISC decisions, prevention of bulk surveillance of categories of persons, rational limits on the scope of NSLs, and promotion of greater transparency.

Reform efforts are currently underway, some addressing changes previously advocated for by the library community. Last week, the House Judiciary Committee held a hearing examining proposed reforms to FISA, and tomorrow the Senate Judiciary will hold a hearing on reforms proposed by the Privacy and Civil Liberties Oversight Board (PCLOB). With Congress prepared to take an active, and likely swift, role in reforming statutes related to intelligence gathering, three bills show promise in better protecting privacy and civil liberties, promoting greater transparency, and restoring the public trust: the USA FREEDOM Act, the Intelligence Oversight and Surveillance Reform Act, and the Ending Secret Law Act/FISA Court in the Sunshine Act of 2013. The USA FREEDOM Act and Intelligence Oversight and Surveillance Reform Act are comprehensive bills, addressing not only transparency, but also the core issues regarding the collection of data.

USA FREEDOM Act

Representative Sensenbrenner (R-WI) and Senator Leahy (D-VT) introduced identical bills known as the USA FREEDOM Act, on October 29, 2013. The House bill, H.R. 3361, initially had seventy-eight bipartisan co-sponsors. As noted by Ranking Member Conyers (D-MI), the bill now has 130 supporters, with an even split between Republicans and Democrats. The Senate bill, S. 1599, now has nineteen bipartisan co-sponsors.

The USA FREEDOM Act would effectively end bulk collection of data currently collected by the NSA. The amendments proposed by the USA FREEDOM Act would permit the government to request only the records of that “pertain to” a “foreign power or an agent of a foreign power,” the records about the activities of such person under investigation, and records of individuals in contact with such person.

The bill would reform the NSLs program, which currently allows the FBI to request communication and other data without a warrant. The bill seeks to harmonize NSLs with the amendments proposed to the Section 215 program and is designed to prevent bulk collection of records.

With respect to the FISA Court, also known as FISC, the bill would create an Office of the Special Advocate, designed to advocate on behalf of interpretations that protect privacy rights and civil liberties and effectively ending the current ex parte proceedings wherein only the government’s view is heard. The Special Advocate would also be permitted to appeal FISC decisions. In addition to providing a voice for the public’s privacy rights, the USA FREEDOM Act would enhance transparency by requiring the government to make regular reports estimating the total number of individuals subject to FISA orders regarding electronic surveillance, pen registers, and business records. The bill would also direct the Attorney General to declassify decisions or summarize FISC decisions of significant interpretation, consistent with national security considerations.

The USA FREEDOM Act would not only promote greater transparency of FISC opinions and orders, but would also allow companies to publicly report the number of FISA orders and national security letters received and the number of users or accounts where information was demanded under such orders. It also places an obligation on the government to publicly report estimates of the total number of individuals and U.S. persons subject to FISA orders or NSLs.

The USA FREEDOM Act introduces a number of meaningful and necessary reforms.. This bill could be further improved, however, if it incorporated key elements of the USA PATRIOT Amendments Act of 2009, a bill that was introduced but never passed. That bill included several other reforms, including the prohibition of the use of Section 215 orders to obtain personally identifiable information about patrons from libraries, greater judicial review of both Section 215 orders and NSLs, and minimization procedures to ensure destruction of information obtained under national security powers once they are no longer relevant to an ongoing investigation.

Intelligence Oversight and Surveillance Reform Act

In September 2013, Senator Wyden (D-OR) introduced the Intelligence Oversight and Surveillance Reform Act. The bill now has thirteen co-sponsors, also with bipartisan support. Both the Intelligence Oversight and Surveillance Reform Act and the USA FREEDOM Act propose comprehensive reform to the surveillance programs. While the bills are not identical, many of the provisions are substantially similar and largely address the same issues, including effective prohibition of bulk collection under Section 215, harmonization of NSLs with the reforms to Section 215, providing special advocates in FISC proceedings, and greater transparency of FISC opinions and program’s collection of data.

Ending Secret Law Act/FISA Court in the Sunshine Act of 2013

Two bills designed to provide greater transparency of FISC orders, opinions and decisions (currently kept secret) were introduced into both the Senate and House. The Senate bill, Ending Secret Law Act, S.1130 was introduced by Senator Merkley (D-OR) and has bipartisan co-sponsorship. A nearly identical bill entitled FISA Court in the Sunshine Act, H.R. 2440, was introduced by Representative Jackson Lee (D-TX) and also has bipartisan support.

The bill would require the Attorney General to disclose each FISC decision and order, unless such opinion or order cannot be declassified without harming national security interests. If declassification is not possible, the Attorney General is directed to disclose a summary of the opinion. If a summary of the opinion is not possible, the Attorney General is required to make a report available to the public on the “status of the internal deliberations and process regarding the declassification.”

The Ending Secret Law Act/FISA Court in the Sunshine Act would provide greater transparency to FISC decisions and orders than the USA FREEDOM Act by requiring disclosure of each decision, order or opinion, not just those involving significant interpretations. Certainly, the reforms proposed by these bills are welcome as they promote greater transparency and enhance public debate surrounding the important intersection of security and civil liberties.

Observations from House Judiciary Committee Hearing on Surveillance and FISA Reforms

On February 4, 2014, the House Judiciary Committee held a hearing on “Examining Recommendations to Reform FISA Authorities.” The written testimony of the six witnesses and the statement of Chairman Goodlatte (R-VA) are available here. Ranking Member Conyers’ (D-MI) opening statement is available here.

The witnesses were divided into two panels. The first panel included James Cole (Department of Justice), Peter Swire (President’s Review Group on Intelligence and Communications Technology), and David Medine (Privacy and Civil Liberties Oversight Board). The second panel included Steven Bradbury (Dechert, LLP), Dean Garfield (Information Technology Industry Council) and David Cole (Georgetown University Law Center). The vast majority of the time and questioning from Members of Congress was spent on the first panel.

The focus of the hearing was on Section 215 of the PATRIOT Act (the section known as the library records provision under which the NSA claimed authority to collect bulk data of telephone records; this provision could also be used to obtain other “business records” including library records). Some questions also covered the Section 702 program, which targets non-U.S. persons. The majority of the Committee members appeared to support reforms to the program, with numerous members pointing to their support for the USA FREEDOM Act. Several members also focused on the need to restore trust amongst the American people.

During opening statements, Chairman Goodlatte noted that President Obama had not articulated how the bulk collection of telephony metadata had thwarted terrorist plots. He also questioned the President’s proposal to transfer the storage of bulk data to private companies, pointing to recent security breaches of Target and Yahoo!.

Ranking Member Conyers called the Section 215 bulk collection program ineffective, inconsistent with American values and inconsistent with the statutory language. He pointed out that Section 215 of the PATRIOT Act is scheduled to sunset on June 1, 2015 and if the bulk collection issue is not addressed, the Government risks losing Section 215 in its entirety. Conyers praised H.R. 3361, the USA FREEDOM Act, which has 130 House Members supporting the bill with an even split between Democrats and Republicans (Senator Leahy introduced an identical bill in the Senate), a point reiterated by several other members of the Judiciary Committee. The bill, among other things, would amend Section 215 to prohibit bulk collection and require showing a nexus between the business records sought and the person targeted.

First Panel

James Cole, Deputy Attorney General at the U.S. Department of Justice (DOJ), statement focused on President Obama’s January 17, 2014 speech laying out proposed reforms, including having third party storage of the bulk data, establishing an independent voice before the FISA courts, and establishing greater transparency. He also argued that the bulk collection of telephony metadata was constitutional and permitted under the PATRIOT Act.

Several members questioned Cole regarding the value of the bulk collection of telephone data and the appropriate metric in assessing its benefits. He repeatedly asserted that the program was useful and that pointing to the number of terrorist plots thwarted was not an appropriate metric in assessing the value of the Section 215 program, though Cole did not provide an alternative metric other than to call the program “helpful.”

Peter Swire of the President’s Review Group (PRG) gave an overview of the makeup of the review group and the scope of their report. He noted that while the Privacy and Civil Liberties Oversight Board had done legal analysis around the statutory language of Section 215 and the First and Fourth Amendments, this analysis was not undertaken by the President’s Review Group.

In response to criticisms regarding the risks of permitting third parties to house the bulk data, particularly in light of security breaches, Swire pointed out that the NSA has had leaks and all databases are at risk. He also noted that telephone companies already collect the data and requiring them to store such data would not create any new harms.

David Medine, Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), gave an overview of the conclusions of the recently issued report on Section 215, noting that PCLOB would be issuing a separate report on Section 702 in the coming months. He pointed to the PCLOB’s majority conclusion that the Section 215 program violated the statutory parameters of the PATRIOT Act, but also raised serious concerns regarding the First and Fourth Amendments. He noted that the benefits of bulk collection were “modest at best” and such benefits were outweighed by the concerns regarding civil liberties and privacy. The Board recommended termination of the Section 215 bulk collection program.

Medine also pointed out that the Administration’s interpretation of Section 215 takes an overly expansive view of the term “relevant.” He noted that Congress intended to put limits on Section 215 when it was created, but that these limits were ignored with an interpretation that “relevant” covered everything.

Representative Sensenbrenner (R-WI) pointed out that he was the principal author of the PATRIOT Act as well as its two reauthorizations (Sensenbrenner also introduced the USA FREEDOM Act into the House) and that the revelations about how Section 215 was being used were a shock, a sentiment later echoed by Representative Lofgren (D-CA). Sensenbrenner asserted that there was no way that the PATRIOT Act, as interpreted by the Administration, would have been approved or reauthorized if debated in Congress and that no fair reading of the Act could support the bulk collection of telephony metadata. When Cole stated that the DOJ had not taken a position on the USA Freedom Act, Sensenbrenner suggested that the DOJ quickly take a position because the Government is faced with a choice between the USA Freedom Act or having no authority when June 1, 2015 comes around and Section 215 expires. These sentiments were echoed by Representative Nadler (D-NY)

Representative Bachus (R-AL) seemed to be one of the few Committee members that did not want to see changes made to the program. He cited a letter by Judge John Bates, which expressed concerns in allowing a public advocate participate in FISA Court hearings.

Representative Lofgren (D-CA) asked what data, other than telephone data, could be collected. She asked whether credit card information or Internet browser cookies could be collected. Cole argued that not everything could be collected, only what was “necessary.”

Both Lofgren and Representative Issa (R-CA) asked whether the telephony metadata of Members of Congress had been collected. Swire said that to his knowledge, nothing had been screened out. Cole agreed that there was no reason to think otherwise, but argued that because the data had been collected into a database did not mean that it had been looked at. Issa also asked whether telephony metadata of the Executive Branch, including the President’s, as well as the records of the numerous embassies in the United States, had also been collected and Cole stated that he believed every phone number’s metadata was included in the database.

Representative Poe (R-TX) asked Cole to name a criminal case that had been filed as a result of the metadata program. Cole stated that there may be one material support case, but argued that the point of the statute was not to pursue criminal cases but to gather foreign intelligence.

Second Panel:

Steven Bradbury, attorney at Dechert, LLP and former head of the Office of Legal Counsel at the DOJ, argued that the NSA programs did not violate any statutory or constitutional laws. He argued that numerous FISA court judges had upheld the programs. He also asserted that all Members of Congress were informed about or had the opportunity to be briefed on the details of the Section 215 and 702 programs during their reauthorizations. He stated that the programs were critically important and argued against any changes, expressing disappointment with President Obama’s proposals to reform the programs.

Dean Garfield, President and CEO of the Information Technology Industry Council, pointed to the impacts that the revelations about bulk collection of data have had on the information and communications technology sector. He stated that the revelations about the programs had eroded trust in U.S. companies and the security of the data they collect. He also warned that forcing localized storage could result in “Balkinization” of the Internet. He advocated for greater transparency and oversight, as well as clarification of what Section 215 permits.

Some members raised concerns about how U.S. companies could be disadvantaged globally as a result of the NSA revelations, a point on which Garfield agreed. He noted that concerns included cost, storage concerns, and the public lack of trust, including the perception that companies are not independent from the U.S. Government.

David Cole, Professor of Constitutional Law and National Security at Georgetown University Law Center, expressed support for the USA FREEDOM Act. He pointed out that because of evolving technology, privacy law must be adapted in light of the increased ease of collecting massive amounts of data. He also argued against defenders of the NSA collection practices by pointing out that the former NSA general counsel had stated that metadata can reveal an enormous amount about a person’s life and with enough metadata, content is unnecessary.

Chairman Goodlatte questioned Bradbury, pointing to concerns about privacy when bulk data is collected. Bradbury responded that there were hypothetical concerns about abuse, but these concerns did not match the reality of the programs. He also pointed out that the Securities and Exchange Commission, Federal Trade Commission and Consumer Financial Protection Bureau also collect massive amounts of data and that the NSA should not be singled out.

Lofgren raised concerns regarding the expectations of privacy in the modern world. In response, Cole stated that the defining question is how to preserve the right to privacy in the face of new technologies and that it was the responsibility of Congress to address these issues. He said that without Congressional action, there is a risk of surrendering privacy to the digital age.

Representative Nadler called the FISA court a “kangaroo court” because of its one-sided and secretive nature. He pointed out that while technology evolves and metadata is collected, people still have an expectation of privacy. Cole then pointed out that the metadata collection programs were the same as issuing a general warrant.