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28–113 PDF 2018

S. HRG. 113–879 

CONTINUED OVERSIGHT OF 

U.S. GOVERNMENT SURVEILLANCE AUTHORITIES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

DECEMBER 11, 2013 

Serial No. J–113–42 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

KRISTINE LUCIUS, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

DECEMBER 11, 2013, 2:02 P.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 88 

WITNESSES 

Witness List ............................................................................................................. 39 

Alexander, Hon. Keith B., Director, National Security Agency, Fort Meade, 

Maryland ............................................................................................................... 5 

prepared joint statement .................................................................................. 40 

Black, Edward J., President and Chief Executive Officer, Computer and 

Communications Industry Association, Washington, DC ................................. 28 

prepared statement .......................................................................................... 50 

Cole, Hon. James M., Deputy Attorney General, U.S. Department of Justice, 

Washington, DC ................................................................................................... 7 

prepared joint statement .................................................................................. 40 

Cordero, Carrie F., Director, National Security Studies, and Adjunct Professor 

of Law, Georgetown University Law Center, Washington, DC ........................ 32 

prepared statement .......................................................................................... 76 

Litt, Hon. Robert S., General Counsel, Office of the Director of National 

Intelligence, Washington, DC .............................................................................. 9 

prepared joint statement .................................................................................. 40 

Sanchez, Julian, Research Fellow, Cato Institute, Washington, DC ................... 30 

prepared statement .......................................................................................... 66 

QUESTIONS 

Questions submitted jointly to Hon. Keith B. Alexander and Hon. James M. Cole 

by Senator Klobuchar .......................................................................................... 96 

Questions submitted to Hon. Keith B. Alexander by Senator Leahy .................. 91 

Questions submitted to Edward J. Black by Senator Grassley ........................... 98 

Questions submitted to Edward J. Black by Senator Klobuchar ........................ 97 

Questions submitted to Hon. James M. Cole by Senator Leahy ......................... 92 

Questions submitted to Carrie F. Cordero by Senator Grassley ......................... 99 

Questions submitted to Hon. Robert S. Litt by Senator Leahy ........................... 94 

Questions submitted to Julian Sanchez by Senator Grassley ............................. 100 

ANSWERS 

Responses of Hon. Keith B. Alexander and Hon. James M. Cole to questions 

submitted jointly by Senator Klobuchar ............................................................ 101 

[Note: At the time of printing, after several attempts to obtain 

responses to the written questions, the Committee had not received any 

communication from Hon. Keith B. Alexander to questions submitted by 

Senator Leahy.] 

Responses of Edward J. Black to questions submitted by Senator Grassley ..... 107 

Responses of Edward J. Black to questions submitted by Senator Klobuchar ... 105 

[Note: Responses of Hon. James M. Cole to questions for the record from 

Senator Leahy are classified and are, therefore, provided separately.] 
Page

IV 

Responses of Carrie F. Cordero to questions submitted by Senator Grassley .... 110 

[Note: Responses of Hon. Robert S. Litt to questions for the record from 

Senator Leahy are classified and are, therefore, provided separately.] 

Responses of Julian Sanchez to questions submitted by Senator Grassley ........ 114 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

Access et al., a letter on surveillance practices, November 21, 2013, letter ....... 118 

AOL et al., a letter on the USA Freedom Act, October 31, 2013, letter ............. 116 

AOL et al., an open letter to Washington, December 9, 2013, letter .................. 120 

attachment: Surveillance Reform Principles .................................................. 121 
(1) 

CONTINUED OVERSIGHT 

OF U.S. GOVERNMENT 

SURVEILLANCE AUTHORITIES 

WEDNESDAY, DECEMBER 11, 2013 

UNITED STATES SENATE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to notice, at 2:02 p.m., in Room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy, Whitehouse, Klobuchar, Franken, 

Blumenthal, and Grassley. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Okay. We can get started because I know with 

all the other things going on on the Hill, it is going to be a tad busy 

today. But I appreciate General Alexander, Mr. Cole, and Mr. Litt 

being here. 

We are going to be renewing our examination of Government surveillance activities, and it seems every time we have these, there 

has been a series of new revelations. The latest disclosures raise 

some significant questions about the scope and wisdom of our surveillance activities both at home and abroad. So it is clear that we 

have a lot more oversight work to do. 

In the last week, there have been press reports that the NSA is 

collecting billions of records a day of cell phone locations around 

the world and can track individuals and map their relationships. 

There have also been reports that the NSA is monitoring online 

video games, which just in the press reports raises a question: 

Because we can do something, does it really make sense to do it? 

Especially last month, the administration released a set of documents revealing details about yet another massive dragnet collection program in addition to the phone records program. And this 

time the NSA was gathering in bulk an enormous amount of Internet metadata under the pen register and trap and trace device authority in FISA. Now, I would just note that, just like Section 215, 

there is nothing in the pen register statute that expressly authorizes the dragnet collection of data on this scale. 

Although the Internet metadata collection program we are told 

is not currently operational, it resulted in a series of major compliance problems—just like the Section 215 program. According to the 

FISA Court, the NSA exceeded the scope of authorized acquisition 
2 

not just once or twice, but ‘‘continuously’’ during many of the years 

the program was in operation. Again, another reason why we 

should have a lot more oversight and a lot more open oversight 

than we do have. 

The problems were so severe that the FISA Court ultimately suspended the program entirely for a period of time before approving 

its renewal. But once renewed, the Government asserted that this 

bulk collection was an important foreign intelligence tool—which is 

the claim it makes now about the Section 215 phone records. But 

then in 2011 the Government ended this ‘‘valuable tool,’’ as they 

called it, this Internet metadata program because, as Director 

Clapper explained, it was no longer meeting ‘‘operational expectations.’’ 

It is important to note that the administration does not believe 

that there is any legal impediment to re-starting this bulk Internet 

data collection program if it—or a future administration—wanted 

to do so. The legal justification for this Internet metadata collection 

is troubling. As with the Section 215 program, the Internet 

metadata program was based on a ‘‘relevance’’ standard. And as 

with the Section 215 program, there is no adequate limiting principle to this legal rationale. The American people have been told 

that all of their phone records are relevant to counterterrorism investigations. Now they are told that all Internet metadata is also 

relevant and apparently fair game for the NSA to collect. 

In any country, this legal interpretation would be extraordinary. 

It goes beyond extraordinary in the United States. And it is going 

to have serious privacy and business implications in the future, 

particularly as new communications and data technologies are developed. 

So it should come as no surprise that the American technology 

industry is greatly concerned about these issues. I have heard from 

a number of companies who worry that their global competitiveness 

has been weakened and undermined. They say that American businesses stand to lose tens of billions of dollars in the coming years, 

and we need to make substantial reforms to our surveillance laws 

to rebuild confidence in the U.S. technology industry. This confidence can be thrown away very easily, and it is more difficult to 

get it back. 

Earlier this week, eight major technology companies—including 

Microsoft, Google, Apple, Facebook, and Yahoo—released a set of 

five principles for surveillance reform. Citing the ‘‘urgent need to 

reform Government surveillance practices worldwide,’’ the companies call for greater oversight and transparency, but they also advocate for limits that would require the Government to rely on targeted searches about specific individuals rather than the bulk collection of Internet communications from all of us. 

I have introduced the USA FREEDOM Act with Senator Lee 

here in the Senate, and our bill takes many of these steps. So I appreciate the support we have received from the technology industry, and I look forward to hearing their perspective on the second 

panel. 

Without objection, I will place in the record the open letter and 

reform principles from the technology companies, an earlier letter 

from technology companies applauding the USA FREEDOM Act, 
3 

and a supportive letter from a coalition of civil society organizations, companies, trade associations and investors. And without objection, they will be part of the record. 

[The letters appear as submissions for the record.] 

Chairman LEAHY. Support from the technology industry is representative of the broad-based, bipartisan support for our legislation. Organizations across the spectrum have endorsed the bill, 

from the ACLU to the NRA. I want to thank Senator Lee, Senator 

Durbin, Senator Blumenthal, and Senator Hirono for their cosponsorship. 

This is bipartisan, it is also bicameral legislation. It is a commonsense bill that makes real and necessary reforms. So I want input 

on the legislation, and I look forward to working on this in the 

coming months. I do want to thank our witnesses for being here 

today, especially after we had the unexpected cancellation in November. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Senator Grassley, I know you have half a dozen conflicts on your 

schedule. I thank you for being here. 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you. Of course, this is a very important hearing, and you are doing the right thing by having the hearing because this is a subject of ongoing media attention and a lot 

of constituent interest. 

We last held a hearing in early October. Since then, reports have 

continued to surface in the media about possible overreach on the 

part of Government. Some of the reports may be more accurate 

than others, but I continue to believe that many of them call into 

serious question whether the law and other safeguards currently in 

place strike the right balance between protecting our civil liberties 

and our national security. And that balance is a very important 

balance, but it is a balance that, for personal liberty as well as national security, both have constitutional implications. You cannot 

forget one or the other. 

This is especially so concerning the public revelation that under 

Section 215 of the PATRIOT Act, the Government is collecting 

Americans’ phone metadata in bulk. 

Why are many Americans so concerned? Well, it is not hard to 

find an example of what can happen to Americans’ personal information when the Government overreaches, mismanages, and fails 

the American people. 

It has been 2 months since the administration tried to bring the 

Obamacare website online, and the American people are suffering 

under that issue. Many are finding they cannot keep the insurance 

plans they liked. Their premiums are rising, and uncertainty is 

growing about which parts of the law the President will decide to 

uphold. 

But in just these few months, we have already seen reports of 

incidents where Obamacare has not adequately protected Americans’ personal data. In one reported instance in Minnesota, an insurance broker was accidentally provided the personal information 
4 

of 2,400 people. Moreover, there are many unanswered questions 

about the website’s ability to protect privacy going forward. 

Now, I expect—in fact, I understand that the standards of the 

dedicated professionals in our intelligence community do not compare to those of the contractors who failed to set up the website 

that I have referred to. But it is easy to see why many Americans 

tend to be skeptical then that the Government can adequately 

maintain their privacy when it collects vast amounts of information. 

The President’s disengagement on these important matters does 

not help. He claims he was unaware of the problems with the 

Obamacare website before it was launched. Now reports say he was 

unaware of the reported surveillance of many world leaders. 

As I did back in October, I call on the President to lead. Many 

of these programs are critical to our national security. The President needs to contribute to the national debate by publicly explaining and defending them. For instance, a visit to Fort Meade would 

help the morale a great deal. 

It is good that there are numerous reform proposals that this 

Committee will have the opportunity to consider going forward. I 

am convinced there is a role for greater transparency, oversight, 

and accountability in the FISA process. The public trust in our intelligence community must be rebuilt. And, of course, we must ensure that intelligence authorities are exercised in a manner consistent with our laws and the Constitution. 

These proposals should be subject to the same rigorous and critical examination to which we are subjecting the surveillance programs themselves. 

These proposals should address the specific concerns that have 

been brought to light, not relitigate old and irrelevant legislative 

battles. 

These proposals should not provide a terrorist abroad with rights 

similar to those of a U.S. citizen here at home. 

These proposals should not make it more burdensome for authorities to investigate a terrorist than it is to investigate a common criminal. 

And these proposals should not return us to a pre-September 

11th posture. Then we did not adequately weigh the dedication, intelligence, and lethality of our foreign enemies, who are undoubtedly watching the debate very closely. 

The balance between protecting individual liberties and our national security is a delicate one, and reasonable people can disagree 

about precisely where that balance must be struck, and that is our 

responsibility here in the Congress of the United States. 

Our witnesses on both panels today represent a wide range of 

views, and I look forward to hearing their point of view. And before 

you start, Mr. Chairman, I would like to explain further something 

you brought up that I had a conflict. At 2:30, Secretaries Kerry and 

Lew are briefing Senators about the classified details of the controversial nuclear agreement the Obama administration has made 

with Iran. I am skeptical of that agreement, but I have a responsibility to learn more about it. But I have to weigh going to that 

hearing to be here because I also, as leader of the Republicans, 
5 

know the importance of FISA and whatever work is done there for 

our national security as well. 

The Chairman did accommodate us to some extent by moving 

this ahead by a half-hour. I am going to stay beyond that half-hour 

anyway to ask questions, at least of the first panel. I had asked the 

meeting to be rescheduled, and it is the Chairman’s prerogative to 

lead this Committee as he sees the necessity to do it. But I think 

it is too bad that this could not be worked out so that Senators 

could attend both of these matters together. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Well, thank you, and I wish I could be at the 

other hearing, too, but we have had to reschedule this once already, and everybody has agreed to be here today, and I did not 

think it was fair to our witnesses to reschedule again. Besides, a 

lot of these classified briefings, like the one you just referred to, I 

have had to miss in the past because of conflicts, but I find I can 

usually read almost all of what was said there in the paper the 

next day anyway, usually in more detail. 

Senator GRASSLEY. I agree with you on that point. But also it 

kind of makes a mockery of what they call ‘‘secured.’’ 

Chairman LEAHY. Well, it depends upon whose ox is being gored, 

I guess. It is more of a question of who can get it out quickest. I 

do recall one of these very highly classified matters that we had, 

and the very first thing that came up marked top secret was a photograph of the cover of one of that week’s news magazines, and it 

went downhill from there. 

Our first witness is General Keith Alexander, Director of the National Security Agency and head of U.S. Cyber Command. He 

began his service at the U.S. Military Academy at West Point, previously served as the commanding general of the U.S. Army Intelligence and Security Command, and Director of Intelligence, U.S. 

Central Command. And, of course, one, General, I thank you for 

being here. Your full statement will be made part of the record, but 

in the time you have, please feel free to hit any points you want 

or summarize in any way you would like. 

STATEMENT OF HON. KEITH B. ALEXANDER, DIRECTOR, 

NATIONAL SECURITY AGENCY, FORT MEADE, MARYLAND 

General ALEXANDER. Chairman, thank you, and I will keep my 

opening remarks short, but I would like to hit a few key things. 

First, NSA is a foreign intelligence agency. Those action tools 

that we do are to connect what we know about foreign intelligence 

to what is going on here in the United States. We need tools to 

bring that together. I want to talk briefly about some of those tools. 

Some of those tools, like Section 215, in my opinion and I think 

in the Court’s, our community, were authorized by Congress. They 

are legal, they are necessary, and they have been effective. 

From my perspective, the threats are growing. When we look at 

what is going on in Iraq today, what is going on in Syria, the 

amount of people killed from 1 September to 3 December is over 

5,000 from terrorist-related acts in Iraq, Syria, and several other 

countries around the world. 

In Iraq alone, in 2012 the total number killed were 2,400. From 

1 September to 3 December, that has risen to 2,200-plus in a 3- 
6 

month period. It is on the verge of a sectarian conflict. The crisis 

in the Middle East is growing, and the threat to us from terrorist 

activities, their safe havens, and those being radicalized are growing. 

What we found out in 9/11—and I go back, Senator Grassley, to 

your comments—we cannot go back to a pre-9/11 moment. Sir, I absolutely agree with that. So we have to find out what is the right 

way for our Nation to defend ourselves and our allies and protect 

civil liberties and privacy. I think the way we are doing Section 215 

is actually a good model, not just for our country but for the rest 

of the world. It has the courts, Congress, and the administration 

all involved. 

Why do I say that? The reason is if you look at all the information that is out there, the billions and billions of books of information that are out there, there is no viable way to go through that 

information if you do not use metadata. In this case, metadata is 

a way of knowing where those books are in the library and a way 

of focusing our collection, the same that our allies do, to look at 

where are the bad books. 

From our perspective, from the National Security Agency’s perspective, what we do is get great insights into the bad actors overseas. Armed with that information, we can take the information, 

the to-from—and what I did is I put that on a little card. It says 

the from number, the to number, the date, time group of the call, 

and the duration. That is the elements of information we use in the 

215. There is no content. There are no names, no email addresses. 

From my perspective, that is the least intrusive way that we can 

do this. If we could come up with a better way, we ought to put 

it on the table and argue our way through it. 

The issue that I see right now is there is not a better way. What 

we have come up with is can we change one. 

But, Senator Grassley, you brought out a great point: 9/11, we 

could not connect the dots because we did not have this capability 

to say someone outside the United States is trying to talk to someone inside the United States. 

Chairman LEAHY. We also had people in the administration that 

refused to listen to FBI agents who had picked up on what was 

happening here in the United States when they were told it was 

not important, even though anybody with a brain in their head 

would have known it was. But go ahead. I understand your point. 

And let us stick to the facts. We are not talking about a library. 

I had my first library card when I was 4 years old. I understand 

libraries. Let us talk about the NSA. 

General ALEXANDER. Well, I think the important part for us, Mr. 

Chairman, is: How do you bring information that you know from 

outside the country to that which we have inside? How do you connect the dots? And that is the issue with the metadata program. 

There is no other way that we know of to connect the dots. 

And so that gets us back to, do we not do that at all. Given that 

the threat is growing, I believe that is, an unacceptable risk to our 

country. So what we have to do is can we do more on the oversight 

and compliance? And there are things that are being looked at. But 

taking these programs off the table from my perspective is absolutely not the thing to do. 
7 

I do agree with this discussion with industry, as well, that you 

brought up, Chairman. Industry ought to be a player in here. They 

have been hurt by this, and I think unfairly hurt. We ought to put 

this on the table from two perspectives. Industry has some technical capabilities that may be better than what we have. If they 

have ideas of what we could do better to protect this Nation and 

our civil liberties and privacy, we should put it on the table. And 

I think we should have a way of bringing Government and industry 

together for the good of the Nation, and we ought to take those 

steps. 

So, Mr. Chairman, I just want to end with this statement: We 

are a foreign intelligence agency. Our job is to figure out what is 

going on outside the United States and to provide that level of information to the FBI and others who are operating inside the 

United States. To date, we have not been able to come up with a 

better way of doing it. 

I am not wed, I do not think anybody at NSA or the administration is wed to a specific program, but we do need something to help 

connect the dots, something that could help defend this country. 

And I think these programs have been effective. 

That is all I have, Mr. Chairman. 

Mr. COLE. Thank you, Chairman Leahy, Ranking Member Grassley—— 

Chairman LEAHY. I should have done an introduction. I apologize. 

Mr. COLE. Quite all right. 

Chairman LEAHY. James Cole first joined the Department of Justice in 1979, served for 13 years in the Criminal Division. He later 

became Deputy Chief of the Division’s Public Integrity Section. Before entering private practice, he was sworn in as the Deputy Attorney General on January 3, 2011. 

Please go ahead, Mr. Cole. 

STATEMENT OF HON. JAMES M. COLE, DEPUTY ATTORNEY 

GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Mr. COLE. Thank you, Chairman Leahy, Ranking Member Grassley, and distinguished Members of the Committee, for inviting us 

here to talk about the Foreign Intelligence Surveillance Act. I am 

going to focus my opening remarks just on the 215 program. 

As has been mentioned, it involves the collection of metadata 

from telephone calls, including the number that was dialed, the 

date, and the time of the call and the length of the call. It does not 

include the content of any phone calls, any names, addresses, or financial information of any party to the call. And under 215 it does 

not include any cell site location information. 

The Government can search this data only if it has a reasonable, 

articulable suspicion that the phone number being searched is associated with certain terrorist organizations. Only a small number 

of analysts can make that determination, and that determination 

must be documented so it can be reviewed by a supervisor and 

later reviewed for compliance purposes. And only a small portion 

of these records actually end up being searched. 

This program is conducted pursuant to authorization by the 

FISA Court. Since the Court originally authorized this program 
8 

back in 2006, it has been reapproved on 35 separate occasions by 

15 individual Article III judges on the FISA Court. 

Oversight of the 215 program involves all three branches of Government. Within the executive branch, numerous entities in NSA, 

the Department of Justice, and the Office of the Director of National Intelligence are involved in assessing compliance. We report 

any compliance incidents to the FISA Court immediately. With respect to Congress, we have reported any significant compliance 

problems, such as those uncovered in 2009, to the Intelligence and 

Judiciary Committees of both Houses. Documents related to those 

2009 problems have since been declassified and have been released 

by the DNI. 

Over the past several months, we have also gone to great lengths 

to better explain publicly why the program is lawful. Under Section 

215, there must be reasonable grounds to believe that the records 

that are collected are relevant to an authorized investigation to 

protect against international terrorism. 

As both the FISA Court’s opinions and our own 22-page white 

paper explain, ‘‘relevant’’ is a very broad term. In its ordinary 

sense, information is relevant to an investigation if it bears upon 

or is pertinent to that investigation. Courts have held that large repositories of information can satisfy a relevance standard where 

the search of the whole repository is necessary in order to identify 

the critical documents. This is precisely the rationale that 

underlies the 215 collection program, and it was recognized by the 

FISA Court. 

The Court found that the entire collection of bulk metadata is 

relevant to an authorized international terrorism investigation because it is necessary, a necessary part of the process to allow NSA 

to identify phone calls between terrorists and other persons. 

As Judge Eagan’s recent opinion reauthorizing the program recognized, and I quote, ‘‘Because the subset of terrorist communications is ultimately contained within the whole of the metadata produced but can only be found after the production is aggregated and 

then queried using identifiers determined to be associated with the 

identified international terrorist organizations, the whole production is relevant to the ongoing investigation out of necessity.’’ 

In addition to complying with 215, NSA’s program must also 

comply with the Fourth Amendment of the Constitution. Here the 

Supreme Court’s decision in Smith v. Maryland is directly on point. 

In Smith, the Court held that telephone users who convey information to phone companies for the purpose of routing their calls 

have no reasonable expectation of privacy in that information. 

Now, the Smith case was a number of years ago, and some have 

questioned the applicability of it because it did not concern a situation where the Government collected and retained the bulk 

metadata and aggregated it all in one place. However, a recent 

opinion of the FISA Court addressed this specific issue, and it 

noted, ‘‘Where one individual does not have a Fourth Amendment 

interest, grouping together a large number of similarly situated individuals cannot result in the Fourth Amendment interest springing into existence.’’ 

I understand that there is interest in legislating reforms to the 

215 program and other aspects of FISA, including the nature of the 
9 

Court process itself. We welcome this public debate and this public 

discussion about whether the current version of 215 and other provisions of FISA strike the right balance between our national security and the privacy of our citizens, both of which are important 

and have to be honored. We look forward to working with the Committee to address these issues and to find the right balance. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. Thank you very much, Mr. Cole. 

And our last witness on this panel will be Robert Litt, confirmed 

by the Senate in 2009 to serve as General Counsel of the Office of 

the Director of National Intelligence. Prior to joining the ODNI, he 

was a partner with the law firm of Arnold and Porter, worked at 

the Department of Justice, and has testified before this Committee 

before. Welcome back, Mr. Litt. 

STATEMENT OF HON. ROBERT S. LITT, GENERAL COUNSEL, 

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, 

WASHINGTON, DC 

Mr. LITT. Thank you, Mr. Chairman, Ranking Member Grassley, 

Members of the Committee. We do appreciate the opportunity to 

appear today to continue our discussions about the intelligence activities that are conducted pursuant to the Foreign Intelligence 

Surveillance Act. 

It is critical to assume that the public dialogue on this topic is 

grounded in fact rather than in misconceptions, and we, therefore, 

understand the importance of helping the public to understand how 

the intelligence community actually uses the legal authorities provided by Congress to gather foreign intelligence and the extent to 

which there is vigorous oversight of those activities to ensure that 

they comply with the law. 

As you know, the President directed the intelligence community 

to make as much information as possible available about certain intelligence programs that were the subject of unauthorized disclosure, consistent with protecting national security and sensitive 

sources and methods. Since that time, the Director of National Intelligence has declassified and released thousands of pages of documents about these programs, including court orders and a variety 

of other documents. We are continuing to do so. These documents 

demonstrate both that the programs were authorized by law and 

that they were subject to vigorous oversight, as General Alexander 

said, by all three branches of Government. 

It is important to emphasize that this information was properly 

classified. It has been declassified only because in the present circumstances the public interest in declassification outweighs the national security concerns that originally prompted classification. 

In addition to declassifying documents, we have taken significant 

steps to allow the public to understand the extent to which we use 

the authorities in FISA going forward. Specifically, as we describe 

in more detail in the written statement that we submitted for the 

record, the Government will release on an annual basis the total 

number of orders issued under various FISA authorities and the 

total number of targets affected by those orders. Moreover, we recognize that it is important for companies to be able to reassure 

their customers about how often or, more precisely, how rarely the 
10 

companies provide information to the Government. And so we have 

agreed to allow the companies to report the total number of law enforcement and national security legal demands they receive each 

year and the number of accounts affected by those orders. We believe that these steps strike the proper balance between providing 

the public relevant information about the use of these legal authorities while at the same time protecting important collection capabilities. 

A number of bills that have been introduced in Congress, including the USA FREEDOM Act, which you have sponsored, Mr. Chairman, contain provisions that would require or authorize additional 

disclosures. We share the goals that these laws and bills provide 

of providing the public with greater insight into the Government’s 

use of FISA authorities. However, we are concerned that some of 

the specific proposals raise significant practical or operational concerns. 

In particular, we need to make sure that any disclosures are 

operationally feasible with a reasonable degree of effort, and that 

they would provide meaningful information to the public. We also 

need to make sure that the disclosures do not compromise significant intelligence collection capabilities by providing our adversaries 

information that they can use to avoid surveillance. 

But, Mr. Chairman, I do want to emphasize our commitment to 

work with this Committee and others to ensure the maximum possible transparency about our intelligence activities consistent with 

national security. We are open to considering any proposals so long 

as they are feasible and do not compromise our ability to collect the 

information we need to protect our Nation and its allies. And we 

have been in discussion with the staff of this Committee and the 

Intelligence Committee on some proposals and some alternate 

means of trying to provide greater transparency while protecting 

our critical sources and methods. 

We look forward to continuing to work with you in this regard. 

Thank you. 

[The prepared joint statement of General Alexander, Mr. Cole, 

and Mr. Litt appears as a submission for the record.] 

Chairman LEAHY. Thank you, Mr. Litt. 

Normally I would ask questions at this point, but I am going to 

yield first to Senator Grassley, who does want to make the other 

briefing. Senator Grassley. 

Senator GRASSLEY. Yes, and I appreciate very much that accommodation. 

Mr. Cole, back on October 2nd, I wrote a letter to the Attorney 

General requesting information about cases of willful and intentional abuse of authority by NSA employees. Some of them were referred to the Justice Department for prosecution. I would like to 

know whether these cases were prosecuted and, if not, why not. I 

asked for a response by December 1st. Do you know the answers 

to these questions? And if not, when would I be able to expect an 

answer? 

Mr. COLE. I do not know the specific answers on each of the ones 

you cited, Senator Grassley, but we are in the process of collecting 

that information. A number of them were not prosecuted. A number of them involved the risk of further damaging the national se-
11 

curity by having to release more information. Other sanctions were 

found that were adequate in those cases. But we are trying to put 

together that information so that we can give you an assessment 

of what happened in those cases. 

Senator GRASSLEY. I thank you for that courtesy. 

Mr. Cole, I want to make sure that I understand the administration’s positions on the USA FREEDOM Act. In your prepared testimony that bill is not specifically mentioned, but in your testimony 

you state that the administration ‘‘does not support legislation that 

would have the effect of ending the . . . 215 program’’ because the 

administration maintained that it is lawful and valuable to protect 

national security. The answer may be obvious, but I want to be 

clear for the record. Do you understand the USA FREEDOM Act 

to be ‘‘legislation that would have the effect of ending the Section 

215 program’’ that you described in your testimony? 

Mr. COLE. Senator, you have kind of asked me a legal question. 

I am going to have to give you a bit of a lawyer’s answer. It is 

going to depend on how the court—if the USA FREEDOM Act becomes law, it is going to depend on how the court interprets any 

number of the provisions that are in it and any number of the additional requirements that are contained in it over what is here and 

now. I think it will have an impact on what is currently done under 

215, but 215 covers more than just bulk data collection. It covers 

individualized Business Records acquisition. And depending on 

what kinds of records are being sought, what the facts and circumstances are, will depend on the nature and extent of the FREEDOM Act’s impact on it. 

On the bulk data, I think it is going to be a question of the 

court’s interpretation. Right now the interpretation of the word 

‘‘relevant’’ is a broad interpretation. Adding ‘‘pertinent’’ to a foreign 

agent or somebody in contact with a foreign agent could be another 

way of talking about relevance as it is right now. We would have 

to see how broadly the court interprets that, or how narrowly. 

Senator GRASSLEY. I appreciate your legal view. Just from the 

standpoint of how our process of legislation works and since the 

President is Commander-in-Chief, the number one person in charge 

of our national security, I would hope that we would have a firm 

statement from the administration of whether or not this legislation is harmful or not, and it would be better to know that before 

courts get a decision, which would be years down the road, than 

it would be now. And I think that the administration owes that to 

all of us, both proponents and opponents, of what that situation is. 

My other question to you as well, other than 215, the USA 

FREEDOM Act would also make other significant changes to the 

tools used to investigate terrorism and espionage cases. For example, the bill would raise the legal standard to issue national security letters to require that the information sought be both relevant 

and material as well as the information pertained directly or indirectly to a foreign power or an agent of that power. This is a 

change from the current standard, which is mere relevance. 

Question: What operational effect, if any, will these changes have 

on the ability of your Department and the FBI to protect the Nation from terrorist attacks? 
12 

Mr. COLE. Senator Grassley, probably the largest effect that it 

would have on the NSL situation is the addition of the requirement 

that it be relevant to or there is information that it is connected 

to a foreign power. Many times NSLs are used in a very preliminary stage of an investigation in order to determine if the person 

who is being looked at is, in fact, a foreign power or an agent of 

a foreign power. And so the question is sometimes being answered 

through the use of national security letters. If you must answer 

that question before you can get a national security letter, it would 

reduce the availability of that tool in terrorism investigations. 

Senator GRASSLEY. Thank you, Mr. Chairman. And I have two 

questions that I will submit for answer in writing—can I ask one 

more? 

Chairman LEAHY. Certainly. 

Senator GRASSLEY. Mr. Litt, one of the issues this Committee has 

been looking at is whether or how to add more of an adversarial 

element in the FISA Court process. The Chairman invited a former 

FISA Court judge to be a witness at our hearing in July. Judge 

James Carr explained in his answers to questions for the record 

that he did ‘‘not believe that having independent counsel review all 

Government applications before the FISC would be necessary or desirable.’’ This appears to be an approach reflected in the legislation 

that was passed by the Senate Intelligence Committee. In contrast, 

as I understand it, the FREEDOM Act requires the Government to 

provide every application to the advocate. 

Question: Between the different advocates proposals in the USA 

FREEDOM Act and the Senate Intelligence Committee bill, which 

do you believe is a better approach to making the FISA Court process more adversarial? And why? 

Mr. LITT. So, Senator Grassley, since the Department of Justice 

is the agency that really conducts the litigation before the FISA 

Court, I am going to defer the answer to that to Deputy Attorney 

General Cole, although I will say that there has been a lot of interagency discussion about the appropriate approach there, which I 

think he can lay out. 

Senator GRASSLEY. Okay. 

Mr. COLE. Senator Grassley, as I think we have said on a number of occasions, we find that there is a use and a value to having 

an independent legal representative in the FISA Court process in 

the appropriate circumstances. We would not advocate or recommend having one for all of the procedures that go on there. 

Many of them, like in normal criminal cases, are routinely done in 

an ex parte basis. They are done usually with a fair degree of expediency and efficiency, and we think a permanent public advocate 

might impede that process some of it is applying to every single 

thing that is there. There would also be, I think, some constitutional issues of standing for a public advocate on every single issue. 

We would propose that it be an amicus appointed by the Court. 

When the Court feels that they have the need for another perspective and another point of view, when it is a significant issue involving privacy issues, civil liberty issues that the Court would like to 

have another view on, that would be a good example of a time. 

Something like the bulk data collection programs where somebody 
13 

may want to have a view of what the law is other than the Government’s view, we think that would be a good area. 

But I think the Court is in the best position to determine when 

and where it is going to need those kinds of things and do it only 

for those issues. 

Senator GRASSLEY. General Alexander, it will take you 5 seconds 

to answer this question. At our hearing in July, your Deputy Director testified that the NSA was conducting an investigation into how 

so highly classified information was compromised by a single contractor. He stated the NSA would report back to Congress about individual and systemic responsibilities of what occurred. When can 

we expect that report? 

General ALEXANDER. We will send that up right away. We have 

actually taken 41 different actions, and we will get you a report on 

what those are. 

Chairman LEAHY. What is ‘‘right away’’? 

General ALEXANDER. Over the next week. 

Chairman LEAHY. Okay. So we will have it by Wednesday. 

Senator GRASSLEY. Thank you, Mr. Chairman. 

General ALEXANDER. Next Wednesday. 

Chairman LEAHY. By then. Thank you. 

Senator GRASSLEY. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. 

Going back to the penultimate question about 215 phone records 

and FISA Courts or FISC courts and so on, it has been said these 

have always been authorized, and they have never been up on appeal. We have never had an appellate court rule on them. The bill 

that I have does not require an advocate in every FISA Court case. 

It would be only when the Court agreed that it might be helpful. 

We also have statements from judges that, if that was the case, 

there may be more credibility with the courts, or at least more of 

a willingness on the part of the public to accept courts that operate 

in secret. 

Would you agree with that, Mr. Cole? 

Mr. COLE. I think that that would help the public have better 

confidence. I think the Court does run well. I think there is a great 

deal of independence from my experience with the Court in its rulings. It is not by any means a rubber stamp. But I think there is 

a value with the public to having some other person, some other 

advocate in the appropriate kinds of cases, and I think there is a 

value to that, Senator, Mr. Chairman. So I think that is a good 

idea as long as we keep it in the right matters. So I would agree 

with that. 

Chairman LEAHY. And Senator Klobuchar will submit her questions for the record, and I would ask them to be answered as quickly as possible. 

[The questions of Senator Klobuchar appears as a submission for 

the record.] 

Chairman LEAHY. Now, we get in these press accounts that the 

NSA is collecting billions of cell phone location records every day 

and is reportedly gathering information or communications information from online gaming sites. The stories suggest the activities 

are directed abroad. We know the NSA was making plans to obtain 

cell site location information under Section 215. We also know that 
14 

the NSA engaged in bulk collection of Internet metadata under the 

FISA pen register statute. So it suggests to me that under that 

kind of a legal interpretation of FISA, the NSA could collect the 

same massive amounts of information domestically that these recent stories suggest they are collecting abroad. 

So, Mr. Litt, maybe I should direct this first at you. I know the 

program authorized the bulk collection of email and other Internet 

metadata was shut down in 2011 because it was not operationally 

useful. But under current law, would the NSA be able to restart 

the bulk collection of Internet data? 

Mr. LITT. I think that if the NSA and the Department of Justice 

were able to make a showing to the FISA Court that the collection 

of Internet metadata in bulk, which, of course, is a category of information that is not protected by the Fourth Amendment, that if 

it were relevant to an authorized investigation and could convince 

the FISA Court of that, then, yes, it would be authorized. 

Chairman LEAHY. It was shut down before because of not being 

operationally useful. Would you have to go to the Court? 

Mr. LITT. I believe we would have to—— 

Chairman LEAHY. To restart the bulk collection of Internet data, 

would you have to go to the Court? 

Mr. LITT. I believe we would. 

Chairman LEAHY. Mr. Cole? 

Mr. COLE. Yes, Mr. Chairman. Under the FISA statute, I think 

you would have to get Court authority, just like you would under 

215, to be able to do that, and that would only last for a period 

of time and have to be renewed periodically. So there is no active 

authority for it right now. 

Chairman LEAHY. Thank you. And setting aside any technological limitations, would the FISA pen register statute authorize 

you to obtain all Internet metadata, not just email metadata? 

Mr. COLE. I think that is correct, but, again, it would be limited 

to the metadata in that regard. 

Mr. LITT. And if I could just add on that—— 

Chairman LEAHY. If I can just make sure I understand Mr. 

Cole’s answer. So the only limitation would be that it be metadata? 

Mr. COLE. It cannot be content. It cannot be—and the latest 

order of the FISA Court under 215, it specifically excluded cell site 

location as well. 

Chairman LEAHY. Thank you. 

Mr. LITT. I was going to add only that you would have to show 

that the category of metadata that you are seeking was, in fact, relevant to the authorized investigation. 

Chairman LEAHY. Okay. Well, Mr. Cole, you talked about the 

legislation that Senator Lee and I have talked about to update the 

Electronic Communications Privacy Act. We want to require in 

criminal matters—I am talking about just criminal matters now— 

that the Government obtain a probable cause warrant to gain access to the contents of electronic communications that are stored by 

a third-party provider. Section 215 of the USA PATRIOT Act requires the Government to show only relevance to an authorized intelligence investigation in order to obtain records. I am not talking 

about bulk collection but the more standard usage of 215. 
15 

Has Section 215 ever been relied upon to obtain the contents of 

stored communications from a third-party provider? 

Mr. COLE. Not that I am aware of, Mr. Chairman. 

Chairman LEAHY. Mr. Litt? 

Mr. LITT. I am hesitant to give an answer to that just because 

it is not a question I have ever asked. I would prefer to get back 

to you on that, sir. I just do not know the answer sitting here. 

Chairman LEAHY. Can you get back to me by the end of the 

week? 

Mr. LITT. I will try. 

Chairman LEAHY. If they have not, as a legal matter, could Section 215 be used to obtain the contents of communication? 

Mr. COLE. I would have to think about that, considering that it 

is limited to the types of information you can get with a grand jury 

subpoena. I would have to look—because of the aspects of stored 

communication and things of that nature, I would have to check. 

But I am not sure—I would have to go back and look at that. So 

without a check of the legal authorities, I will get back to you on 

that, Mr. Chairman. 

Chairman LEAHY. And I appreciate you checking those. I think 

you understand by the question I—— 

Mr. COLE. Yes. 

Chairman LEAHY. There are some serious legal ramifications to 

your answer. 

Mr. COLE. I agree. 

Chairman LEAHY. Well, good. 

Chairman LEAHY. I am going to yield to Senator Franken, but, 

General Alexander, you talked about using—and I will get to you 

in my next round—about going to the private sector looking for 

best practices from them. You can imagine I am going to ask if 

those best practices had been used, would a 29-year-old subcontractor have been able to walk away with all your secrets like Mr. 

Snowden did. 

Senator Franken. 

Senator FRANKEN. You are going to ask that in the next round? 

Chairman LEAHY. Sure, but—— 

Senator FRANKEN [continuing]. Do you want it answered now? 

Chairman LEAHY. No. That is okay. I do not want to take—you 

have been waiting patiently. I will wait my turn. 

Senator FRANKEN. Well, okay. General, you will have plenty of 

time to think about that, except I have a question for you, so we 

will see if you can do both at the same time. 

I have a bill, too, called the Surveillance Transportation Act that 

I think you are all familiar with. Among other things, General Alexander, the bill would require NSA to tell the American people 

how many of them have had their communications collected by the 

NSA. Do you think that the American people have the right to 

know roughly how many of them have had their information collected by the NSA? 

General ALEXANDER. I do, Senator. I think the issue is how do 

you describe that. Those that are under a court order—so under 

FISA, as you know, to collect the content of a communication, we 

have to get a warrant. The issue would be almost in the Title III 

court. Do you tell someone, a U.S. person, who may not be a U.S. 
16 

citizen, that we are tracking them here in the United States or that 

we have identified that? 

Senator FRANKEN. I am not suggesting that you have to tell people they are being surveilled, that they personally are a suspect. 

What I am saying is, do the American people have a right to know 

how many American people have had their information collected? 

That is a different question. I was not suggesting we tip people off 

that are suspects. 

General ALEXANDER. Yes. So I think in broad terms, absolutely, 

and let me give you an example. 

Senator FRANKEN. In broad terms? 

General ALEXANDER. Yes. So, for example, under 215 today, less 

than 200 numbers are approved for reasonable, articulable suspicion, are being searched in that data base. 

Senator FRANKEN. Two hundred. 

General ALEXANDER. Numbers. 

Senator FRANKEN. People—that is 200 orders or 200 people? 

General ALEXANDER. Two hundred numbers. Some of those numbers may be multiple numbers per person. Those numbers could be 

both foreign and domestic. In fact, they are. But that is the total 

number for that category for Section 215 today under that program. 

The other one that I think—and I think the Deputy Attorney 

General mentioned, is we can also put out more about what we are 

doing under the FAA 702 program, that we have compelled industry to do in a more transparent manner. The issue is how do we 

do that without revealing some of our own capabilities. And we are 

working through the interagency to get resolution on that. 

Senator FRANKEN. Okay. I am being told by staff that that is actually the number of people that have had their phone numbers 

searched, not collected. Right? 

General ALEXANDER. So under 215, all the data is going into a 

repository. 

Senator FRANKEN. Metadata. 

General ALEXANDER. Metadata. So, if, for example, I am talking 

to a foreign terrorist, my number would automatically hit that link. 

In fact, you probably would want to know that. 

Senator FRANKEN. Right. 

General ALEXANDER. I know the White House would. 

Senator FRANKEN. We need to know that. 

General ALEXANDER. That is right. So the issue would be how 

many of those. What we would do is we would look at those and, 

based on our analysis, give those numbers that are appropriate to 

the FBI for them to then go through their appropriate process to 

look at those numbers. 

Senator FRANKEN. Okay. There is a difference between collected 

and searched, but that is—okay. But let us talk about 702. That 

is supposed to target non-Americans, right? Foreign persons? 

General ALEXANDER. Reasonably believed to be outside the 

United States. 

Senator FRANKEN. Right. Are Americans—shouldn’t the American people know how many Americans have gotten caught up in 

that? 
17 

General ALEXANDER. That again is—and I do not mean to hedge. 

Let me just tell you the difficulty. If a terrorist that we are going 

after is talking to another person, in that communication there is 

nothing that says, ‘‘I am an American, and here is my Social Security number.’’ So the fact is when we are tracking a terrorist, if 

they are talking to five people and one of those is American, 

chances of us knowing that are very small. 

If we find out that it is an American, then there are procedures 

that the Attorney General and the courts have given us that we 

have to do to minimize that data on that American. 

Senator FRANKEN. Okay. Well, I guess my question is that my 

bill calls for the NSA to report how many Americans’ information 

has been searched, has been looked at by agents. And I am not 

talking about necessarily a precise number, but 702 says that it 

can only look at non-Americans. And, look, my feeling is this: that 

the American people are skeptical of executive power. 

General ALEXANDER. Right. 

Senator FRANKEN. That when there is a lack of transparency, 

they tend to suspect that something—they tend to be very skeptical 

and suspect abuse. And part of the reason to have transparency is 

for people to be able to make their decisions based on some real 

information about whether or not this power is being abused or 

not. 

Now, I believe that you gentlemen have our national security at 

interest—that is your interest. That is your interest. But I also believe that—you know, you keep saying there are three—there is 

oversight from all three branches of Government. We are one of the 

branches, and we are doing the oversight. Okay? 

General ALEXANDER. We are feeling it. 

Senator FRANKEN. And my feeling doing the oversight is that I 

would be more comfortable and that the American people would be 

more comfortable and feel that they can decide for themselves, if 

they knew how many Americans were being caught up in a program like 702 that is designed by law not to target Americans. 

General ALEXANDER. So I think, Senator, absolutely. But I would 

just put into this that what we are going to do is, if asked to do 

that, we are going to give you faithfully and truthfully that which 

we know. And my concern would be, 2 days later, we find out that 

was also an American, so we could report that later, but we are not 

going to—do you see what I mean? 

Senator FRANKEN. Because what I am talking about in my legislation is not a precise number. It is a range. 

General ALEXANDER. Yes. 

Senator FRANKEN. And what I have been told by ODNI is that 

producing this estimate would be very difficult. But I do not think 

it would be that difficult. 

General ALEXANDER. So it may be. I would just offer, Senator, to 

have you come up and we could sit down and show you this and 

then come up with perhaps a reasoned way to do that, because I 

do think—actually, I agree with you. I think this is the right thing 

to do, because the number is not that big. And I think if we could 

explain it to the American people, and you as one of our three elements of our Government could say, ‘‘Here is what we see, and 

here is what the administration sees, and here is what the courts 
18 

and all three of us together see, that is the best number we can 

come up with.’’ When you see that, when the American people understand that, they will know we are doing this right. So I agree 

with you. 

Senator FRANKEN. I see Mr. Litt, whom I know quite well—we 

have discussed this a lot—sort of jumping out of his seat. 

Mr. LITT. No. I am firmly planted, sir. 

Senator FRANKEN. Okay. Well, eager to answer, and that is why 

I am afraid I have run out of—no, I am sorry. Go ahead. 

[Laughter.] 

Senator FRANKEN. Go ahead. I see that you are—I have never 

seen him this eager, frankly. 

Mr. LITT. Mr. Chairman, if I might for a minute, this is a good 

example of the kind of thing I was talking about in my opening remarks. I think we all agree that the question you pose is a reasonable one, which is, How many Americans are being caught up in 

this? 

The problem is trying to find a way to provide that information 

in a manner that is both operationally feasible and does not compromise sources and methods. We have got some ideas in that regard. They are not fully fleshed out yet. We do want to work with 

your staff and see if there are ways we can arrive at something 

that will give at least some sort of reasonable proxy that gives 

Americans an idea of what the impact of this surveillance is. 

Senator FRANKEN. Thank you. I am glad I have got this answer 

today because this has been part of my discussions with ODNI 

where you said that this may be too difficult to do. But it sounds 

like we have got a little bit of movement on this. 

I wanted to ask a question about what you were referring to, Mr. 

Chairman, about location information. But I really am way over my 

time. 

Chairman LEAHY. You may go ahead. 

Senator FRANKEN. Thank you for your indulgence. 

This is on the capacity issue. General Alexander, in a hearing— 

let me go beyond that. Last week, The Washington Post asked an 

intelligence official speaking on the record to estimate how many 

Americans had had their location information collected by the NSA. 

The official answer: ‘‘It is awkward for us to try to provide any specific numbers.’’ Right after he said that, the article says that an 

NSA spokesman interrupted the conversation to change that answer. 

Do you believe it is difficult for this administration to estimate 

how many Americans have had their information collected, or do 

you think it is awkward? 

General ALEXANDER. I think it is difficult, but I think we are 

walking by each other. If I might explain? 

Senator FRANKEN. Okay. Good. 

General ALEXANDER. Under the Business Records FISA, there 

was a series of questions on cell site location information that Senator Wyden and others had asked, and we have walked down that 

road. As you know, that is one that the Court said, ‘‘We are not 

doing that. We do not do that.’’ There has been a few records that 

were done to check to see if technically it could be done. That was 

the first set of issues on the Business Records FISA. So there is 
19 

no cell site location data under Business Records FISA that we are 

using today, period. 

Second, if an American travels overseas and his communications 

are collected, the chances are in that collection we may not know 

that that has been collected, that it was an American person; but 

the chances are if you collect A, you will probably get the cell site 

location with that because that is something that is also collected. 

The issue would be how many of those have been collected, and the 

answer is we are really not looking for that. It may have been collected because they talk to—you know, as we use—and I do not 

mean any of these people are bad. I am just using this—— 

Senator FRANKEN. You seem to point to them a lot. 

[Laughter.] 

General ALEXANDER. I just want you to be careful because they 

are right behind you. But I am concerned, Senator, that in that 

case we will not know at all who are the Americans and who are 

not in those issues for the same reasons as before. But what we 

can tell you is I think good numbers on those that we target overseas that are Americans under those procedures that we have. We 

can give you those numbers, 703, –4, and –5 that fall into that. 

And I think that is perhaps what we are really looking for. Does 

that make sense? 

Senator FRANKEN. Yes. Thank you. And, Mr. Chairman, thank 

you for your indulgence. I also want to go down to the briefing. 

Thank you, gentlemen. 

Chairman LEAHY. Say hello to everybody for me. 

Senator FRANKEN. I will. 

Chairman LEAHY. General, to go back to the question I asked, 

and not facetiously, I assure, when you said that your work with 

private industry on proving techniques and so forth, and I assume 

you would. Let us go back to the Snowden case. As you know, I 

have expressed grave concerns about how a 29-year-old subcontractor can come walking in and that your system of checks and 

balances and all was not good enough to stop him from walking out 

with a huge amount of data. I see something similar, although a 

different type of data, when our own State Department and Department of Defense put huge numbers of highly classified and 

highly sensitive cable traffic from some of our embassies into one 

location where a private first class, I believe he was, was able to 

go in and take it all out on a Lady Gaga CD. And we know the 

enormous, enormous problems caused to our diplomacy and the security of a lot of Americans and our allies because of that situation. 

I have never found anybody to say what we ever gain by putting 

all that material in one place. 

So now we go to the Snowden case. Whether somebody thinks he 

is a hero or a villain is not so much the question as it is, I think 

we can all agree, that a lot of the material that has been released 

because of him has been very damaging to the United States. It 

has certainly been damaging to our allies, our relationships with 

our allies. 

I realize, as you and others do, that some of our allies have said 

how terrible it is we are doing this. It has to make one think of 

the scene in the movie, ‘‘Casablanca’’: ‘‘I am shocked, shocked, to 

see this going on,’’ knowing that they are doing very similar things. 
20 

But having said that, there were things that created grave problems for us. 

So my question is: First, can you say with confidence that you 

now have checks and balances at NSA to stop something like this 

happening again? And, second, has anybody been disciplined at 

NSA for dropping the ball so badly? 

General ALEXANDER. So, first, Chairman, on the checks and balances and the things that we have done, that is the 41 different 

actions that I discussed for Senator Grassley that our technology 

director is using. That does employ best industry and best practices 

that we have and has drastically improved that capability. 

Chairman LEAHY. These are subsequent to the Snowden—— 

General ALEXANDER. That is correct. This is all since the 

Snowden thing. This gets into compartmentalizing and encrypting 

data to creating communities of interest. And we do have three 

cases that we are currently reviewing, working our way through, 

that I do not want to prejudge given my position. 

Chairman LEAHY. I understand. 

General ALEXANDER. That we will fully inform this Committee of 

action that we have taken once that action is complete. So we are 

doing that. 

Chairman LEAHY. Now, first off, whether it is 41 steps or 35 or 

whatever, I would hope that this makes it better. The obvious question comes up: Why were these steps not taken before? Was it because there is a sense of confidence that we are the NSA, we will 

not make a mistake? Or was it just—well—— 

General ALEXANDER. Well, actually, Chairman, the reason it happened is his job was to move data. He was the person who was to 

move the books from Point A to Point B. He was the SharePoint 

server, Web server administrator. His job was, in fact, to do what 

he did. And therein lies part of the problem. 

We had one individual who has the responsibility to move that 

data who betrayed that trust. We believed that they would execute 

that duty faithfully and in a manner that everybody had agreed 

should be done. 

Chairman LEAHY. To use your analogy, General, let us say I run 

a company that sells millions of dollars worth of diamonds, and I 

am going to have to transfer them from my warehouse in this State 

to my warehouse in this State. Now, am I negligent if I say, well, 

look, we have got this 29-year-old subcontractor, here are the keys 

to the car, the truck that carries all these diamonds, get them 

there safely; by the way, here is a map? Or is it better off that I 

have two or three people who check on how it gets there? 

General ALEXANDER. So prior to this event, it was standard that 

one person would do one job, and he would have back-up help, and 

you would have oversight of that. But in doing that job, it is very 

difficult, if not impossible, to see that person replicates a copy of 

what he took. A little bit different than in the diamond case, but 

your point is well taken. You would not give the guys the key to 

the car to drive your diamonds across State—especially when you 

did not know. In this case what we have done is we have input a 

two-person rule just like you would for that for these specific 

issues, and you will see that in parts of the write-up. 
21 

I would also point out one of the notes I got, from the WikiLeaks 

we were already implementing the WikiLeaks issues that had been 

found through the interagency process. So we were implementing 

that. This specific vulnerability that he exploited was not found in 

the WikiLeaks area. And there were some specific things that I 

would prefer not to go into here because—— 

Chairman LEAHY. Can I suggest that there are still going to be 

people out there who are going to want to find more things? Would 

we both agree on that? 

General ALEXANDER. Absolutely. 

Chairman LEAHY. I think we would also agree that the vast majority of people who work with you—and I do believe this—are very 

honest and would not want to do anything to betray the country 

they serve. Is that correct? 

General ALEXANDER. Absolutely, Chairman. 

Chairman LEAHY. Thank you. 

We talked about the legal standard for bulk collection programs, 

and that is one thing. The other thing is, do we really need to be 

collecting massive amounts of data on innocent Americans to keep 

us safe? Just simply because you can do something, does it make 

sense to do it? 

We had a question on an entirely different matter before this 

Committee once when I had raised the question about road blocks 

being set up by our border people in Vermont on one of our interstate highways about 40 or 50 miles from the Canadian border. 

And they said with great enthusiasm, well, over a period of X 

amount of time, they found four or five illegal immigrants and collected X amounts of marijuana and some cocaine. I said, ‘‘Wonderful.’’ They spent a huge amount of money and set up this road 

block, inconveniencing everybody. I said, ‘‘Look how much more you 

could collect if we set up those road blocks on every single bridge 

coming into Washington, DC, in the morning. A couple hundred 

thousand, 100,000, 200,000 people come in from Maryland, same 

number from Virginia and West Virginia, unless we have something, a cataclysmic thing like 2 inches of snow, and then, of 

course, we have to close.’’ In Vermont, anything under 5 inches of 

snow is called a ‘‘dusting.’’ But I digress. But the fact it—— 

[Laughter.] 

Chairman LEAHY. But not much. The fact is if we set up those 

kind of road blocks, we would collect hundreds of illegal immigrants. We would collect huge amounts of illegal drugs and probably other contraband. Would we do it? No. I mean, the place 

would come to a screaming halt, and there would be those people 

who are totally innocent and all who might be screaming about it, 

including Chairs of various oversight committees. 

But my point is we have already established that the Section 215 

phone records collection program was uniquely valuable in just one 

terrorism-related cases, not the 54 that have been talked about before. The NSA shut down a bulk collection program related to 

Internet metadata because it was not meeting operational expectations. And I was concerned to learn that the NSA has never done 

an assessment of the effectiveness about collection under Section 

702 despite the fact the program mistakenly led to the warrantless 

collection of thousands of domestic emails, including their contents. 
22 

We can do a huge amount, but then at some point you have to ask, 

What do we get out of it? 

So, General, I would ask you this: Shouldn’t the NSA assess the 

utility of its various collection methods in a systematic way, especially if they pose a risk of obtaining Americans’ communications? 

The question would be very simple if we were talking about going 

into everybody’s home to look at their letters and their files and 

their most personal things. But somehow we are looking at it differently because it is out there electronically. 

General ALEXANDER. Senator, Chairman, that was exactly why 

under the Pen Register/Trap and Trace the email metadata program, when we looked at that, we—and I was the key NSA official 

to say this program does not meet the operational requirements for 

the amount that we are putting in, and we recommended to the 

DNI and the White House that we stop that and inform Congress. 

So we made that operational decision based on what we got for 

what we put into it to what it cost us. 

We did the same, we are doing the same on the Business Records 

FISA, the metadata program, and we looked at that. Here is the 

issue, quite candidly, that I am wrestling—— 

Chairman LEAHY. You are doing that now in the PRTT? 

General ALEXANDER. We did the PRTT back in 2011 when we 

stopped that program, and that was based on my recommendation 

based on working with our people to look at what we are doing. 

Chairman LEAHY. Did you find any terrorism plots it helped 

thwart? 

General ALEXANDER. With the Pen Register/Trap and Trace? I 

will have to go back and get you the specifics on that. That will 

take more than Wednesday, though, but I will get you that answer. 

Chairman LEAHY. Okay, because I am thinking, when Deputy Director Inglis testified, there was only one time where Section 

215—— 

General ALEXANDER. Right, so that is Section—now we are going 

to 215. The issue that I have on 215 and why I am so concerned, 

I agree that what Congress, the courts, and the administration 

have given us here is extremely intrusive taken in its whole. But 

the way we have put the oversight and compliance and the regimen 

that we have around it and the oversight by the courts, the administration, and Congress ensure that we are doing this right. And 

the frequency that we look at that, less than 200 numbers now approved, and less than 300 for all of 2012, from my perspective that 

shows that we are being judicious in how we do it, there is oversight by all three branches of the Government, and complete 

auditability on every action that we do. 

We do not have a better way of doing this, so that goes into that 

question of industry. So my question is: I do not know a better way 

to do it, and I am being completely candid. I am concerned with 

all that our country is going to face that we will have failed the 

Nation if an attack gets through. 

And so you have asked us to do that. I cannot think of a better 

way. I think this is where industry—do they have a better way of 

doing it? We ought to put it on the table and argue that through 

all branches of the Government. Nobody has come up with a better 

way. 
23 

And so that is my concern with the metadata program that we 

have today. I cannot think of a better way. It is like holding on to 

a hornet’s nest. You know, we are getting stung. You have asked 

us to do this for the good of the Nation, to defend the Nation, to 

get the intelligence we need. Nobody has come up with a better 

way. If we let this down, I think we will have let the Nation down. 

So that is why I am concerned. 

Chairman LEAHY. General, I realize the world changes, but I 

think back to my days as a young prosecutor, and without going 

into war stories, I remember when as a member of the Executive 

Board of the National DA’s Association, we had a meeting with 

J. Edgar Hoover, and four or five of us there, we went across the 

spectrum politically. We were all chilled by what we heard from 

him: his disregard of the Constitution, his willingness to do 

things—he explained to us there was no such thing as organized 

crime in America, even though, of course, there was a massive organized crime operation at that time. But we had to fear Communists. He even suggested to us that The New York Times and 

its editorial policy was very close to becoming a Communist newspaper and he was about to investigate it as such. I am serious. I 

am always thinking what it would have been like if he had had the 

power that you and the NSA have. 

I had a friend who died in the Towers on 9/11. I think about that 

all the time. I think of my wife, who was a medical-surgical nurse 

at Arlington Hospital, going there, even though she had retired, to 

volunteer to help with any wounded coming from the Pentagon and 

being told there were no wounded. You were either alive and walking or you were dead. There was nothing in between. These things 

sear in your mind. You do not want this to ever happen again. 

But I also think of the J. Edgar Hoover type thing, and I think 

as an American it is very easy to go to another country and complain to them about their police state—and I am not suggesting 

that that is what you are, but their ability to go and listen in on 

everybody, search everybody. We give up a lot of our privacy in this 

country, and frankly I worry about giving up too much. And can 

we be totally secure? Of course we cannot. You cannot be totally 

secure going out to dinner in the evening from some random shooter who is not even aiming for you. 

So, I mean, I look at the administration declassifying a number 

of FISA Court opinions, and they get credit for doing that, but 

there has been no release of any FISA Court opinion from the 2006 

time period containing legal and constitutional analysis of the Section 215 phone records program. Is that because it did not exist or 

it has not been declassified? And I ask this question—and I will let 

Mr. Cole give me an answer to that at some appropriate point. But 

I really feel that our oversight has not been adequate or that so 

much of it is done secretly that it is too easy to say if you knew 

what we knew, you would not ask us questions. And I worry as 

technology gets greater and greater, the temptation, whether it is 

this administration or the next administration or the administration after that, to people to misuse it. 

So I know I have been critical of these things. I hope none of you 

take it personally. But as a Vermonter, I am very concerned about 

my privacy and everybody else’s. 
24 

Did you want to add anything, Mr. Cole or Mr. Litt or General? 

Mr. COLE. Mr. Chairman, you know, I think that we are all concerned to make sure that we get this balance right and that an important part of that balance is transparency to the American public, keeping their trust in what we are doing, making sure that 

while doing that we do not compromise our abilities to be able to 

use classified techniques that will help keep them safe. But that 

is—there is a tension between those two, and there always has 

been. And finding that right balance is always something that is 

difficult, but it is our job. And it is our collective job in all three 

branches of Government, including with oversight from the U.S. 

Congress as a very important part of that. 

So I think the path that we are on now is very much the one that 

you are describing of trying to make sure that we find that line and 

find that balance of giving the information that we can give, providing the transparency while maintaining the operational integrity of what we are doing. We should not be saying to you, particularly from an oversight function, if you only knew what we knew, 

you would say we are doing fine. We should be in a position to be 

able to tell you what we are doing. 

Mr. LITT. Mr. Chairman, if I can just add a couple of points 

there. The first is that, as I am sure you know, there is nobody in 

the intelligence community today who operates on the assumption 

that you ascribed to J. Edgar Hoover before, ‘‘I do not care what 

the Constitution says.’’ Everybody is singularly focused on ensuring 

that we comply with the Constitution and the law. And as you 

know, in all the material that has come out, there has been no suggestion of any willful abuse or violation of privacy of people. The 

compliance violations that have occurred have been technical, they 

have been unintentional, but nobody has been out there attempting 

to illegally spy on Americans or anything else. 

But the other point I want to make is sort of a more philosophical one, because the point you raise about worrying about the 

next person is, of course, something that was a concern all the way 

back to the Framers of the Constitution, which is why they set up 

the Constitution with checks and balances, to try to ensure that 

the innate tendency of human beings with power to seek to abuse 

that power is checked. And that is what we have tried to accomplish within the intelligence community with the degree of oversight that we have, the number of people who are looking over 

other people’s shoulders, the number of reports that have to be 

done, the technological controls that we have in place. 

As General Alexander said earlier, if there are ways we can do 

that better, we are open to that. We would like to ensure that there 

is oversight that is sufficient to persuade the American people that 

we are doing the right thing on their behalf. But we do think it 

is important that in considering what to do, we do not throw out 

the baby of national security with the bath water of oversight. 

Chairman LEAHY. And if there are better ways of doing things, 

if there is any silver lining in the Snowden matter, I understand 

from General Alexander’s testimony that you are taking the steps 

to make sure that colossal mistake would not happen again. 

Mr. LITT. We are going to do our best. 
25 

Chairman LEAHY. General. And then after you speak, General, 

I am going to turn the gavel over to Senator Whitehouse because 

he is a nicer person than I am. Go ahead. 

General ALEXANDER. Chairman, first, two things. As you correctly stated, there was one unique case under 215 where the 

metadata helped. There were seven others where it contributed and 

four where it did not find anything of value, and we were able to 

tell the FBI that. 

Now, that last part, ‘‘of value,’’ I want to point that out. This 

summer there was a big issue on terrorism that we all went 

through. This program actually helped us understand was that focused on the United States or elsewhere? We used that program to 

determine none of those leads were coming into this country, and 

we were able to focus our efforts elsewhere, which really helped 

both the intelligence community and the FBI in that case. 

The second part, you know, I have been in this job for a little 

over 8 years, and my experience from dealing with the people that 

we have, dealing with Congress, the courts, and the administration 

on this, is our folks take the Constitution to heart. We see this as 

two roles: defend the Nation and protect our civil liberties and privacy. Everybody at NSA, including myself, takes an oath to that 

Constitution, that we will support and defend the Constitution. 

And you know the rest of that. 

And I would tell you that the oversight we have, especially by 

the courts, ensures that what happened that you brought up will 

not happen here. From my perspective, we have great oversight in 

this program, and at times I complained that the oversight was so 

robust that it was crippling. But now you can see that everything 

that we have done, all the things that have come out were either 

self-reported or brought out. They were not revealed by Snowden. 

We had already reported those incidents. I think you can see that 

we are acting well and faithfully to discharge those duties. 

Just to correct one thing, to add to what Bob said, there have 

been no willful or intentional violations under the 215 or 702. As 

you do know, there were 12 under Executive Order 12333. In both 

cases, all the violations that we know about we have self-reported. 

Some of those we knew would be significant. We brought them up 

to the White House, to the DNI, to the Department of Justice, to 

the courts, and to Congress. We made a mistake. These were not 

intentional. They were significant. And you have read the court 

things and you have read some of those. But from my perspective, 

I think what we should take great pride in the fact is this agency 

in every case reports on itself, tells you what it did wrong, and does 

everything we can to correct it. 

Chairman LEAHY. Thank you. 

Senator Whitehouse, would you take it from here? And I apologize to the next panel that I am going to—I may not be able to get 

back. I am going to try to—do you want to take this seat here? 

Senator WHITEHOUSE [presiding]. Sure. I will do that when the 

panels shift, but let me just take a little bit of time myself right 

now with this panel before they are excused. 

First of all, we are at a time where we have entered a new technological era, the era of big data, and I will loosely and unprofessionally define ‘‘big data’’ as the ability to aggregate enormous 
26 

amounts of information that do not get looked at and then figure 

out ways, once they are aggregated, to search for things in that big 

heap of data. And that raises questions about whether the aggregation is a search or whether it is not a search until a human being 

actually asks a question and actually the information gets to another human mind. And some of these are pretty difficult questions 

that we have to work our way through, and so I think the attention 

that the Committee is paying to this is a very sensible attention. 

But our national intelligence establishment is not the only group 

that is playing in this big data area. We all know that Google and 

other private sector providers are very, very actively in big data, 

data mining, and doing things like that. 

What can you tell me about what other governments are doing 

without specifying names and releasing any national security information? I take it that other foreign sovereigns are doing very aggressive things in this space to try to pull as much information as 

they can as well out of the cloud and out of the capacities of big 

data. Who would like to take that? General. 

General ALEXANDER. Senator, I have some experience in that. In 

my opinion, none of them have the oversight by all three branches 

like we do, either their parliaments, congress, their courts, and 

their administration. 

Senator WHITEHOUSE. Understood, but my point is they are all 

out there doing it. 

General ALEXANDER. They do. 

Senator WHITEHOUSE. And that if we were to—well, of the ones 

who have capability, a lot—the most powerful ones all do. 

General ALEXANDER. That is right. 

Senator WHITEHOUSE. And if we were to pass a law that prevented our intelligence and defense establishment from operating 

in that big data atmosphere, we would be essentially unilaterally 

disarming in an arena in which other governments are very active. 

Is that true? 

General ALEXANDER. That is true. In fact, I think some have likened it to, because we have a powerful intel community or powerful 

Navy, we would tell our submarines to surface in those areas 

where people do not—their subs are not as good. 

Senator WHITEHOUSE. And the actual collection of data in the 

sense that it is brought to the awareness of a human mind somewhere has to be overseen very scrupulously. And as I understand 

it, this operation is overseen by multiple inspectors general, multiple general counsels, multiple Federal executive agencies. NSA 

connects in ways that provide varying levels of visibility, but in 

most cases complete visibility to our Department of Defense; to the 

FBI, to the Department of Justice, Jim; to the ODNI, the Office of 

the Director of National Intelligence; to the President; to the National Security Council. So there is considerable attention that is 

being dedicated to this. We have a court that is dedicated to this 

that reports to the Supreme Court. We have this legislative Committee, the Senate Intelligence Committee, and the House Committees. 

So it is hard for me to think of whatever we might do to add to 

the level of oversight, I think we may make it more efficient and 

effective. But I do not want anybody to leave this hearing thinking 
27 

that we kind of just leave this question to the NSA. We have built 

a system in which every branch of Government and within those 

branches of Government in many cases multiple different agencies, 

and in some cases within those agencies multiple different and in 

some cases independent sectors, all compete to have a look and to 

make sure that the right things are being done. 

So I will let you all go. I appreciate what you are doing. I understand that we need to get this right. But I think it would be a mistake to unilaterally walk away from the realm of big data to protect our national security when we are perfectly comfortable with 

private companies doing that to make money and to find out more 

about us so they can market to us better, and when foreign governments are energetically penetrating this space in order to accomplish similar results. And I think nobody should leave this hearing 

not aware that the layers of oversight and checking and doublechecking and triple-checking that are done here are very, very rigorous and considerable. I know you have to live with that all the 

time. If you would like to make any closing comment to that, I will 

let you do that. But otherwise I will let you go. 

Mr. COLE. I think you have summarized it very well, Senator. 

Senator WHITEHOUSE. All right. Well, we will leave it with that, 

and I appreciate very much you all being here. Thank you for your 

service to our country. 

General ALEXANDER. Thank you, Senator. 

Senator WHITEHOUSE. And we will take a minute and call up the 

next panel. 

It was hard to get Bob Litt out of here, Professor. He loves it so 

much being in front of us. 

All right. Let me ask the panel to stand to be sworn. Do you affirm that the testimony you are about to give to this Committee 

will be the truth, the whole truth, and nothing but the truth, so 

help you God? 

Mr. BLACK. I do. 

Mr. SANCHEZ. I do. 

Professor CORDERO. I do. 

Senator WHITEHOUSE. Please be seated. I am delighted to welcome our second panel on this important issue, and I will go right 

across the table and ask each of you to make your opening statements, and we will do collective questions at the end. We may be 

rejoined by a number of my colleagues. This is the time that the 

administration briefing on Iran is taking place in the classified 

area, and so obviously that is of interest. 

We will start with Ed Black, who has been the president and 

CEO of the Computer and Communications Industry Association 

since 1995. He previously served as Chairman of the State Department’s Advisory Committee on International Communications and 

Information Policy, and he worked as chief of staff and legislative 

director for two Members of Congress. 

Mr. Black, welcome. Please proceed. 
28 

STATEMENT OF EDWARD J. BLACK, PRESIDENT AND CHIEF 

EXECUTIVE OFFICER, COMPUTER AND COMMUNICATIONS 

INDUSTRY ASSOCIATION, WASHINGTON, DC 

Mr. BLACK. Thank you very much for the opportunity to be here. 

Thank you, Senator Whitehouse. 

This is an important subject. I want to start out by just pointing 

out that 16 years ago the White House charted a course for a vibrant Internet economy in the perceptive Magaziner Report, the 

first U.S. Government policy statement addressing the needs of 

Internet commerce. That policy statement correctly identified user 

trust as the foundation of Internet commerce. It noted: ‘‘If Internet 

users do not have confidence that their communications and data 

are safe from unauthorized access or modification, they will be unlikely to use the Internet on a routine basis for commerce.’’ 

That may sound rudimentary today, but we should not take for 

granted decades of progress in creating security and fostering user 

trust, and we should not discount how easily that foundation can 

be damaged. 

The broad NSA surveillance regime and the way it has been received internationally has harmed U.S. companies, U.S. competitiveness, and the Internet itself. The U.S. Government must be 

proactive in addressing these concerns. The status quo is no longer 

an option. If we do not act, we will put at risk our economic security and undercut our diplomatic ability to influence the future of 

the Internet. Therefore, Mr. Chairman, CCIA supports the USA 

FREEDOM Act, and we look forward to working with the Committee and staff on this important piece of legislation. 

A healthy global Internet is a source of American competitive advantage. The U.S. ITC has documented a growing digital trade surplus. Our global competitiveness is not just good for commerce, it 

is an essential component of our long-term national security. 

The Internet does not only benefit the U.S., however. The open 

Internet provides great global commercial benefits. The Internet 

economy in G–20 countries is expected to reach $4.2 trillion by 

2016. Estimates show that 21 percent of economic growth in mature economies over the past 5 years is attributable to the Internet. 

Traditional industries are the beneficiary of 75 percent of the 

economic value derived from the Internet. Thus, we should not underestimate the Internet’s role in global economic development, 

which in turn has its own security benefits for the United States 

and the rest of the world. 

The NSA’s practices clearly impact the business of U.S. Internet 

companies. So much of online commerce today is fundamentally 

based on trust. If users are going to turn over very sensitive personal and confidential information to a company providing online 

email or other cloud services, they need to believe that the company will act as a responsible steward of their data. Although traditional debate on the utility of overbroad NSA surveillance has focused on hard-power arguments, one must not overlook the effect 

on soft power. 

It is important to recognize the dramatic effect these revelations 

have had on our international diplomatic authority, particularly in 

regard to the future of Internet governance. Last year’s WCIT conference showed us that there was deep international division over 
29 

whether to subordinate the open Internet to the political machinations of world governments, including repressive regimes. The U.S. 

needs to be a beacon for freedom and openness in this battle. 

Given these risks, we propose: enhanced transparency and procedural reform; clearer protection for Americans; and baseline protections for international users. 

With regard to transparency and procedural reform, we think all 

governments should share with citizens meaningful information 

about their surveillance laws, their legal interpretations, and the 

judicial procedures that govern the exercise of this powerful authority. Of course, the U.S. cannot demand this from others until 

it leads by example. 

Furthermore, companies should be permitted to disclose publicly 

to their users the precise volume of requests from governments. 

Businesses should not only be permitted to release transparency 

reports but encouraged to do so. We categorically reject the notion 

that open government will cause undue damage to security. Transparency in criminal surveillance has been the norm for years and 

does not appear to have materially affected law enforcement. 

In order to present a robust check on the Government, the FISC 

must also evolve to include a committed and well-resourced advocate to provide an alternative viewpoint, particularly in situations 

involving novel questions of law. 

Second, focusing on protections for Americans, Federal laws addressing the circumstances in which the Government may collect 

Americans’ data for national security purposes are badly in need of 

reform. Bulk collection of metadata is one area where that is most 

obvious, as it reveals a great deal of sensitive private information. 

Furthermore, important First Amendment rights of association are 

implicated by the Government assembling its own version of your 

social network for their own analysis. The USA FREEDOM Act addresses this problem by explicitly prohibiting this type of bulk collection both on the Internet and on telephone networks, and that 

is one of the reasons we are supporting it. 

Third, and finally, protections for foreigners. A difficult subject to 

deal with, but despite the global interconnected nature of the Internet, U.S. national security policy continues to presume U.S. citizens deserve protection from unwanted surveillance, while others 

do not. If foreigners lack baseline privacy assurances, foreign competitors will supplant U.S. leadership in Internet innovation and 

digital commerce, thus undermining strategic economic and other 

security interests. This is especially true going forward, as foreign 

markets are increasingly important. 

Thank you very much for the opportunity to testify. I look forward to your questions. 

[The prepared statement of Mr. Black appears as a submission 

for the record.] 

Senator WHITEHOUSE. Thank you very much, Mr. Black. 

Our next witness is Julian Sanchez, who is currently a research 

fellow at the Cato Institute focusing on the intersection of technology, privacy, and civil liberties, with a focus on national security 

and surveillance issues. He previously served as the Washington 

editor for a technology news site and has written for a wide array 

of publications. 
30 

Mr. Sanchez, welcome. 

STATEMENT OF JULIAN SANCHEZ, RESEARCH 

FELLOW, CATO INSTITUTE, WASHINGTON, DC 

Mr. SANCHEZ. Thank you, Senator Whitehouse. It is a privilege 

to address this Committee. 

I want to begin by suggesting that if we step back from the details of the disclosures of recent months, we find a disturbing pattern across multiple programs and authorities emerges. I will focus 

in particular on the telephony metadata program, the now defunct 

Internet metadata program under the pen/trap authority of the PATRIOT Act, and upstream collection under Section 702 of the FISA 

Amendments Act. 

In each of these cases, what we see is that extraordinary but 

nevertheless limited authorities were secretly interpreted in ways 

that permitted far more extensive collection than certainly members of the general public and even, I think, many legislators believed at the time of passage had been authorized. This was done 

in part because the FISA Court, which was established on the 

premise that it would be authorizing and find probable cause in 

cases of specific and traditional targeted surveillance, instead 

found itself in the position of addressing broad programs of surveillance, often involving novel legal or technological issues that it is 

not clear that body was well established to consider. 

In the metadata cases, these interpretations took the form of an 

unprecedented reading of relevance that held entire databases containing information about millions of admittedly innocent Americans to be relevant on the grounds that a fishing expedition 

through those records might ultimately turn up evidence that 

would not otherwise be detected in the absence of some specific 

grounds for suspicion that is probably true, but it is, of course, true 

of any fishing expedition and defeats, I think, the purpose of the 

relevance requirement if that argument is allowed to go through. 

There is no real limiting principle in that argument for any type 

of records, and I was particularly disturbed to hear earlier Mr. Litt 

refuse to reassure us that the scope of the records obtainable under 

Section 215 does not exclude the contents of digital communications or cloud-stored documents. 

It is also particularly troubling to see this applied in the case of 

the Internet metadata program because in that case the, in my 

view, shortsighted holding of Smith v. Maryland was applied as it 

referred to metadata generally, which is certainly not a term we 

find in the 1975 decision, when in this case it involved email 

metadata that is not ever stored as Business Records or usually 

even processed by the Internet backbone providers from whom it 

was presumably obtained. So there is kind of an additional constitutional question in that case, I think. 

In the case of 702, we know the Supreme Court relied on a recent ruling in Amnesty v. Clapper on representations that only 

communications to or from specific overseas targets were being 

intercepted. We have now learned, of course, that also communications referring to overseas targets would be intercepted, and that 

in many cases for technical reasons a single email meeting selection criteria would lead to the entire inbox of the communicant 
31 

being obtained, including, again, potentially entirely domestic 

emails on what the Court believed could be a scale of many tens 

of thousands per year under that one collection program. 

In each case, additionally we learned that for months or years, 

the actual technical details of how these programs operated were 

misrepresented to the FISA Court, which was, of course, therefore 

not able to effectively conduct oversight; and that in each case, 

again, elaborate safeguards and restrictions imposed by the FISA 

Court as a condition of authorizing those programs were effectively 

neglected because of the vast scale and complexity of those programs. 

Additionally, in many cases we found that the claims of efficacy 

made at the time do not appear to have held up well over scrutiny 

from many dozens of foiled terror plots we have gotten down, in the 

case of the telephony metadata case, to really one instance involving funding and material support where it appears to have played 

some uniquely valuable role. 

Given the limitations again imposed by the FISC, it is not clear 

why more traditional targeted orders could not have been used 

without incidentally sweeping in millions of innocent persons’ 

records. 

We are assured that the problems detected with these programs 

have not been willful or intentional. This is not especially comforting to me for several reasons. 

The first is that if we look to history, we find that, in general, 

abuses of intelligence powers were committed by people who were 

well aware of the oversight mechanisms in place who often took 

elaborate steps to game those restrictions. In the cases of Bradley 

Manning and Edward Snowden, we know that it was—you know, 

steps were taken to evade oversight mechanisms in the case. We 

know that certainly happened many times in the past. And it is 

why abuses went undetected for so long. 

Additionally, the scale of collection itself makes abuse more difficult to detect and less likely to be detected when it does occur. 

I think of the case of illegal wiretaps of the Southern Christian 

Leadership Conference’s office. That at least was halted by an Attorney General who found the suspicious fact that the wiretap existed and there was a record of it. When you are doing collection 

on this scale, the mere existence of communications or records 

about an innocent party are not themselves that kind of essential 

indicator. 

Finally, and most generally, I would just encourage the Committee to think architecturally. We should not authorize extraordinary architectures of surveillance on the basis that we now have 

great confidence in the probity of the persons controlling the levers. 

James Otis, whose condemnation of the Writs of Assistance was 

part of the inspiration for the Fourth Amendment, condemned 

those writs, saying that it is ‘‘from their mere existence that every 

householder in the province becomes less secure.’’ And there is a 

sense in which, while they may serve some role in protecting us 

against foreign attacks, we are less secure when the Government 

maintains vast databases on Americans without particularized suspicion. 

I thank you and I look forward to your questions. 
32 

[The prepared statement of Mr. Sanchez appears as a submission 

for the record.] 

Senator WHITEHOUSE. Thank you, Mr. Sanchez. 

Our final witness is Professor Carrie Cordero—whose bio I have 

just mislaid, but I am sure you can get me another one very quickly. Thank you. 

She is an adjunct professor of law and the director of National 

Security Studies at the Georgetown University Law School. She 

has previously held several national security-related positions with 

the Department of Justice and the Office of the Director of National Intelligence, and she has also testified before this Committee 

before. 

So welcome back, Professor, and please proceed. 

STATEMENT OF CARRIE F. CORDERO, DIRECTOR, NATIONAL 

SECURITY STUDIES, AND ADJUNCT PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC 

Professor CORDERO. Mr. Chairman, thank you very much. 

Thanks for the opportunity to return to the Committee. 

Since the October hearing, the conversation, I would suggest, has 

shifted somewhat from where it first was. First, I would suggest 

that the conversation has evolved from objections to specific programs to a discussion of our understanding of and tolerance for foreign intelligence surveillance activities more broadly. 

Second, the legislative proposals are coming closer to scaling 

back national security legal authorities in a way that might make 

the country back to pre-9/11 standards. 

And, third, the path forward on authorized public disclosure in 

a way that is responsive to the concerns of the private sector remains a worthy goal, but still a significant challenge. 

With respect to the telephony metadata collection under the 

Business Records provision of FISA, an argument increasingly is 

regarding the power of metadata, and basically this argument is 

that metadata is a very powerful tool and can reveal an awful lot 

about us, and there should be limits on the Government’s collection 

and use of it. 

I do not disagree with the general proposition, but the problem 

with the argument made in the context of the debate on 215 is that 

the worrisome assemblage of Americans’ metadata bears no relation to the existing 215 program that Congress is currently considering. The 215 program does collect an enormous volume of Americans’ telephone call detail records, but the collected information 

does not appear to include content of phone calls, names of subscribers, payment information, or location information. The vast 

majority of it is never viewed by human eyes and the records are 

handled under court order rules. 

So of the arguments that Congress should outlaw bulk collection 

altogether, for better or for worse, everyday Americans use the 

Internet to communicate. We all, regular people, Government leaders, as well as those who are national security threats, use the 

Internet, computers, and smartphones to communicate. And so just 

as everyday citizens should not be expected to revert to using only 

the Postal Service and landlines, neither should the intelligence 

community or law enforcement have to resort to pen, paper, and 
33 

index cards to conduct national security collections or investigations. It is just as unrealistic to expect citizens to unplug as it is 

to expect or require the NSA or the FBI to use 20th century collection, analytic, or investigative techniques to protect the Nation 

from 21st century threats. 

A few observations on S. 1599, the USA FREEDOM Act that has 

been submitted. Sections 101 and 201, which change the legal 

standards in FISA to obtain Business Records and implement pen 

register/trap and trace devices by requiring a connection to a foreign power, to an agent of a foreign power. 

The sections also add a materiality requirement. The likely intended effect of these provisions is to eliminate the 215 bulk telephony metadata program. But the proposed changes would likely 

have far more reaching consequences for traditional, day-to-day investigations. The standards are currently aligned on the national 

security side with investigative authorities in the criminal context, 

which operate on a relevance standard. By raising the standard, 

these sections would render these investigative techniques nearly 

useless in the early stages of an investigation, which is precisely 

when they are most useful. These changes could return us to the 

days prior to September 11th, when it was harder to conduct a national security or international terrorism investigation than it was 

to conduct an everyday drug or fraud case. 

Similarly, Section 501 would amend the collection of statutory 

authorities known as ‘‘national security letters’’ by requiring the requested records to also have a connection to an agent of a foreign 

power. This would have a similar effect in terms of severely limiting the FBI’s ability to conduct timely and thorough national security investigations. 

Another section, Section 301, would appear to prohibit the intelligence community from querying data acquired pursuant to Section 702 of FISA to search for U.S. person communications. Under 

the current minimization procedures approved by the Court, the 

NSA can query the communications already acquired under 702 for 

U.S. person communications. The proposed legislation would only 

allow the same query to take place if the U.S. person is a current 

target of a criminal wiretap or FISA coverage, which would require 

prior judicial approval based on probable cause. This proposal could 

arguably prohibit the intelligence community from querying already lawfully acquired data to search for the methods of communication of a valid target who happens to be also American. And 

in my written statement, I give an example of how I think this 

could potentially play out in practice. 

A few words just on a particular proposal to enhance transparency that is in the bill. In my view, there is substantial value 

in Congress continuing to work with the executive branch and the 

private sector to rebuild confidence between them and for the Government to help the private sector restore confidence with consumers, customers, and investors. 

But a particularly problematic proposal is Section 602 of the bill. 

It proposes that the Government disclose the number of persons 

subject to electronic surveillance. I believe that this is intended to 

include not only targets but persons whose communications are incidentally collected. If that is the intent, in my view this provision 
34 

would actually degrade privacy protections because a requirement 

to report on the numbers of persons collected would require that 

the intelligence community personnel look at, read, review, count, 

and keep records about and report on information that they otherwise would disregard in pursuit of their actual mission of discovering, analyzing, and reporting on foreign intelligence information. 

So again, thank you for the opportunity to be here today, and I 

look forward to your questions. 

[The prepared statement of Professor Cordero appears as a submission for the record.] 

Senator WHITEHOUSE. Thank you very much. 

Let me start with a question for Mr. Black. There is legitimate 

concern that the knowledge of our national security activities casts 

a shadow on the ability of American companies to compete internationally. That was the basis of your testimony. Do you believe 

that foreign customers believe that, for instance, if they sign up for 

a service with Huawei that the Chinese Government is not looking 

into this data or the Russian Government, if they sign up in areas 

under its jurisdiction, or the French Government, for that matter, 

do you think that the U.S. Government is actually the only government that is trying to take advantage of big data? 

Mr. BLACK. I hope our standard is not just to meet Huawei, but 

I do think the reality is that governments in general are inclined 

to want more and more information. Too much. That is why what 

we address in our testimony is, in fact, standards that all governments should be asked to undertake in terms of disclosure, in 

terms of limits. 

The difficulty is that the United States is in a very difficult position in credibility when we are seen to have an extremely pervasive, effective, widespread, and some would say not effectively limited process. No, by no means do we want—— 

Senator WHITEHOUSE. Do you think that—hold on—the Chinese 

and the Russians actually are more effectively limited by the government performing—— 

Mr. BLACK. No, I am not suggesting that at all. 

Senator WHITEHOUSE [continuing]. Surveillance activity than the 

United States is? 

Mr. BLACK. No, I am not suggesting—I am not doing a comparison. First of all, I believe we do have some checks and balances 

that have some effectiveness. Do not get me wrong. You asked a 

question is the perception of the world—— 

Senator WHITEHOUSE. Indeed they are far better than any other 

country’s checks and balances that are engaged in this kind of behavior, correct? 

Mr. BLACK. I am not going to talk to all of the countries. I certainly hope we have better ones—— 

Senator WHITEHOUSE. Are you aware of any other country that 

has a better—— 

Mr. BLACK. I think there are many other countries that do not 

probably do as much collection as we do. 

Senator WHITEHOUSE. I can name some. There are some very 

tiny little countries that probably barely run a phone system. But 

in terms of our major competitors, in terms of the major economic 

and political actors on the world stage, the ones—— 
35 

Mr. BLACK. I think that—— 

Senator WHITEHOUSE [continuing]. That we are all thinking 

of—— 

Mr. BLACK. I guess the question—— 

Senator WHITEHOUSE [continuing]. None of whom have more robust protection—— 

Mr. BLACK. We are trying to say, what kind of future do we 

want, what kind of Internet do we want? Do we want an open 

Internet, an Internet which provides tremendous economic growth, 

tremendous empowerment, tremendous diplomatic and political opportunities around—for billions of people around the world? Do we 

want one where people can have association with other people 

without being spied on by their government or our Government or 

any other government? Is that a desirable outcome? If so, how do 

we take steps to move in that direction? Or do we accept the reality 

that all governments are going to do a maximum collection and go 

in the Big Brother direction as far as they can go and we are just 

in an arms race to do that? I do not think that is a future I look 

forward to. 

It is difficult to want to restrain a government’s desire for more 

information, especially I think our Government, where we have 

well-motivated people who care about national security, who really 

do believe in the motivation of what they are doing. But they are 

zealous and effective, and they are, in fact, in a position where they 

are able to gather a great deal of information. 

Senator WHITEHOUSE. So you think our Government’s security 

services are more dangerous to civil liberties than the government 

security services of China and Russia? 

Mr. BLACK. Are they more interested? Absolutely. Much more interested in protecting civil liberties, absolutely. 

Senator WHITEHOUSE. No, no. More—— 

Mr. BLACK. No doubt about it. 

Senator WHITEHOUSE [continuing]. Intruding into civil liberties. 

You agree that our Government oversight of our national security 

establishment is far more interested in protecting civil liberties—— 

Mr. BLACK. I think it attempts—— 

Senator WHITEHOUSE [continuing]. Of those of competitors like 

China and Russia? 

Mr. BLACK. Well, again, I cannot compare to other people. I do 

not know the details. I certainly have a presumption about how ineffective any controls they would have. I would hope—— 

Senator WHITEHOUSE. You put it—— 

Mr. BLACK. I would hope that with our Constitution we would 

have a really effective system. Do I think we have lived up to the 

best intent and good faith of our Constitution with the legal structures we have created that allow their surveillance? No, I do not 

think we have lived up to the principles, the core principles of the 

First Amendment and Fourth Amendment as faithfully as we 

could. Are we better than totalitarian regimes? Of course. That is 

not a question that I think is fair. 

Senator WHITEHOUSE. You take a different view, I guess, than 

the courts that have overlooked this which have not found Fourth 

Amendment violations in any of this? 
36 

Mr. BLACK. I think some of those decisions have historical positions that are based—I mean, Business Records, for example—— 

Senator WHITEHOUSE. But there is no present decision—— 

Mr. BLACK. When the Business Records—— 

Senator WHITEHOUSE [continuing]. That supports your legal 

point of view? 

Mr. BLACK. Excuse me? 

Senator WHITEHOUSE. There is no present decision by any court 

that suggests that there has been—that this has operated in violation of the Fourth Amendment. It would take a new decision to 

make that conclusion that has not yet been rendered by any court. 

Is that not correct? 

Mr. BLACK. I would suggest that various efforts to get those 

questions raised—— 

Senator WHITEHOUSE. Well, you are the one—— 

Mr. BLACK. In the courts have been denied. 

Senator WHITEHOUSE. You are the one who said that this was 

being operated in violation of the Fourth Amendment. I am asking 

you if you can cite a case that supports that proposition. 

Mr. BLACK. I believe the FISA Court made a ruling that certain 

practices had violated their—— 

Senator WHITEHOUSE. Orders. 

Mr. BLACK. The orders. Well, I think the orders—— 

Senator WHITEHOUSE. But not the Fourth Amendment—— 

Mr. BLACK. Were based on the Constitution. 

Senator WHITEHOUSE. Professor Cordero, for how long has incidental collection of communications with people who are not the 

subject of the warrant been a fact of life in law enforcement? 

Professor CORDERO. Well, both on the criminal side and on the 

national security side, there always is going to be incidental collection. So the criminal Title III wiretaps handle it in one way. On 

the national security side, it is handled through minimization procedures for U.S. person communication. So it has always been a 

factor. The minimization procedures particularly on—well, any of 

the FISA minimization procedures are approved by the Court, including on the 702 collection. 

Senator WHITEHOUSE. So for as long as there has been any authorized Government interception of communications, incidental 

collection has always been a part of that necessarily. 

Professor CORDERO. That is right. 

Senator WHITEHOUSE. I have gone over my time. Senator 

Blumenthal is here. Let me yield to the distinguished Senator from 

Connecticut. 

Senator BLUMENTHAL. Thank you, Mr. Chairman, and thank you 

all for being here. 

Let me focus on FISA Court reforms. Mr. Sanchez, I wonder if 

you could tell me your position on implementing some kind of adversarial process as I have advocated be done through a constitutional advocate and other reforms in the FISA Court that might be 

feasible. 

Mr. SANCHEZ. I would step back from that for a moment and just 

say that in cases where you have something that is an authority 

that was clearly, I think, envisioned as something relatively targeted to acquisition of records with some nexus to terror or espio-
37 

nage suspects, the appropriate move at that point, if it is believed 

that some kind of bulk collection is necessary, some kind of more 

programmatic use of that authority is necessary, is to return to 

Congress and not to, in fact, leave that decision in the hands of the 

FISA Court. One suggested approaching this with a rule of—— 

Senator BLUMENTHAL. In other words, the FISA Court should not 

be making law. 

Mr. SANCHEZ. When a request is so broad as to effectively, I 

think, exceed what anyone conceived as the authority, it would be 

better to have congressional authorization. In closer cases, I think 

what we can see from some of the opinions that have now been released first is that it would, I think, benefit the Court’s proceeding 

when novel questions of law are present to have some kind of adversarial—or I guess to raise opposing arguments, but also I think 

in particular to have technical expertise. I alluded briefly earlier to 

a kind of tricky constitutional wrinkle with respect to the use of 

pen register authority to intercept metadata where you do not just 

have, as with a phone call, the number and the content, but layers 

of metadata and content with—— 

Senator BLUMENTHAL. Do you think, though, that we ought to 

have a constitutional advocate? 

Mr. SANCHEZ. I think that would be extraordinarily helpful, but 

also I think a technical advisory capacity of some kind would be 

useful, because sometimes I think the most difficult questions turn 

not just on the abstruse details of law or technology, but about the 

ways they intersect in surprising ways where often there is not 

precedent directly on point. 

Senator BLUMENTHAL. Thank you. 

Professor Cordero, I gather you feel there is no need for a constitutional advocate or some kind of adversarial process, but you 

would be willing to support some kind of amicus curiae process? 

Professor CORDERO. Thank you, Senator. Well, certainly since the 

October hearing, this conversation has evolved, and so, you know, 

there are different proposals. In my view, as we discussed at the 

prior hearing, based on the current procedures that take place 

within—between the Department of Justice and the intelligence 

community and the Court, in my view there does not—I think that 

the current process is sufficient that facts from the other side are 

presented to the Court, the Court has independent legal advisers. 

These are independent Article III judges who make judgments on 

their own. So, in my view, there actually does not need to be an 

adversarial process, and I think the current process is sufficient. 

However, between the competing legislative proposals, between 

establishing an Office of Special Advocate versus the proposal to 

enable the Court to call upon an amicus if the Court believes it 

needs it, I believe that the second option would be the better of the 

two options. 

Senator BLUMENTHAL. And that is because you are loath to create a ‘‘bureaucracy’’? Or what is the reason? 

Professor CORDERO. Sure. Several reasons. So one is yes, I think 

that the FISA process already is very heavily bureaucratic, it is 

heavily layered. There are multiple offices and legal offices and different layers of management that are involved in reviewing FISA 

matters. So I think it already is very bureaucracy heavy, and I 
38 

think that the way that the Office of Special Advocate is described 

in this legislative proposal, it would simply add to that process. 

I also am concerned that over time there has been a relationship 

of trust and a very constructive relationship between the executive 

branch and the FISA Court, and I actually worry that an Office of 

Special Advocate would in some way harm that sort of established 

relationship of trust by being in the middle. 

With respect to the proposals to add an amicus, you know, again, 

if the Court—— 

Senator BLUMENTHAL. Isn’t the problem that this relationship of 

trust has actually undermined trust in the American public and 

really threatens to completely eviscerate confidence in a system 

that operates in secret, makes secret law, and in the end the relationship of trust may undermine the whole system? 

Professor CORDERO. Well, although, Senator, I would say that actually a concern about the Office of Special Advocate is that it will 

have to operate in secret, too. And so just as the creation of the 

FISA Court in 1978 and the creation of the office that worked in 

the Justice Department that was an independent, non-political office at the time was created in order to establish trust and be sort 

of this independent participant in the process, now people do not— 

you know, they are questioning the FISA Court. And so I do not 

know that over time—although in the sort of immediate future I 

can see how the Office of Special Advocate might be appealing, I 

do not actually think in the long term, because it will operate in 

secret, because it will sort of become part of this whole process, 

that in the long term it really will restore that—— 

Senator BLUMENTHAL. Well, it would operate in secret, but it 

could be combined with other reforms that would provide for some 

greater measure of transparency to the FISA Court’s opinions when 

it makes new law that affects Americans around the world or at 

least in our country. Perhaps there ought to be more of these rulings and opinions that are made public. 

But at any rate, my time has expired. I thank you, Mr. Chairman, and thank each of the witnesses for being here today. 

Senator WHITEHOUSE. Thank you, Senator Blumenthal. I am also 

grateful to the witnesses for the trouble that they have taken to 

come in and help inform this Committee as we go about our decisions, and I welcome them. 

We will hold the record of this hearing open for 1 additional 

week for any further materials anybody wishes to submit, and with 

that, we will adjourn the hearing. 

[Whereupon, at 4:07 p.m., the Committee was adjourned.] 

[Additional material submitted for the record follows.] 
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