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S. HRG. 113–878 

CONTINUED OVERSIGHT OF THE 

FOREIGN INTELLIGENCE SURVEILLANCE ACT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

OCTOBER 2, 2013 

Serial No. J–113–32 

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 

OCTOBER 2, 2013, 10 A.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 4 

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

prepared statement .......................................................................................... 195 

Lee, Hon. Michael S. Lee, a U.S. Senator from the State of Utah ...................... 6 

WITNESSES 

Witness List ............................................................................................................. 67 

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

Maryland ............................................................................................................... 10 

prepared joint statement .................................................................................. 68 

prepared statement .......................................................................................... 79 

Clapper, Hon. James R., Director of National Intelligence, Washington, DC .... 6 

prepared joint statement .................................................................................. 68 

Cordero, Carrie F., Adjunct Professor of Law and Director of National Security Studies, Georgetown University Law Center, Washington, DC ............... 51 

prepared statement .......................................................................................... 184 

Donohue, Laura K., Professor of Law, Georgetown University Law Center, 

and Director, Georgetown’s Center on National Security and the Law, 

Washington, DC ................................................................................................... 47 

prepared statement .......................................................................................... 86 

Felten, Edward W., Professor of Computer Science and Public Affairs, Princeton University, and Director, Center for Information Technology Policy, 

Princeton, New Jersey ......................................................................................... 49 

prepared statement .......................................................................................... 171 

QUESTIONS 

Questions submitted to Hon. Keith B. Alexander by: 

Senator Grassley .............................................................................................. 199 

Senator Hirono .................................................................................................. 203 

Senator Klobuchar ............................................................................................ 206 

Senator Leahy ................................................................................................... 209 

Senator Whitehouse ......................................................................................... 212 

Questions submitted to Hon. James R. Clapper by: 

Senator Grassley .............................................................................................. 200 

Senator Hirono .................................................................................................. 205 

Senator Klobuchar ............................................................................................ 207 

Senator Leahy ................................................................................................... 211 

Senator Whitehouse ......................................................................................... 213 

Questions submitted to Prof. Carrie F. Cordero by Senator Franken ................ 197 

Questions submitted to Prof. Carrie F. Cordero by Senator Grassley ................ 201 

Questions submitted to Prof. Laura K. Donohue by Senator Franken ............... 198 

Questions submitted to Prof. Laura K. Donohue by Senator Grassley ............... 202 

Questions submitted to Prof. Edward W. Felten by Senator Klobuchar ............ 208 
Page

IV 

ANSWERS 

Responses of Hon. Keith B. Alexander to questions submitted by: 

Senator Grassley .............................................................................................. 220 

Senator Hirono .................................................................................................. 231 

Senator Klobuchar ............................................................................................ 229 

Senator Leahy ................................................................................................... 214 

Senator Whitehouse ......................................................................................... 224 

[Note: Responses of Hon. James R. Clapper to questions for the record are 

classified and are, therefore, provided separately.] 

Responses of Prof. Carrie Cordero to questions submitted by Senator Franken . 239 

Responses of Prof. Carrie Cordero to questions submitted by Senator Grassley . 236 

Responses of Prof. Laura Donohue to questions submitted by Senator Franken 252 

Responses of Prof. Laura Donohue to questions submitted by Senator Grassley 241 

Responses of Prof. Edward Felten to questions submitted by Senator Klobuchar 256 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

AOL et al., a letter on S. 1452, the Surveillance Transparency Act of 2013, 

and H.R. 3035, the Surveillance Order Reporting Act of 2013, September 30, 

2013, letter ............................................................................................................ 259 

Rowley, Coleen, retired FBI agent and former FBI Minneapolis Division Legal 

Counsel, Apple Valley, Minnesota, October 21, 2013, letter ............................ 261 
(1) 

CONTINUED OVERSIGHT OF THE 

FOREIGN INTELLIGENCE SURVEILLANCE ACT 

WEDNESDAY, OCTOBER 2, 2013 

UNITED STATES SENATE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to notice, at 10 a.m., in Room 

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

Chairman of the Committee, presiding. 

Present: Senators Leahy, Feinstein, Whitehouse, Klobuchar, 

Franken, Coons, Blumenthal, Hirono, Grassley, Hatch, Sessions, 

Graham, Lee, Cruz, and Flake. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, 

A U.S. SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning, everybody. It is a strange time 

in the Congress. I would also note before we start that we will not 

allow any demonstrations during a meeting of the Senate. 

I know some demonstrators like to get themselves on television. 

I do not care whether they are in agreement—or disagreement with 

positions of mine. I do not want people blocking others who are 

here, by holding up signs, and I do not want them blocking the people who are here to watch this hearing. This is the United States 

Senate, and people have the ability to watch a hearing. 

We are going to conduct further oversight of the intelligence community’s use of the Foreign Intelligence Surveillance Act, or FISA. 

No one knows for sure how long the Federal Government will be 

shut down, but I feel strongly that the Senate Judiciary Committee 

has to continue its work on this important subject because it does 

involve the security of the United States. I consulted with Senator 

Grassley about this, and I appreciate that Director Clapper and 

General Alexander have agreed to proceed with the hearing today 

as scheduled. I am certain that they join me in thanking all of the 

dedicated intelligence community professionals who are also doing 

their jobs today despite the needless shutdown of the Federal Government. That said, I have decided—and, again, I discussed this 

with Senator Grassley—to postpone the Committee’s weekly business meeting tomorrow in light of the Government shutdown. I am 

doing this even though we have judicial emergencies on the agenda. I am hoping that those of us who, like myself, are on the Appropriations Committee will be able to get back to passing bills. I am 

concerned that we are now in October. By law, by the end of last 

month the House of Representatives was supposed to have sent us 

each of the appropriations bills so that we could then vote on them, 
2 

vote up or vote down. They have yet to send over a single one. 

Maybe instead of looking for slogans we ought to just pass these 

appropriations bills and vote for them or vote against them, whichever way, but get it done and let people get back to work. 

I am also going to ask General Alexander and Director Clapper 

at the end of their statements if they would take an extra minute 

and tell us, because it is going to be of interest to many of us on 

this Committee who are on Appropriations, what the shutdown is 

meaning in the number of people who are not able to come to work 

and do the jobs that we expect them to do in our intelligence agencies. 

As we continue to reexamine the intelligence community’s use of 

FISA authorities, let us be clear that no one underestimates the 

threats that our country continues to face or the difficulty of identifying and meeting those threats. We all agree that we should equip 

the intelligence community with the necessary and appropriate 

tools to help keep us safe. But—and there is always a ‘‘but’’—I hope 

that we can also agree that there have to be limits on the surveillance powers we give to the Government. Just because something 

is technologically possible and just because something may be 

deemed technically legal does not mean that it is the right thing 

to do. 

This summer, many Americans learned for the first time that 

Section 215 of the USA PATRIOT Act has for years been secretly 

interpreted to authorize the collection of Americans’ phone records 

on an unprecedented scale. The American public also learned more 

about the Government’s collection of Internet content through the 

use of Section 702 of FISA. 

Since the Committee’s last hearing on these revelations in late 

July, we have learned a great deal more. We have learned that the 

NSA has engaged in repeated, substantial legal violations in its implementation of both Section 215 and Section 702 of FISA. For example, the NSA collected, without a warrant, the content of tens 

of thousands of wholly domestic emails of innocent Americans. The 

NSA violated a FISA Court order by regularly searching the Section 215 phone records database without meeting the standard imposed by the Court. 

These repeated violations led to several reprimands by the FISA 

Court for what the FISA Court called ‘‘systemic noncompliance’’ by 

the Government. The Court has also admonished the Government 

for making a series of substantial misrepresentations to the Court. 

Now, knowing this, we have seen no evidence of intentional abuse 

of FISA authorities, but the pattern is deeply troubling. 

We have also learned that the NSA in 2011 started searching for 

Americans’ communications in its Section 702 database—a database containing the contents of communications acquired without 

individualized court orders. And this past weekend—and all of you 

have seen the front page story—The New York Times reported that 

the NSA is engaging in sophisticated analysis of both domestic and 

international metadata to determine the social connections of 

Americans. 

So when you have all these revelations, it is no surprise that the 

intelligence community faces a trust deficit. And after years of raising concerns about the scope of FISA authorities, as I and others 
3 

have, and the need for stronger oversight, I am glad that many 

Members of Congress in both parties are now interested in taking 

a close look at these programs—at both the Government’s legal and 

policy justifications for them and the adequacy of the existing oversight regimes. 

I think it is time for a change, and I think additional transparency and oversight are important parts of that change. But I believe we have to do more. So I am working on a comprehensive legislative solution with Congressman Sensenbrenner, the Chairman 

of the Crime and Terrorism Subcommittee in the House, as well as 

other Members of Congress, again, across the full political spectrum of both parties. Our bipartisan, bicameral legislation will address Section 215 and Section 702 and a range of surveillance authorities that raise similar concerns. 

Our legislation would end Section 215 bulk collection. It also 

would ensure that the FISA pen register statute and National Security Letters could not be used to authorize bulk collection. The 

Government has not made its case that bulk collection of domestic 

phone records is an effective counterterrorism tool, especially in 

light of the intrusion on Americans’ privacy. 

In addition, I find the legal justification for this bulk collection 

to be strained at best. I have looked at the classified list of cases 

involving Section 215. I find it to be unconvincing. As the Deputy 

Director of the NSA himself acknowledged at our last hearing a 

couple weeks ago, there is no evidence that Section 215 phone 

records collection helped to thwart dozens or even several terrorist 

plots. 

In addition to stopping bulk collection, our legislation would improve judicial review—and I think this is extremely important—by 

the FISA Court and enhance public reporting on the use of a range 

of surveillance activities. It would require Inspector General reviews of the implementation of these authorities—putting into law 

a request that Senator Grassley and I, along with eight other Members of this Committee, made last week to the Inspector General 

for the intelligence community. This is a commonsense, bipartisan 

bill, so I look forward to working on this effort in the coming 

months with those in the Senate, in the House, and others who 

care about these issues. 

I do appreciate the concrete steps that both Director Clapper and 

General Alexander have made in recent months to brief Members 

of Congress—and I have been, as you know, at many of those briefings—and their move toward more transparency and further declassification of documents. I also welcome the participation of the 

legal and technical experts on our second panel and would note 

with particular pride that my alma mater, Georgetown Law, is well 

represented among those witnesses. So I hope this will inform our 

legislative efforts. 

You know, we all agree we have to ensure our Nation’s security, 

but we also have to restore the trust of the American people in our 

intelligence community, and fundamentally we have to protect the 

liberties that have kept us great and a diversified democracy and 

the envy of countries around the world because of our democracy. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 
4 

Senator Grassley, do you want to say something before we go to 

the witnesses? 

OPENING STATEMENT OF HON. CHUCK GRASSLEY, 

A U.S. SENATOR FROM THE STATE OF IOWA 

Senator GRASSLEY. Yes, thank you. And thanks to our witnesses 

for what they do for the security of our country, and to you, 

Mr. Chairman, for holding the hearing, a very important oversight 

hearing, a very important function of Congress to make sure that 

our laws are faithfully executed. Although the Government has 

been partially shut down due to partisan differences over various 

issues, we are continuing our oversight work, as I said, a very important matter, and in this particular instance, because national 

security is the first responsibility of our Federal Government. 

We last held a hearing on this subject late July. At that time I 

expressed the view that the reports in the media had called into 

serious question whether the law and other regulations currently 

in place strike the right balance between protecting our civil liberties and our national security. This is especially so concerning 

the public revelation that under Section 215 of the PATRIOT Act 

the Government was collecting Americans’ phone records in bulk. 

Additional public disclosures since our last hearing have underscored that concern. 

Indeed, since that time, the administration has declassified legal 

opinions reflecting significant errors by the Government before the 

FISA Court in implementing 215 and 702. The good news is that 

these appear to have been for the most part unintentional mistakes 

that Government brought to the Court’s attention on its own accord. Of course, the bad news is that even with all the checks and 

balances built into the system, these kinds of errors can still occur. 

Even more unsettling, other reports since July have suggested 

that there have been cases of intentional and willful misuse of intelligence authorities by NSA employees to spy on their spouses 

and neighbors. These disclosures have created a broader crisis of 

trust in the legitimacy of our intelligence-gathering methods generally. In my view, had these programs been more transparent 

from the start, this trust deficit that the American people have 

would not be as severe as it is now. 

This brings me to the President’s response to the crisis which has 

been very baffling to me. The President held a news conference in 

early August, a news conference that should have been held, and 

thankfully he did, in which he defended the bulk collection of 

phone records as ‘‘an important tool in our effort to disrupt terrorist plots’’ and suggested some areas for reform. Since then, as 

far as I know, he has not said a word in public about these issues. 

If the President really and truly believes in the importance of these 

programs, he should be publicly defending them as part of our national debate. He should not be contracting out that job solely to 

the intelligence community. Simply put, as in so many other areas, 

the President is failing to lead where he wants others to follow. 

In any event, I am pleased that we have taken a number of steps 

to follow up on some of these disturbing reports. Since July, a bipartisan group of Members of this Committee requested that the 

Inspector General of the intelligence community conduct a thor-
5 

ough review of the implementation of these authorities. Additionally, I wrote to the NSA Inspector General and received a public 

accounting of the handful of documented instances where the NSA 

employees intentionally abused their authorities. It was heartening 

to see how few cases of intentional misconduct exist, but on the 

other hand, it is alarming to know that the possibility of employees 

engaging in such behavior turns out to be very real. 

The NSA Inspector General’s response to my letter reflected that 

many of these cases were referred to the Department of Justice for 

possible criminal prosecution. I was planning on following up with 

how these referrals were handled with Deputy Attorney General 

Cole at this hearing. The Chairman chose not to invite an administration witness to provide legal perspective on these matters. 

Therefore, I will be following up with the Department of Justice 

about these cases with a letter to the Attorney General today. 

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

about precisely where that balance is best struck. I probably do not 

agree 100 percent with any member of the two panels of witnesses 

that we have with us today, including Professor Cordero, whom I 

have invited to share her valuable perspective as a lawyer with 

hands-on experience in the intelligence community. But I welcome 

them all, and I am pleased to hear their views as we consider various reforms to FISA and related surveillance activities. 

Something has come to my attention. Just yesterday there were 

press reports of 70 percent of the intelligence community being furloughed. I am concerned that if lawyers in the intelligence community determine that 70 percent of their employees are non-essential 

to the mission, which is a national security mission, the number 

one responsibility of the Federal Government, then the intelligence 

community either needs better lawyers to make big changes to the 

workforce or are you overemployed in those areas. I cannot believe 

that 70 percent of the intelligence community is being furloughed 

and we are still being able to meet our national security responsibilities. So that concerns me very much, and maybe you folks will 

touch on that. 

Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. And, of course, as you know, we 

had the Deputy Attorney General at our last hearing, and we had 

the Deputy Attorney General at our closed-door hearing on this, 

and we will be having the Justice Department testifying again. Because we are limited in time here today, we kept to these two witnesses. 

Speaking of limitation of time, while this would be unusual, Senator Lee—— 

Senator GRASSLEY. Do you not want me to send my letter to the 

Attorney General? 

Chairman LEAHY. Oh, you feel free to send it. You can send anything you want. But we have had him here twice now on this same 

subject, and I am sure we will be having him again. But, Senator 

Lee, did you want to make a very short statement? 
6 

OPENING STATEMENT OF HON. MICHAEL S. LEE, 

A U.S. SENATOR FROM THE STATE OF UTAH 

Senator LEE. Yes, thank you, Mr. Chairman. I appreciate the 

Chairman and the Ranking Member allowing me to speak very 

briefly, as I have to leave for another Committee responsibility. 

Congress, of course, plays an important role when it comes to 

overseeing our Nation’s intelligence and surveillance programs. We 

have to balance various competing interests, and it is difficult. I 

just wanted to highlight a couple of concerns that I am always 

looking out for. 

Number one is the breadth of metadata collection pursuant to 

Section 215 of the PATRIOT Act. 

Number two, the potential for back-door searches of information 

on Americans that is collected, you know, some would argue indirectly, pursuant to Section 702 of the FISA Amendments Act. 

And, number three, the lack of transparency within the FISA 

Court system. 

I have worked with the Chairman in the past on legislation to 

address each of these, and I look forward to working with him in 

the future on these concerns. 

Thank you very much. 

Chairman LEAHY. Thank you very much. 

Our first witness is—incidentally, the most senior Member on 

our side is the Chair of the Senate Intelligence Committee, which 

helps us a great deal in this deliberation, and we will also be joined 

later by Senator Durbin, who is the Chair of Defense Appropriations, which handles much of the budget for this. 

Our first witness is James Clapper. He was sworn in as the 

fourth Director of National Intelligence on August 9, 2010. He 

served for 32 years in the United States Armed Forces, retired in 

1995. He was a lieutenant general in the Air Force. He previously 

served as Under Secretary of Defense for Intelligence and the head 

of the Defense Intelligence Agency. 

Director, it is good to have you here. Please go ahead. 

STATEMENT OF HON. JAMES R. CLAPPER, DIRECTOR 

OF NATIONAL INTELLIGENCE, WASHINGTON, DC 

Director CLAPPER. Chairman Leahy, Ranking Member Grassley, 

and distinguished Members of the Committee, sir, if it is all right 

with you, I would like to answer your question about the impacts 

of the Government shutdown and furloughing our civilians. 

First, the legal standard against which we make decisions about 

who is furloughed and who is not is—and this is quoting from the 

law—‘‘that which is necessary to protect against imminent threat 

to life or property.’’ And so our applying that standard is what resulted across the board in furloughing roughly 70 percent. I think 

that will change as this—if this drags on, and we will make adjustments depending on what we see as the ‘‘potential imminent 

threats to life or property,’’ to quote the law. 

I will tell you as to impacts, I have been in the intelligence business for about 50 years. I have never seen anything like this. From 

my view, I think, this on top of the sequestration cuts that we are 

already taking, that this seriously damages our ability to protect 

the safety and security of this Nation and its citizens. I would com-
7 

mend to you Senator Feinstein’s superb statement yesterday on the 

floor outlining her concerns, with which I completely agree. This affects our ability—this is not just a Beltway issue. This affects our 

global capability to support the military, to support diplomacy, and 

to support our policymakers. And the danger here is, of course, that 

this will accumulate over time. The damage will be insidious. So 

each day that goes by, the jeopardy increases. 

This is a dreamland for foreign intelligence service to recruit, 

particularly as our employees already, many of whom are subject 

to furloughs driven by sequestration, are going to have, I believe, 

even greater financial challenges. So we are spending our time setting up counseling services for employees to help them manage 

their finances. So from my standpoint, this is extremely damaging, 

and it will increase so as this shutdown drags on. 

General Alexander, do you want to add anything to that? 

General ALEXANDER. I was going to do it at the end. 

Director CLAPPER. Go ahead. 

General ALEXANDER. From our perspective, I would echo everything that—— 

Chairman LEAHY. Press the red button. 

General ALEXANDER. Technically challenged, Mr. Chairman. 

From NSA’s perspective, this has impacted us very hard. We 

have an amazing workforce. When I look at what our folks are capable of doing, we have over 960 Ph.D.s, over 4,000 computer scientists, over 1,000 mathematicians. They are furloughed. Our Nation needs people like this, and the way we treat them is to tell 

them, ‘‘You need to go home because we cannot afford to pay you, 

we cannot make a deal here.’’ 

From my perspective, the impact, what Director Clapper points 

out is we went to the most specific threats against our Nation. This 

does not apply to all the threats against our Nation. We cannot 

cover all of those. So what we are doing is we are taking the most 

significant counterterrorism and other threats that we see and the 

support to our military forces in Afghanistan and overseas, that is 

the priority in what we are doing. That is the way the law has 

been interpreted, and that is what we are doing. From my perspective, it has had a huge impact on morale. 

Director CLAPPER. So, sir, if you would like, we will go into our 

statements on the subject of the hearing. 

We do appreciate your having us today to talk about the way 

ahead occasioned by the dramatic revelations about intelligence collection programs since their unauthorized disclosure and about the 

steps we are taking to make these programs more transparent 

while still protecting our national security interests. 

I am joined today, of course, by the Director of the National Security Agency, General Keith Alexander, and following my brief 

statement, he will have an additional statement. 

We think this hearing is a key part of the discussion our Nation 

needs about legislation that provides the intelligence community 

with authorities both to collect critical foreign intelligence and to 

protect privacy and civil liberties. We, all of us in the intelligence 

community, are very much aware that the recent unauthorized disclosures have raised serious concerns both here in Congress and 

across the Nation about our intelligence activities. We know that 
8 

the public wants both to understand how its intelligence community uses its special tools and authorities and to judge whether we 

can be trusted to use them appropriately. 

We believe we have been lawful and that the rigorous oversight 

we have operated under has been effective. So we welcome this opportunity to make our case to the public. 

As we engage in this discussion, I think it is also important that 

our citizens know that the unauthorized disclosures of the details 

of these programs has been extremely damaging. From my vantage 

as DNI, these disclosures are threatening to our ability to conduct 

intelligence and to keep our country safe. There is no way to erase 

or make up for the damage that we know has already been done, 

and we anticipate even more as we continue our assessment as 

more revelations occur. 

Before these unauthorized disclosures, we were always conservative about discussing the specifics of our collection programs based 

on the truism that the more adversaries know about what we are 

doing, the more they can avoid our surveillance. 

But the disclosures, for better or for worse, have lowered the 

threshold for discussing these matters in public. So to the degree 

that we can discuss them, we will. But this public discussion 

should be based on an accurate understanding of the intelligence 

community, who we are, what we do, and how we are overseen. 

In the last few months, the manner in which our activities have 

been characterized has often been incomplete, inaccurate, or misleading, or some combination thereof. I believe that most Americans realize the intelligence community exists to collect the vital 

intelligence that helps protect our Nation from foreign threats. We 

focus on uncovering the secret plans and intentions of our foreign 

adversaries, but what we do not do is spy unlawfully on Americans 

or, for that matter, spy indiscriminately on the citizens of any 

country. We only spy for valid foreign intelligence purposes as authorized by law, with multiple layers of oversight to ensure we do 

not abuse our authorities. 

Unfortunately, this reality has sometimes been obscured in the 

current debate, and for some this has led, as you alluded, to an erosion of trust in the intelligence community. And we do understand 

the concerns on the part of the public. 

I am a Vietnam veteran, and I remember as congressional investigations of the 1970s later disclosed—and I was in the intelligence 

community then—that some intelligence programs were carried out 

for domestic political purposes without proper legal oversight or authorization. But having lived through that as a part of the intelligence community, I can now assure the American people the intelligence community today is not like that. We operate within a 

robust framework of strict rules and rigorous oversight involving 

all three branches of the Government. 

Another useful historical perspective, at least I think, is that 

during the Cold War, the Free World and the Soviet Bloc had mutually exclusive telecommunications systems which made foreign 

collection a lot easier to distinguish. Now world telecommunications are unified. Intertwined with hundreds of millions of innocent people conducting billions of innocent transactions are a much 

smaller number of nefarious adversaries who are trying to do harm 
9 

on the very same network using the very same technologies. So our 

challenge is to distinguish very precisely between these two groups 

of communicants. If we had an alarm bell that went off whenever 

one terrorist communicated with another terrorist, our jobs would 

certainly be a lot easier. But that capability just does not exist in 

the world of technology today. 

Over the past 3 months, I have declassified and publicly released 

a series of documents related to both Section 215 of the PATRIOT 

Act and Section 702 of the Foreign Intelligence Surveillance Act, or 

FISA. We did that to facilitate informed public debate about the 

important intelligence collection programs that operate under these 

authorities. We felt that, in light of the unauthorized disclosures, 

the public interest in these documents far outweighed the potential 

additional damage to national security. These documents let our 

citizens see the seriousness, thoroughness, and rigor with which 

the FISA Court exercises its responsibilities. 

They also reflect the intelligence community’s, particularly 

NSA’s, commitment to uncovering, reporting, and correcting any 

compliance matters that occur. However, even in these documents, 

we have had to redact certain information to protect sensitive 

sources and methods, such as particular targets of surveillance. 

But we will continue to declassify more. That is what the American 

people want. It is what the President has asked us to do. And I 

personally believe it is the only way we can reassure our citizens 

that their intelligence community is using its tools and authorities 

appropriately and legitimately. 

The rules and oversight that govern us ensure we do what the 

American people want us to do, which is to protect our Nation’s security and our people’s liberties. So I will repeat: We do not spy on 

anyone except for valid foreign intelligence purposes, and we only 

work within the law. 

On occasion, we have made mistakes, some quite significant. But 

these are usually caused by human error or technical problems. 

And whenever we have found such mistakes, we have reported, addressed, and corrected them. 

The National Security Agency specifically, as part of the intelligence community broadly, is an honorable institution. The men 

and women who do this sensitive work are honorable people dedicated to conducting their mission lawfully and are appalled by any 

wrongdoing. They, too, are citizens of this Nation who care just as 

much about privacy and constitutional rights as the rest of us. 

They should be commended for their crucial, important work in 

protecting the people of this country, which has been made all the 

more difficult by this torrent of unauthorized damaging disclosures. 

That all said, we in the intelligence community stand ready to 

work in partnership with you to adjust foreign surveillance authorities to further protect our privacy and civil liberties, and I 

think there are some principles we agree on: 

One, we must always protect our sources, methods, targets, partners, and liaison relationship. 

Second, we must do a better job in helping the American people 

understand what we do, why we do it, and, most importantly, the 

rigorous oversight that helps ensure that we do it correctly. 
10 

And, three, we must take every opportunity to demonstrate our 

commitment to respecting the civil liberties and privacy of every 

American. But we also have to remain mindful of the potentially 

negative long-term impact of overcorrecting the authorizations 

granted to the intelligence community. 

As Americans, we face an unending array of threats to our way 

of life, a more diverse array of threats than I have seen in my 50 

years in intelligence. And I believe we need to sustain our ability 

to detect these threats. We welcome a balanced discussion about 

national security and civil liberties. It is not an either/or situation. 

We need to continue to protect both. 

Let me turn now to General Alexander. 

[The prepared statement of Mr. Clapper appears as a submission 

for the record.] 

Chairman LEAHY. General Alexander serves the Director of the 

National Security Agency and the head of U.S. Cyber Command. 

He has testified before us both in open and closed sessions of this 

Committee and, of course, continuously in the Intelligence Committee. 

General, go ahead. 

STATEMENT OF HON. KEITH B. ALEXANDER, DIRECTOR, 

NATIONAL SECURITY AGENCY, FORT MEADE, MARYLAND 

General ALEXANDER. Chairman Leahy, Ranking Member Grassley, distinguished Members of the Committee, thank you for the opportunity to provide opening remarks. 

I am privileged today to represent the dedicated professionals at 

the National Security Agency who employ the authorities provided 

by Congress, the Federal courts, and the executive branch to help 

protect the Nation and protect our civil liberties and privacy. 

If we are to have an honest debate about how NSA conducts its 

business, we need to step away from sensationalized headlines and 

focus on facts. 

Our mission is defend the Nation and to protect our civil liberties 

and privacy. Ben Wittes from the Brookings Institution said about 

the media leaks and specifically about these two FISA programs: 

‘‘Shameful as it is that these documents were leaked, they actually 

should give the public great confidence in both NSA’s internal oversight mechanisms and in the executive and judicial oversight mechanisms outside the Agency. They show no evidence of any intentional spying on Americans or abuse of civil liberties. They show 

a low rate of the sort of errors any complex system of technical collection will inevitably yield. They show robust compliance procedures on the part of the NSA. And they show an earnest, ongoing 

dialogue with the FISA Court over the parameters of the Agency’s 

legal authority and a commitment both to keeping the Court informed of activities and to complying with its judgments on their 

legality.’’ 

Today I would like to discuss the facts and specifically address: 

Who we are in terms of both our mission and our people; 

What we do: adapt to technology and the threat; take direction 

from political leadership; operate strictly within the law and consistent with explicit intelligence priorities; and ensure compliance 
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with all constraints imposed by our authorities and internal procedures; 

What we have accomplished specifically for our country with the 

tools we have been authorized; and, 

Where do we go from here? 

First, who we are, our mission. NSA is a foreign intelligence 

agency with two missions: We collect foreign intelligence of national security interest, and we protect certain sensitive information and U.S. networks—all this while protecting our civil liberties 

and privacy. 

NSA contributes to the security of our Nation, its Armed Forces, 

and our allies. 

NSA accomplishes this mission, while protecting civil liberties 

and privacy, because the Constitution we are sworn to protect and 

defend makes no allowances to trade one for the other. 

NSA operates squarely within the authorities granted by the 

president, Congress, and the courts. 

Who we are: our people. 

I am proud of what NSA does and more proud of our people. 

The National Security Agency employees take an oath to protect 

and defend the Constitution of the United States. 

They have devoted themselves to protecting our Nation. 

Just like you, they will never forget the moment terrorists killed 

2,996 Americans in New York, Pennsylvania, and the Pentagon. 

They witnessed the first responders’ efforts to save lives. They 

saw the military shift to a wartime footing. They committed themselves to ensuring that another 9/11 would never happen and our 

deployed forces would return home. 

In fact, they deploy with our Armed Forces into areas of hostility. 

More than 6,000 have deployed in support of operations in Iraq 

and Afghanistan; 22 have paid the ultimate sacrifice since 9/11— 

sadly, adding to a list of NSA/CSS personnel numbering over 170 

killed in the line of duty since our formation in 1952. 

Theirs is a noble cause. 

NSA prides itself on its highly skilled workforce: We are the largest employer of mathematicians—1,013; 966 Ph.D.s and 4,374 computer scientists; linguists in more than 120 languages; more patents than any other intelligence community agency and most businesses. They are also Americans, and they take their civil liberties 

and privacy seriously. 

What we do: adapt to technology. 

Today’s telecommunications system is literally one of the most 

complex systems ever devised by mankind. 

The fact that over 2.5 billion people all connect and communicate 

across a common infrastructure is a tribute to the ingenuity of 

mankind. The stark reality is that terrorists, criminals, and adversaries make use of the same infrastructure. 

Terrorists and other foreign adversaries hide in the same global 

network, use the same communications networks as everyone else, 

and take advantage of familiar services: Gmail, Facebook, Twitter, 

et cetera. Technology has made it easy for them. 

We must develop and apply the best analytic tools to succeed at 

our mission, finding the communications of adversaries while protecting those of innocent people, regardless of their nationality. 
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What we do: We take direction from political leadership. 

NSA’s direction comes from national security needs, as defined 

by the Nation’s senior leaders. 

NSA does not decide what topics to collect and analyze. 

NSA’s collection and analysis is driven by the National Intelligence Priorities Framework and received in formal tasking. 

We do understand that electronic surveillance capabilities are 

powerful tools in the hands of the state. That is why we have extensive mandatory internal training, automated checks, and an extensive regime of both internal and external oversight. 

What we do: We use lawful programs and tools to do our mission. 

The authorities we have been granted and the capabilities we 

have developed help keep our Nation safe. 

Since 9/11 we have disrupted terrorist attacks at home and 

abroad using capabilities informed by the lessons of 9/11. 

The Business Records FISA program, NSA’s implementation of 

Section 215 of the PATRIOT Act, focuses on defending the homeland by linking the foreign and domestic threats. 

Section 702 of FISA focuses on acquiring foreign intelligence, including critical information concerning international terrorist organizations, by targeting non-U.S. persons who are reasonably believed to be located outside the United States. 

NSA also operates under other sections of the FISA statute in accordance with the law’s provisions. 

It is important to remember that in order to target a U.S. person 

anywhere in the world under the FISA statute, we are required to 

obtain a court order based on a probable cause showing that the 

prospective target of the surveillance is a foreign power or agent 

of a foreign power. 

NSA conducts the majority of its SIGINT activities solely pursuant to the authority provided by Executive Order 12333. 

As I have said before, these authorities and capabilities are powerful; we take this responsibility seriously. 

We ensure compliance. 

We stood up a Directorate of Compliance in 2009 and repeatedly 

train our entire workforce in privacy protections and the proper use 

of capabilities. 

We do make mistakes. The vast majority of the compliance incidents reflect the challenge of implementing very specific rules in 

the context of ever-changing technology. 

Compliance incidents, with very rare exception, are unintentional 

and reflect the sort of errors that will occur in any complex system 

of technical activity. 

The press claimed evidence of ‘‘thousands of privacy violations.’’ 

This is false and misleading. 

According to NSA’s independent Inspector General—and the Vice 

Chairman brought up the 12 cases, so I will just go through that 

quickly. There were 12 cases of willful violation. All of those were 

under Executive Order 12333. None of those were in the Business 

Records FISA or under FAA 702. 

We hold ourselves accountable every day. 

Most of these targets involved improper tasking or querying regarding foreign persons in foreign places. 
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I am not aware of any intentional or willful violations of the 

FISA statute. 

Of the 2,776 incidents noted in the press from one of our leaked 

annual compliance reports, about 75 percent are not violations of 

approved procedures at all but, rather, NSA’s detection of valid foreign targets that travel to the U.S. and a record that NSA stopped 

collecting, in accordance with the rules. We called those ‘‘roamers,’’ 

and I mispronounced that in one of the things, and it came out as 

‘‘rumors,’’ but it is ‘‘roamers.’’ 

Let me also start to clear the air on actual compliance incidents. 

The vast majority of the actual compliance incidents involve foreign locations and foreign activities, as our activities are regulated 

by specific rules wherever they occur. 

For the smaller number that did involve a U.S. person, a typical 

incident involves a person overseas involved with a foreign organization who is subsequently determined to be a U.S. person. All initial indications and research before collection point the other way, 

but NSA constantly reevaluates indications. 

NSA detects and corrects and, in most cases, does so before any 

information is ever obtained, used, or shared outside NSA. 

Despite the difference, between willful and not, we treat incidents the same: We detect, we address, we remediate, including removing or purging information from our databases in accordance 

with the rules. And we report. 

We hold ourselves accountable and keep others informed so they 

can do the same. 

On NSA’s compliance regime, Ben Wittes said, at last Friday’s 

Intelligence Committee hearing: ‘‘But one thing we have learned an 

enormous amount about is the compliance procedures that NSA 

uses. They are remarkable. They are detailed. They produce data 

streams that are extremely telling—and, to my mind, deeply reassuring.’’ 

We welcome an ongoing discussion about how the public can, 

going forward, have increased information about NSA’s compliance 

program. 

[The prepared statement of General Alexander appears as a submission for the record.] 

Chairman LEAHY. Well, then, let us go into that discussion, because both of you have raised concerns that the media reports 

about the Government surveillance programs have been incomplete, inaccurate, misleading, or some combination of that. But I 

worry that we are still getting inaccurate and incomplete statements from the administration. 

For example, we have heard over and over again the assertion 

that 54 terrorist plots were thwarted by the use of Section 215 and/ 

or Section 702 authorities. That is plainly wrong. But we still get 

it in letters to Members of Congress; we get it in statements. These 

were not all plots and they were not all thwarted. The American 

people are getting left with the inaccurate impression of the effectiveness of NSA programs. 

Would you agree that the 54 cases that keep getting cited by the 

administration were not all plots and, of the 54, only 13 had some 

nexus to the U.S.? Would you agree with that—yes or no? 

General ALEXANDER. Yes. 
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Chairman LEAHY. Okay. At our last hearing, Deputy Director 

Inglis’ testimony stated that there is only really one example of a 

case where but for the use of Section 215 bulk phone records collection, terrorist activity was stopped. Was Mr. Inglis right? 

General ALEXANDER. He was right. I believe he said two, Chairman. I may have that wrong, but I think he said two. And I would 

like to point out that it could only have applied in 13 of the cases 

because of the 54 terrorist plots or events, only 13 occurred in the 

U.S. Business Records FISA was only used in 12. 

Chairman LEAHY. I understand that. But what I worry about is 

that some of these statements that all is well and we have these 

overstatements of what is going on, we are talking about massive, 

massive, massive collection. We are told we have to do that to protect us. And then statistics are rolled out, and if they are not accurate, it does not help with the credibility here in the Congress, it 

does not help with the credibility with this Chairman, and it does 

not help with the credibility with the country. 

And both of you feel free to answer this next one. This past 

weekend—I mentioned The New York Times article. When I read 

that, I see them reporting that for the past several years the NSA 

has been analyzing social networks, including those of Americans, 

using communications metadata as well as location information, 

tax records, voter registration records, and more. 

Like many of us who have access to classified briefings, we sometimes find we get far more in a newspaper—and we get a crossword puzzle, too, but we get more in the newspapers than we do 

in the classified briefings that you give us. According to the article, 

it reportedly allowed the NSA to graph the interactions of associates and locations of Americans. 

Now, if it is accurate, it appears to contradict earlier representations that the NSA does not compile dossiers or files on the American people. 

Is the NSA compiling profiles or dossiers on American people 

through the use of its intelligence authorities? Gentlemen, either 

one of you. 

Director CLAPPER. Let me comment first on the value of Section 

215, where I think, unfortunately—and we may be part guilty of 

this—the only metric used is plots foiled. I think there is another 

metric here that is a very important use for Section 215. I would 

call it the ‘‘peace of mind metric.’’ 

In the case of the Boston Marathon bomber, we were using these 

tools and we were able to check out whether there was or was not 

a subsequent plot involving New York City. 

In the case of the AQAP threat this summer that occasioned the 

closure of several diplomatic facilities in the Mideast. 

There were a number of selectors that emerged from our collection overseas that pointed to the United States. Each one of them 

was checked out and was found not to be relevant to a domestic 

aspect of a terrorist plot. 

Chairman LEAHY. Mr. Clapper, we will certainly give you time 

to add to that, if you like, but could you go back to my question? 

Is the NSA compiling profiles or dossiers on the American people 

through the use of its intelligence authorities? 
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Director CLAPPER. In every case, for valid foreign intelligence 

purposes, let me go to General Alexander. 

General ALEXANDER. Those reports are inaccurate and wrong. 

Chairman LEAHY. So The New York Times is wrong in its article? 

General ALEXANDER. Absolutely. Here are the facts. What they 

have taken is the fact that we do take data to enrich it. What is 

not in front of those statements is the word ‘‘foreign,’’ foreign information to understand what the foreign nexus is of a problem set 

that we are looking at. How do you know what an individual is, 

a terrorist, without having any data to enrich it, with just a number? In the foreign space, we need that. 

The Supplemental Procedures and Guidelines Governing Communications Metadata Analysis, the SPCMA article that this was 

about, allows NSA to not just stop when we are tracking a terrorist 

if we hit a U.S. number, which is what we used to have to do. It 

allows us to go back and see where that goes and where it comes 

into or out of the country and what are the problems outside the 

country—— 

Chairman LEAHY. Which authority are you using for this analysis? First off, I just want to make sure I understand. You are saying The New York Times is flat-out wrong in their article. 

General ALEXANDER. I am saying they are flat-out wrong saying 

that we are creating dossiers on American—— 

Chairman LEAHY. Are you going into social networks? 

General ALEXANDER. No. Here is what we—— 

Chairman LEAHY. Okay. What, if anything, is accurate in The 

New York Times article? 

General ALEXANDER. The accuracy is the Secretary of Defense 

and the Attorney General did approve the Supplemental Procedures Governing Communications Metadata Analysis in 2009. 

What that allows us to do is use metadata that we have acquired 

under Executive Order 12333 in chain, whether it is phone records 

or emails, through U.S. selectors to figure out social networks 

abroad. 

I will tell you that there are cases—— 

Chairman LEAHY. That 2009 order is still being used? 

General ALEXANDER. That is correct. But there are cases—I need 

to clarify because I want to make sure this is 100 percent accurate. 

There are cases where the FBI might start a terrorist threat here 

in the United States. If there is a terrorist threat in the United 

States and they get a warrant to go after that or a FISA, then we 

can use SPCMA to go after that. We can use this to look at hostages overseas, U.S. hostages. We can look at this to track industries, because U.S. companies are also considered U.S. persons 

under this law, that are the targets of terrorist communications. 

What we are not doing: We are not creating social networks on 

our families. We are not doing that. And the insinuation that we 

are doing that is flat wrong. And I take exception to them taking 

a classified document that dealt with foreign, not understanding it 

and saying therefore it must apply to—— 

Chairman LEAHY. You told The Times this? 

General ALEXANDER. Chairman? 
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Chairman LEAHY. Have you made this complaint or responded to 

The New York Times on this? 

General ALEXANDER. Yes. I think the issue is, you know, here 

they have all these documents that they are trying to leak out 

without having the understanding. We did give them insights. 

They did not take all the data. I do not know what and why. I do 

not—— 

Chairman LEAHY. What you are doing, is it being reviewed by 

the FISA Court? 

General ALEXANDER. Not in all cases. Some of these cases that 

deal with Executive Order 12333 are not reviewed by the FISA 

Court. Those that would fall under the Business Records 215, 702, 

–3, and –4 would be. So these would not be reviewed, but they are 

reviewed by the administration, and they are audited by our people. 

Chairman LEAHY. My time is up. You have raised more—— 

Senator GRASSLEY. I think you ought to take more time. This 

transparency—because one of the problems we have with this program, there is not enough transparency. 

Chairman LEAHY. Thank you. You know, I worry—you say it is 

Executive authority, not FISA Court authority. Does anybody have 

oversight other than the executive branch? 

General ALEXANDER. Well, Congress, too. And let me—— 

Chairman LEAHY. Has this been reported to the Congress—— 

General ALEXANDER. They get all—— 

Chairman LEAHY [continuing]. Either of the Intelligence Committees? 

General ALEXANDER. I believe both of these have, and I would 

have to go back and check, but both of these have gone to the Committee. I think you have both of these. And, Chairman, you bring 

out a good point, and for the complete transparency, Chairman, you 

brought out a good question, and if I could, I think this will help 

greatly. 

The issue that we have here is how do you use metadata, which 

is the least intrusive, to understand a problem that our Nation 

could face. That is the Business Records. And so we use that globally, and sometimes it touches the United States. 

Chairman LEAHY. Well, metadata, you say the least intrusive. 

Many might think it is the most intrusive, and I will tell you why. 

And I realize there is a lot of metadata going on. We shop at the 

grocery store; you use your grocery store credit card; the ads you 

are going to get are going to be different if you are buying things 

for young children or if you are buying a nice bottle of wine. We 

all understand that. 

But do you understand the concern as more and more things 

come out, when it turns out, for example, the NSA, some members—and I realize not by authority—were checking their love interests through using the tools of NSA. You know, Americans like 

their privacy. They like their security, but they like their privacy, 

too. And you understand the concern that we are getting. Simply 

following the metadata, a lot of people think if they are on social 

media and whatnot that there is some expectation of privacy, less 

obviously but some. 
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General ALEXANDER. So I do agree, Chairman, but I think the 

differentiation that I make in terms of metadata for these purposes 

is the phone numbers to-from or the email addressed to-from. And 

the issue that I think we face in trying to figure out where we take 

this legislation is how do we do this in such a way that we can ensure the American people know that we are doing it exactly right 

and protect the Nation? 

From my perspective, what we have done is set up two things. 

We have put this database, with tremendous oversight—this has 

more oversight than any program in Government—the courts, the 

administration, and Congress, and our IGs and everyone. And 

every time we make a mistake, we self-report. Why do we need it? 

And General Clapper brought out a great point. It is the start. It 

does not necessarily lead us to the end. It tells us you need to look 

more here. Oftentimes we give that to the FBI. 

Now, yes, the FBI and we need to do better work in keeping the 

metrics of what resulted from that. But, in addition, it helps us 

looking overseas to say why is that person important and how do 

we tell you if this is a real threat or something that we should ignore. This summer, this was huge for us. 

Chairman LEAHY. I will come back to some of my skepticism. 

One other thing. We have tried to make sure that it is kept—an 

issue like this, I want to try to maintain the bipartisan nature, and 

I want to thank Senator Grassley because he expressed some of 

these concerns. And while he would normally go next, the Chair of 

the Senate Intelligence Committee has to leave for another meeting, so he has yielded to her. 

Senator FEINSTEIN. Thank you. 

Chairman LEAHY. Chuck, I appreciate that. 

Senator FEINSTEIN. Thank you very much. I appreciate that. 

Chairman LEAHY. I am stepping out for a phone call, and I will 

be right back. 

Senator FEINSTEIN [presiding]. Thank you, Mr. Chairman. 

I want to use my time to say something to my colleagues. I believe maybe only Senator Hatch was on the Intelligence Committee 

in 2001. In mid-year, the DCI, whose name was George Tenet, 

came in to meet with us, and what he said was that he predicted 

that within 3 months there would likely be an attack on this country. He did not know what. He did not know when. He did not 

know how. As a matter of fact, I went on CNN on July 1, 2001, 

and said this: ‘‘There is a major possibility of a terrorist incident 

within the next 3 months.’’ That is a direct quote from what I said. 

Then something took place which I thought could never take 

place in this country, and that is 9/11. I never believed there could 

be training schools for pilots who would teach people how to fly but 

not to land in this country. I never thought our visa system was 

so weak that they could admit terrorists to this country. But I was 

totally wrong. 

The event happened, and it was catastrophic—for people, for this 

Nation, for our standing, but most importantly, because of the 

death and destruction that it brought about this country. 

And then we learned that there were stovepipes and our intelligence was inadequate and we could not collect enough data. And 

then we learned that there was a man by the name of Khalid al- 
18 

Mihdhar, one of the group in San Diego. I believe that if this were 

to happen again with this program and other programs working in 

combination, we have an opportunity to pick that up. Absent these 

kinds of technological programs, we do not have an opportunity to 

pick that up. 

This is a very hard culture to meet with human intelligence. It 

is a different culture. The language is different. There are many 

dialects. The groups are tight. It is very difficult to permeate them. 

So our great strength today, ladies and gentlemen, in protecting 

this homeland is to be able to have the kind of technology that is 

able to piece together data while protecting rights. I listened to this 

program being described as a surveillance program. It is not. There 

is no content collected by the NSA. There are bits of data—location, 

telephone numbers—that can be queried when there is reasonable, 

articulable suspicion. If it looks like it is something for an individual in this country, it then goes to the FBI for a probable cause 

warrant, and a full investigation takes place. 

I so regret what is happening. I will do everything I can to prevent this program from being canceled out. There is going to be a 

bill in my Committee to do it. There is a bill in this Committee to 

do it. And, unfortunately, very few of us sat on that Committee 

when George Tenet came in in June 2001 and said, ‘‘We anticipate 

a strike, but we do not know what, we do not know where, we do 

not know when.’’ That can never be allowed to happen in the 

United States of America again. And that is the basis for this program. It is legal. We are looking at increased transparency. We are 

looking to make some changes in it. But we are not looking to destroy it. To destroy it is to make this Nation more vulnerable. 

I just wanted to say that. I had to say it. Thank you. Senator. 

Senator GRASSLEY. Go ahead with your questions. 

Senator FEINSTEIN. Pardon me? 

Senator GRASSLEY. Do you have any questions? 

Senator FEINSTEIN. I do not have any questions. Thank you. 

Senator GRASSLEY. Let me make clear something I said to the 

Chairman to keep asking his questions, because we need more 

transparency. I do not know exactly how much transparency we 

ought to have. You folks know that. I do not know your business. 

Your number one responsibility is protecting our national security. 

But whatever that balance is between security and transparency, 

we ought to have it, because I firmly believe that a lot of these 

issues that Senator Feinstein wants to protect would not be coming 

up if more had been told about it over the last few years. I do not 

think the impact of Mr. Snowden would have—well, I do not want 

to comment on that. But, anyway, I think that in our system, 

transparency brings accountability. 

I am going to start out where I left off, and it is not an accusation against the intelligence community if the information is accurate. I am going to ask a question, but before you want to answer 

it, I want to tell you why I am cynical about these statements 

about what sequestration and what the shutdown will do that you 

made and other people have made, and that comes yesterday with 

the closing down of the World War II Monument. We had World 

War II veterans coming in on honor flights, and they had barricades around something that I will bet 24/7/365 I could walk into 
19 

that any time. And so the show of putting barriers around because 

of a shutdown and spending all the money to do it and then to have 

every other department talk about shutdowns causes me to be a little cynical. 

Now, I am not putting your work in the same category as the 

Park Service. Do not read me wrong. But if, in fact, 70 percent of 

the intelligence community is now furloughed, if that is true, is 

that an honest assessment that these employees are non-essential? 

I am concerned that if your lawyers have determined that 70 percent of your employees are non-essential to your mission, then you 

either need better lawyers or you need to make big changes to your 

workforce. 

Can you tell me whether those reports are accurate or not? 

Director CLAPPER. Well, first of all, sir, we do not consider any 

of our employees non-essential. But for purposes of this law, the 

criterion is ‘‘necessary to protect against imminent threat to life or 

property,’’ so that causes us to make some very, very painful 

choices about who we keep on and who we except. 

I would comment on your commentary about the monument closures, and that precisely illustrates the challenge we have in intelligence on conveying the impacts of these cuts, because obviously 

people see the impact of closing public parks. 

In the case of intelligence, it is insidious. So capabilities that we 

degrade today or give up, we may not see the impact of those for 

weeks or months or for an extended period. Much harder to rationalize. But I do not want any doubt about the necessity—the importance of all of our employees. 

And as I said earlier, as each day goes by, the impact and the 

jeopardy to the safety and security of this country will increase. 

Senator GRASSLEY. General Alexander, my first question. FISA 

Court opinions show that there were significant problems implementing 215 phone records that were discovered in 2009, showing 

that the NSA was inadvertently assessing the phone record 

metadata without required reasonable and articulable connection 

to terrorism. Those problems were apparently not resolved with the 

Court until late that year. 

Since then, I understand that every query of the metadata is audited by the Department of Justice, and any compliance issues 

must be reported immediately to the FISA Court. 

My first question: Precisely when did the Department begin auditing every query of the metadata? Since then, has the Department determined on any occasion that the reasonable and 

articulable suspicion standard was not followed? 

General ALEXANDER. So I know of—first I will answer the second 

first and walk backward. I know of no cases where we have not followed the reasonable, articulable suspicion standard, and it has always been auditable since the inception of the program. But the 

issue you bring out, if I could just take 1 minute on that, because 

we did make a mistake. 

The way we do analysis on the foreign intelligence that we collect 

was to set up what we called an ‘‘alert list,’’ and that alert list 

would run against the data that comes in and tell us if there was 

something on a terrorist that—these alert lists were terrorist numbers that we were tracking. What we had not done is reasonable, 
20 

articulable suspicion on all terrorist numbers. What we were using 

it for is to say there is a lot of activity on this number, you ought 

to go do reasonable, articulable suspicion so you can look into the 

data. 

It was a discrepancy between our technical folks who set it up 

and our legal folks. And we did it wrong, and we misrepresented 

it to the Court several times in subsequent procedures of renewals. 

That drove us to set up a Directorate of Compliance that would 

actually look at the technical side and the legal side and make sure 

we cross-walked this 100 percent. And I think that has been successful, and that is something that we worked with both the Intel 

Committees and the White House. 

Senator GRASSLEY. Second to you, how does the NSA handle instances when a phone number may have been connected to a terrorist group in the past, but NSA knows it is no longer associated 

with that group? Is there a mechanism so that a query of the 

metadata can be done that is limited only against the records for 

certain time periods? 

General ALEXANDER. I am not sure I understand this all the way, 

but let me see if I have got it right. The answer is if a number 

changes from Person A to Person B over the life of it, how do we 

adapt to that? That is a difficult technical issue and one that our 

analysts have to look at, because what you would actually get is 

two sets of called people. Senator Sessions has one set of people he 

talks to. You have a different set. What you would see is those sets 

come together in different times. And the answer is, yes, our analysts can actually delete the second part and say those are of no 

interest, I am only looking at this first part, because part of the 

Business Records FISA does have a date-time group, a duration of 

call, and the to-and-from number. 

Senator GRASSLEY. I would like to follow up with Mr. Clapper on 

my first question. Does America remain safe even with the shutdown? 

Director CLAPPER. I have to qualify that, sir. I do not feel that 

I can make such a guarantee to the American people, and it would 

be much more difficult to make such a guarantee as each day of 

the shutdown goes by. I am very concerned about the jeopardy of 

the country because of this. 

Senator GRASSLEY. Can I have one more question? 

Chairman LEAHY. Of course. I just want to make sure I—what 

you are saying is, it becomes cumulative? You are saying the danger and threat become cumulative? 

Director CLAPPER. Yes, sir. 

Chairman LEAHY. Thank you. 

Senator GRASSLEY. General Alexander, I hope you are familiar 

with the Inspector General’s letter to me in which he provides certain details about 12 documented instances of NSA employees intentionally or willfully abusing their surveillance authority. The details in it are alarming to me, so I have a follow-up question. 

I noticed that almost all of these cases involved NSA employees 

stationed abroad. Does that suggest to you that the mechanism to 

catch this kind of conduct at your domestic facilities are somewhat 

insufficient? And what else could account for the disparity? 
21 

General ALEXANDER. So it is much more difficult to track a foreign number and understand when somebody is doing something 

on a foreign number that is inappropriate. Those can oftentimes be 

misleading statements by the analyst saying, ‘‘I am looking at this 

for A,’’ and actually it is a girlfriend. 

In the United States, it is different. Against a U.S. number or 

against an email address, those are flagged, and the system automatically sees that you are doing something against a U.S. person 

and the auditing procedures come in right away. 

Against a foreign number overseas, you do not get those flags, 

but it is an extremely important point to note that even on a foreign person, if we make a mistake, we hold our people accountable. 

There is no call for that. It is supposed to be against a foreign intelligence purpose, and you saw the outcome of those 12 cases, 

what happened in each one in that letter that the Inspector General sent to you. 

Senator GRASSLEY. One follow-up: One of the pieces of information I asked the Inspector General for was the law or legal authority that the employee violated. As I read the response, none of 

these 12 cases involved either the phone records collection program 

under 215 or the collection program under 702. Is that correct? 

General ALEXANDER. That is correct, Senator. And if I could, also 

it is important to note this was over a decade. This went from 2003 

forward. And, you know, when you look at the number of casualties 

we had in Iraq, seven of those people, as you know, were NSA, of 

those 12. When you look at it, you are 3 times more likely to die 

defending our country in Iraq or Afghanistan than committing a 

willful and knowing violation against a foreign or U.S. person. 

Senator GRASSLEY. My last question on this is for Mr. Clapper. 

If you cannot tell us that America is safe, why then do you not simply use your authority to furlough fewer employees? 

Director CLAPPER. Sir, we are going to look at that. In fact, we 

are going to do it every day to see where we need to—what is the 

right talent set or analytic expertise that we need. We are doing 

that as we speak. So I anticipate, if this thing drags out, that we 

will make adjustments and probably recall more people, particularly in NSA’s case, since they have a heavy military population 

which are not furloughed. So early on, NSA has kept—has excepted 

a very low percentage of its civilian employees. I am confident—I 

am sure that over time that condition cannot continue. 

Chairman LEAHY. Unfortunately—one, I happen to agree with 

you, Director, what you say. Unfortunately, we have a law passed 

in the 1800s that is creating a real problem on the furloughing. It 

was passed at a time when nobody could have anticipated either 

the size of the Government or the complexity of Government, but 

it is tying your hands. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman. Welcome, gentlemen. 

We have identified terrorist threats to our country overseas. Correct? 

General ALEXANDER. Correct. 

Senator WHITEHOUSE. And we track their electronic communications. Correct? 
22 

General ALEXANDER. Correct, Senator. 

Senator WHITEHOUSE. Is it important to know who they may be 

in touch with within the United States, those terrorist threats that 

are overseas? 

General ALEXANDER. Yes, it is. 

Senator WHITEHOUSE. And they might be using intermediaries or 

cutouts between the principal that they are trying to reach and 

themselves. Correct? 

General ALEXANDER. That is correct. 

Senator WHITEHOUSE. That would be Tradecraft 101. Correct? So 

records of call and email connections are necessary to allow you to 

look for those networks. Correct? 

General ALEXANDER. That is correct. 

Senator WHITEHOUSE. Now, in the call and email connections are 

information that has for decades been declared by courts and demonstrated by law enforcement practice throughout this country to 

be not within the warrant requirement of the Fourth Amendment 

to the United States Constitution. Correct? 

Director CLAPPER. Correct. 

Senator WHITEHOUSE. So the program is legal, but it risks abuse. 

Director CLAPPER. You are right. 

Senator WHITEHOUSE. You concede to that. Could you describe— 

and if you want to fill this out with a request for the record, an 

answer for the record—the various oversight mechanisms and bodies whose job it is to assure that this program is kept within 

bounds that protect the privacy needs of American citizens? 

Director CLAPPER. Well, yes, sir. First, as General Alexander described—— 

Senator WHITEHOUSE. How many committees of Congress, for instance, have oversight over the metadata program? 

Director CLAPPER. Well, certainly the two intelligence committees 

do, and I think this Committee as well. 

Senator WHITEHOUSE. And here we are, so here is another one, 

and presumably House Judiciary Committee and subcommittees as 

well—— 

Director CLAPPER. Right, four. 

Senator WHITEHOUSE [continuing]. That are relevant, presumably. Correct? 

Director CLAPPER. Yes, sir. 

Senator WHITEHOUSE. The Subcommittee on Crime and Terrorism would have jurisdiction? 

Director CLAPPER. Could. 

Senator WHITEHOUSE. How many Inspectors General have—— 

Director CLAPPER. Well, the NSA Inspector General certainly; my 

Inspector General, who was Senate confirmed, does. So starting 

with the level of NSA itself, with the Director of Compliance that 

was set up in 2009 and, additionally, before shutdown, 300 compliance officers whose exclusive duty is to oversee the legal and technical aspects of this. That in turn is overseen by my office and the 

Attorney General as well as, of course, the FISA Court, which oversees these processes, as well, of course, as—— 

Senator WHITEHOUSE. Civil Liberties Advisory Boards? 

Director CLAPPER. I am sorry? 
23 

Senator WHITEHOUSE. Do you have Civil Liberties Advisory 

Boards? 

Director CLAPPER. I do. There is a Civil Liberties and Privacy 

Board, although I need to mention that is only for counterterrorism 

purposes. I have by law also a Privacy and Civil Liberties officer 

whose full-time job is to serve as the conscience for the entire IC 

on—— 

Senator WHITEHOUSE. If I could ask you just to fill—there is a 

lot, and if you could—I will make these questions for the record, 

if you could get that back, because I do not think there has been 

a clear and simple exposition of what all the different oversight 

mechanisms are, and I would like to get that for the record. 

I am concerned that in the wake of the Snowden incident—let me 

put it this way: It is not clear to me that any legal redress is being 

considered or sought against either Dell or Booz Allen Hamilton, 

the employers of Snowden at the time that he committed his unauthorized release of classified information. I do not have the information before me to make a detailed analysis of whether the basic 

doctrine of respondeat superior would apply, which makes the employer liable if the agent acted within the course and scope of his 

employment or whether this would be an ultra vires act of some 

kind. But my concern is that there—I am not aware of even any 

conversation about that. And as we have seen from classified programs in the past, there is a danger that the private contractors 

managing the program begin to wag the dog and that we become 

so dependent on our private contractors that we cannot seek legal 

redress for their misdeeds because, frankly, they are now the ones 

who we depend on to the extent that we cannot use the authorities 

that are pertinent to us as customers. 

General ALEXANDER. Senator, when this incident broke, I flew 

out to Hawaii with some of our folks and talked to the people that 

were involved, including the contracting officer representatives, 

past and present, and what we had done and working with our 

folks on this. 

I will tell you that one of the contracting officer representatives 

did exactly what you would expect her to do. When asked to get 

access to some of this, she denied it to Snowden formally. He 

worked around that, those procedures. But I think you can see that 

those things—so we have asked our folks to look at this. We do 

have that question from you, and I would like to take that for the 

record, if I could, to get you the answer. 

Senator WHITEHOUSE. Good. I just want to make sure that they 

are not too big to sue. 

General ALEXANDER. Right. 

[The information referred to appears as a submission for the 

record.] 

Chairman LEAHY. Thank you, Senator Whitehouse. You have 

asked the question I want to emphasize. I am very interested in 

that answer, too. 

Senator Hatch is gone. Senator Sessions. Sorry. One of the problems of a broken rib, it is harder to turn around and check on you, 

but, Senator Sessions, go ahead. 

Senator SESSIONS. Thank you. This is an important hearing, and 

I thank you all. I would just note that the House has repeatedly 
24 

passed funding, Director Clapper, to restore the Defense Department and not allow the sequester cuts to occur. And I hope you 

have not forgotten the way to 1600 Pennsylvania Avenue. I believe 

the Commander-in-Chief has a responsibility here, too, and the 

law, the Budget Control Act, of which sequester was a part, required us to maintain a certain level. Whole agencies and departments have gotten zero cuts and Defense has gotten too much, in 

my opinion. The House has tried to reconcile that, and I hope 

somehow we can soon alleviate some of the stress on the Defense 

Department and the intelligence community. 

So, number one, I visited NSA, General Alexander, and I was so 

impressed with the leadership there and the people I met, and I 

have said that publicly. So I was deeply disappointed—hurt, really—to hear that somebody had looked at their girlfriend’s messages 

and that kind of thing. Are you saying that all of that was abroad 

first? 

General ALEXANDER. Senator, nine of those were abroad, three 

were CONUS but involved persons abroad on two of those, and one 

was on a spouse or girlfriend—— 

Senator SESSIONS. Well, there is a great temptation there. I trust 

that you stepped up your emphasis and your determination not to 

allow that to happen. Even though it is not a large number, it is 

still unacceptable. 

General ALEXANDER. Absolutely. And I will tell you that what 

Senator Grassley brought out in the letter that we sent to him, we 

are also putting out to our workforce so that more people understand what has happened to those people, because when you read 

that—— 

Senator SESSIONS. They have all been disciplined? 

General ALEXANDER. All but one, and in that case, the case was 

insufficient. I do not have the disciplinary actions in that one, but 

all either retired, resigned, received Article 15s, or letters of reprimand with additional consequences. 

Senator SESSIONS. Well, I think Senator Whitehouse—and he is 

a former United States Attorney, Federal prosecutor—clarifying 

something, and, General Alexander, let me just ask you again: So 

when you are looking at the metadata, you are referring to numbers, phone numbers, email addresses perhaps. No messaging are 

in this data. Is that right? No substance of a communication? 

General ALEXANDER. That is correct. And, Senator, in the 

metadata program, it is only phone numbers. There are no email 

addresses in it. 

Senator SESSIONS. Now, Senator Whitehouse in his time as 

United States Attorney probably issued subpoenas, thousands, 

maybe ten thousand. In my 12 years as United States Attorney, no 

telling how many thousand subpoenas we have issued—— 

Senator WHITEHOUSE. Rhode Island is more law-abiding than 

that, Senator Sessions. 

[Laughter.] 

Senator WHITEHOUSE. It was just in the hundreds. 

Senator SESSIONS. We had plenty of crooks in my district, I can 

assure you. 

[Laughter.] 
25 

Senator SESSIONS. The point of which is, it does not require a 

search warrant to obtain from the telephone company the person’s 

call records. That is done by simple subpoena without—it is simply—and the test is: Is it relevant to the investigation? So if somebody is thought to be a member of a gang and he says he does not 

know Bad Guy 1 and you subpoena his records and he has got 50 

phone calls and 20 of them were within an hour of the crime occurring, then that is hugely valuable, and that is just done all the 

time. 

So we need to understand that the fundamental process here is 

well within, it seems to me, the traditions of our ability to subpoena—the records are in the possession of the phone company. 

They are the phone company’s records. They are not your personal 

records. And that is the difference in it. 

Senator Feinstein’s story was so fabulous, Mr. Clapper. It just 

laid the whole structure out for us. I know you have said this before, but could you tell us, did these leaks negatively impact your 

ability to be as effective as otherwise if they had not happened, and 

did it hurt our ability to identify an attack in the future? 

Director CLAPPER. To my mind, there is absolutely no question 

about that. We are already seeing signs of changes in target behavior because of their awareness as a result of the revelations in 

these unauthorized leaks. It has done great damage to partners 

overseas and our relationships with them. People’s lives are at risk 

here because of data that Mr. Snowden purloined. So the damage, 

the full extent of it is yet to be measured. 

Senator SESSIONS. Well, I thank you for your work, and my impression from the people I have met at NSA is that they are dedicated, wonderful Americans who are working every day to preserve 

and defend this country, unlike Mr. Snowden, who damaged this 

country. And, fundamentally I think that we can do a better job of 

monitoring it, and the American people, I am glad to say, are alert. 

They are not going to tolerate abuses, and they should not. And the 

press has a right to do their job within the realm of law. But I hope 

that—it is unthinkable that we would dismantle this program, and 

I would certainly oppose that. 

Thank you, Mr. Chairman. 

Chairman LEAHY. It appears a lot of it is being dismantled by 

the Government shutdown, but that is just my view. 

Senator Klobuchar. 

Senator KLOBUCHAR. Well, thank you, Director and General. 

Chairman LEAHY. And I would note that in about 15 minutes I 

am going to be slipping out, not because—I am telling you in advance so you will not think it is because of anything you said. Senator Blumenthal is going to take over the chair. 

Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much, Director and General. I want to go back to some of your earlier comments about the 

effect of the shutdown on the intelligence community. I think it is 

very important as we sit here today. I note that in your testimony 

you talked about how 966 Ph.D.s, 4,374 computer scientists, really 

72 percent of the civilian workforce in the intelligence community 

are not going to be able to do their jobs right now, and that includes people who are connecting and collecting signals, engineers 
26 

who put the systems back together, people who are on the ground 

across the world. 

You indicated that the law requires you to furlough employees 

not involved in addressing an imminent threat. Is that right, Director Clapper? 

Director CLAPPER. That is correct: against an imminent threat to 

life or property. 

Senator KLOBUCHAR. But is it not true that a threat that is not 

considered imminent today could be imminent tomorrow? 

Director CLAPPER. Exactly. That is why we have to manage this 

on a day-to-day basis as best we can. 

Senator KLOBUCHAR. So you would have to figure out if a threat 

is imminent and spend time doing that with your lawyers and then 

add someone back in? 

Director CLAPPER. That is exactly right, and we will have to 

shuffle people in and out depending on what we believe the concern 

of the day is. 

Senator KLOBUCHAR. But you clearly see it as a risk to security? 

Director CLAPPER. Absolutely. 

Senator KLOBUCHAR. And in your assessment, how much risk are 

we exposed to because we have had to furlough our intelligence 

professionals who are covering issues that you cannot define right 

now as ‘‘imminent’’? 

Director CLAPPER. Well, I do not know if you want mathematical 

quantification, but certainly on a percentage of our civilian professionals, you know, the risk is, you know, 75 percent more than it 

was yesterday, I guess. 

Senator KLOBUCHAR. Thank you very much. I think that is pretty 

significant. I appreciated Senator Feinstein’s comments she made 

on the floor about this, and I know she cannot give out all the information, nor can you. But I think people have to understand that 

this is a significant layoff that we are dealing with right now, temporary as it may be. These threats, as I have learned, change from 

day to day, and you need people on the ground to be able to respond to them. So thank you for that. 

I wanted to go back. I thought our July 31st hearing was good 

and informative on the surveillance programs, and then right after 

that, I was a little surprised—and I know the Chairman mentioned 

some of this, but in mid-August the media began reporting about 

an internal audit from May 2012 which found that the NSA violated privacy rules over 2,000 times. We have gotten into some of 

those facts and what that really means, and I am just concerned 

about why that did not come out during the hearing. 

General ALEXANDER. So, Senator, every quarter, internal to NSA, 

we put together compliance reports that track both under the Business Records FISA, 702, 703, –4, and our Executive order. We compile that because we hold our people accountable to it. 

Included in there are incidents. These are not privacy violations. 

These are incidents. And then we pass those up to the Department 

of Justice, to DNI, so that everybody knows that everything that 

we see has been tracked. It is important to note that the majority 

of those, roughly 75 percent, of those incidents are not privacy violations. Those are us tracking—— 
27 

Senator KLOBUCHAR. No, I understand that. My point is more of 

a process one, that we have a hearing and then we find out a week 

later that these audits were out there that we did not learn about 

at the hearing. 

General ALEXANDER. Yes, so I think what we were going over, we 

have a number of incidents that we track on 702 and 215. That is 

what we are talking about here. Most of these incidents that are 

in these reports reflect us typing in a wrong number, doing a 

search on Individual A overseas. So these are what we will call 

minor violations. The major ones were the ones that we brought 

up, which were—— 

Senator KLOBUCHAR. Okay. I actually do understand—— 

Director CLAPPER. I think the answer to your question, Senator, 

is that the subject matter of the hearing was 215 and 702, and 

these 12 violations over 10 years occurred under—the foreign collection under the auspices of Executive Order 12333. 

Senator KLOBUCHAR. All right. It is just that I thought we were 

kind of broadly asking questions, and it would have been nice to 

have heard about it there, but that is behind us now, and I want 

to talk about some of the reforms that have been suggested. You 

know, there is legislation out there. One of the reforms that President Obama has supported is the idea that we would have a privacy watchdog installed at the NSA, and an intelligence community 

website would be created to disseminate public information on the 

activities. What is the status of these reforms? 

General ALEXANDER. So on the first one, we do have a hiring action out on the street. It is probably stopped right now because of 

the furlough, but we do have one for our civil liberties privacy advocate for NSA. 

Director CLAPPER. And we have activated a web page under my 

office to put out this data. 

Senator KLOBUCHAR. Okay. And you suggested a court-appointed 

amicus for cases that involve novel and significant questions of law. 

I am just interested in how this would work in practice. What is 

an example of a novel and significant case? 

Director CLAPPER. Obviously, we are getting a little out of our 

compartment here and more into the Department of Justice, but 

some form of an advocate or amicus who would be a participant 

when called upon by the court to address issues of law or major 

surveillance questions. But I think we would need to defer to the 

Department of Justice on exactly the mechanics of how the administration would recommend that work. 

Senator KLOBUCHAR. Okay. Thank you. And did you want to add 

anything, General? 

General ALEXANDER. I agree with what he said. I learned what 

an amicus was during these briefings, so it has got to—— 

Senator KLOBUCHAR. Okay. Well, I will have some follow-up 

questions on the record, but I did want to again emphasize that it 

is really important that people understand that 72 percent of the 

civilian workforce of the intelligence agencies is now on furlough 

and the effect that that could have on our national security and the 

reason that we have to end this shutdown. 

Thank you. 

Chairman LEAHY. Senator Graham. 
28 

Senator GRAHAM. Thank you both for your service. From my 

point of view, I am sure every organization makes mistakes, and 

if anybody has abused these programs to spy on their spouse or to 

spy on their neighbor or to do something in that fashion, I hope 

they go to jail, because I think most of the people in the NSA would 

like that outcome, because that is not exactly what you are there 

to do. Do you agree with that, General Alexander? 

General ALEXANDER. Senator, I agree that they should be punished, and depending on the action, how harsh—— 

Senator GRAHAM. Yes, I mean, whatever the appropriate punishment is, but they are outliers. 

General ALEXANDER. That is right, Senator. In fact, two of them 

were done under Field Grade Article 15s. 

Senator GRAHAM. Right. 

General ALEXANDER. And when you actually look at what they 

did, you can see that, okay, we trained them, they immediately did 

something wrong, they got no return. Oh, by the way, they just 

asked the question. They did not get information back. But they 

did something wrong, and they were held accountable. 

Senator GRAHAM. Good. The point is that when you do things 

wrong, you should be held accountable. When you do things right, 

you should be appreciated. I think both of you are trying to do 

things right to protect our Nation, and I appreciate everybody that 

works for you, because I know many of them, and they are patriots 

as much as anybody who criticizes the program. 

All right. Did you tell the President of the United States what 

you just told us, that because of the Government shutdown, our 

Nation is less secure? 

Director CLAPPER. Yes, I did. 

Senator GRAHAM. What did he say? 

Director CLAPPER. We discussed it yesterday. 

Senator GRAHAM. Well, you just scared the hell out of all of us— 

at least I am scared, when you are telling me that 70 percent of 

the NSA is unable to go to work, not because they are necessary 

but because of the statute, the way it is worded. Both of you made 

very clear presentations to this Committee that the Government 

shutdown in a post-9/11 world is making this Nation less safe. Is 

that right, General Alexander? 

General ALEXANDER. That is correct, Senator. 

Senator GRAHAM. Is that right, Mr. Clapper? 

Director CLAPPER. Absolutely. Yes, sir. 

Senator GRAHAM. Well, to Mr. Gibbs, who told the President— 

his political adviser, former press secretary, he advised the President to just watch the shutdown. Do you think that is a responsible 

thing for the President to do as Commander-in-Chief, to not negotiate or just watch the shutdown? 

Director CLAPPER. Well, I am not going to—I would like to avoid 

the—— 

Senator GRAHAM. Well, you do not have to. I will give you my 

own opinion. I think it is irresponsible for all of us to let it continue, but where the hell is the Commander-in-Chief? If you really 

told him that, that our Nation is less safe and every day that goes 

by we are being less capable of detecting potential terrorist attacks 

against the homeland and the approach is to just watch time go by, 
29 

why are the Members of the House and the Senate not in the 

White House right now to try to solve this problem? 

One of two things is true: You are telling us the truth, and the 

Federal Government leadership on both sides are ignoring it, particularly the Commander-in-Chief; or, you are overstating the case. 

I think you are telling us the truth, so I am not even going to go 

down the road you are overstating the case. But I want the American people to know there are shutdowns before 9/11 and there are 

shutdowns after 9/11, and there is a huge difference. And for the 

President of the United States, for our House Democrats to not negotiate, is irresponsible. For our Republican Party not to try to find 

a way to end this mess is irresponsible. So I hope that the President will do more than watch. 

Now, about 9/11, General Alexander, if we had had the technology and the programs in place today before 9/11, what would be 

the likelihood that we would have detected that attack? 

General ALEXANDER. Senator, in my professional opinion, it 

would have been very high. 

Senator GRAHAM. Do you agree with that? 

Director CLAPPER. I do. 

Senator GRAHAM. I am here to tell the American people, if we 

had in place today before 9/11, the 19 hijackers who were here in 

the country, most of them in legal status, talking to people abroad, 

we would have known what they were up to. We would have 

known why the guy was just taking flying lessons to take the plane 

off and did not care about the part of the flying lessons to land it, 

which was kind of odd to me—I want to pay for flying lessons, but 

I do not care to learn to land the plane. 

So at the end of the day, my question to both of you is simple. 

Let us reform this program where it has gotten out of line. Let us 

be sensitive to the political—to the constitutional rights we all 

have. But here is my question: What is being proposed in terms of 

reform, will it make us less able to detect the next 9/11? Are we 

going back to that pre-9/11 mentality? That is the question for me. 

Is the Congress taking us back to a time when we could not pick 

up a threat that was right in front of us? 

Director CLAPPER. Well, Senator, there are several proposals that 

have been proposed in the form of bills, and I guess our basic reaction to this is we are open to changes to make this more transparent, for more oversight, but in doing so we do not want to overcorrect such that we lose the operational utility and the agility of 

these programs. 

Senator GRAHAM. Same for you, General Alexander. Will you tell 

me when you think we have crossed that line? 

General ALEXANDER. Senator, absolutely. I feel it is my responsibility to tell you and the Director of National Intelligence and the 

President that they are going to hurt us. 

Senator GRAHAM. Very quickly. About the times in which we live, 

are there active efforts by terrorist organizations to penetrate the 

United States? 

General ALEXANDER. Yes. 

Director CLAPPER. Absolutely, yes, sir; as we speak. 

Senator GRAHAM. Do you believe there are people probably already here as part of a fifth column movement? 
30 

Director CLAPPER. There are sleeper—there is sleeper presence, 

absolutely. I would not call it a unified fifth column. There are various entities—— 

Senator GRAHAM. Fair enough, and I will end with this thought. 

My goal is to make sure that if a known terrorist, al-Zawahiri, who 

took bin Laden’s place, if he is calling someone in the United 

States, I want to know who he is talking to. Is that a fair thing 

for me to want for my country? 

Director CLAPPER. Yes, sir, and I think it is a fair requirement 

for any citizen. 

Senator GRAHAM. And is it also fair to say that before you can 

keep the content or do something with the content, you have to get 

a warrant? 

Director CLAPPER. Yes. 

Senator GRAHAM. Last thought. Are we at war as a Nation with 

radical Islam, or are we fighting a crime? And what is the difference when it comes to gathering intelligence between fighting a 

war and fighting a criminal enterprise? 

Director CLAPPER. Well, one difference—and it is more of a 

tradecraft difference—is the evidentiary standard that we struggle 

with since we are dealing with wispy hints, bits and pieces of information that probably do not necessarily meet the probable cause 

standard. That is another consideration we have with changes to 

these laws. 

General ALEXANDER. Senator, I do believe it is a war on terrorism, my words, and that what we are seeing today is going to 

get worse with what we are seeing go through the Middle East, 

what is going on in Syria, the actions in Iraq over the last week, 

and in Afghanistan. The week concluding 23 September, 972 people 

were killed in Kenya, Yemen, Syria, Iraq, Afghanistan, and Pakistan, and over 1,000 injured. When you look at what we—the relative safety we have here, it is no accident. It is the work of our 

military and our intelligence community keeping this country safe, 

and we need the tools to do that. 

Senator BLUMENTHAL [presiding]. Thank you, Senator Graham. 

Senator KLOBUCHAR. Mr. Chairman, I just wanted, in response 

to Senator Graham, to let him know that a few minutes ago the 

White House just announced that the congressional leaders had accepted their invitation to come and meet today. So they must have 

heard you from here, but also, again, if we would pass the Senate 

bill, the House would pass the Senate bill, then the shutdown 

would end. I think that is important for people to know. 

Senator BLUMENTHAL. Thank you, Senator Klobuchar. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Director Clapper, General Alexander, you and your employees 

protect our country, and I am grateful for that. Thank you. 

I have a bill, the Surveillance Transparency Act, that will address what I think is the central problem in this debate, and that 

is the fact that, despite the large amount of Americans’ information 

that is being collected under the foreign intelligence law, those 

laws lack any substantial public reporting requirements. The Government does not have to give even a rough estimate of how many 

Americans’ information is being collected, and it does not have to 
31 

tell Americans how much of their information is actually seen by 

national security officials. 

What’s more, the companies that get information requests are 

under strict orders, strict gag orders, so they are not allowed to 

give the public information. 

The American people are smart. They understand that we need 

to give weight to both national security and civil liberties. But 

when the public lacks even the most basic information about the 

scope of these programs, they have no way of knowing if we are 

getting that balance right. 

My bill would change this. It would make the Government give 

annual statistics on the number of Americans’ information collected 

and the number whose information is actually reviewed. It would 

also let companies disclose agreements and disclose aggregate statistics on the number of requests they get and the number of accounts affected. 

I am very pleased to report that yesterday morning America’s 

leading tech companies from Apple to Google to Microsoft to 

Facebook to Twitter to Yahoo, all of these companies sent a letter 

supporting my bill, urging this Committee and Congress to pass it. 

And, without objection, Mr. Chairman, I will enter a copy of this 

into the record. 

Senator BLUMENTHAL. Without objection. 

[The letter appears as a submission for the record.] 

Senator FRANKEN. For my first question, I just want to give an 

example of why I think greater transparency is so desperately 

needed. As Senator Grassley and Senator Leahy indicated, this 

past Saturday, The New York Times ran a story alleging that NSA 

gathers data on the social connections of U.S. citizens. The article 

gave a series of examples of the kind of sensitive data that is allegedly collected to create detailed graphs of some Americans’ social 

connections. Both of you have clarified some of the inaccuracies in 

that story. 

But here is the thing. If Americans knew that this kind of collection was limited to a small number of people, people who we have 

reason to believe are foreign agents or involved in terrorism, I 

frankly think that most of them would be fine with that. But there 

is nothing in that article that gives any sense of whether this affects tens or hundreds or thousands or millions of people, and that 

is because the information just is not out there. This lack of information, frankly, scares people and causes distrust. It makes them 

distrust our Government. 

Director Clapper, General Alexander, don’t you think that this 

just underscores the need for greater transparency about our surveillance programs? 

Director CLAPPER. Absolutely, sir, it does, Senator Franken, and 

just a couple comments about the bill. 

We were already, I think, in agreement on releasing the total 

number of orders or other process issued under various national security authorities, including FISA, and the total number of targets 

affected by those orders. And we are fine with allowing the providers to release annually the total number of Government requests or orders they receive for information about their customers 
32 

and the total number of targets affected by those orders and certifications. 

What we are concerned about, just to be up front here, is the 

stipulation on a company-by-company basis, because then that 

gives the adversaries, the terrorists, the prerogative of shopping 

around for providers that are not covered. 

I do agree with you about doing all we can to assure the public 

of what a small proportion of these records are actually looked at. 

A case in point with 215, while the metadata stood at rest in essentially a lockbox, there were, I think, only 288 queries that were actually made, which is actually in the total scheme of things a minuscule part of the records. 

Senator FRANKEN. That is sort of the point. I will let you answer 

the question, General, but I just want to respond to that. Those are 

good, positive steps that you are talking about. But I have to be 

honest. I think it is just too little and it is not permanent. You 

know, first of all, the numbers of orders will not tell us all that 

much. 

For example, in 2012, there were only 212 orders issued under 

Section 215 of the PATRIOT Act. That seems like a small number, 

but now it has been declassified that a small number of those orders allowed the Government to collect substantially all of the telephone metadata handled by most of the country’s leading telephone 

companies. What is more, these disclosures do not reveal even an 

estimate of how many Americans had their information collected, 

which you just mentioned. So I do not understand why we cannot 

mention that as part of the law. And what you are doing is sort 

of voluntary, and it is not permanent. So if you would change policy 

and we get another administration in that wants to change the policy, then that does nothing. 

General ALEXANDER. Could I add to this? On the 288, the 288 

numbers were approved for reasonable, articulable suspicion to 

then do queries on. 

Senator FRANKEN. Okay. So queries are the higher number. 

General ALEXANDER. You might do it twice in a week, so that 

would actually be—but only 288 numbers. I think that is a key 

point. 

I agree with transparency and with what Director Clapper has 

put out. There are two parts of this. He mentioned the first part. 

The second is those companies that are compelled, especially under 

702, are compelled to cooperate with the Government. They are not 

throwing NSA any information. They are not doing something inappropriate. And it is interesting to note that other countries demand the same of them. 

And so what our companies are doing is what our Nation needs 

them to do to help us stop terrorists and other acts. They are compelled in other countries in a lawful intercept way just the same. 

And so I think out of this, one of the things that concerns me is 

those companies who have acted on good faith—and you mentioned 

several of them—they are trying to do the right thing that we as 

a Nation have asked them to do, and it is being blown way out of 

proportion as if they have opened up their servers and stuff, and 

you now know that is not true. 
33 

So I do think the transparency is very important because it tells 

you the numbers, and I think people would stop and say, ‘‘Well, 

that is it?’’ And I think—so we have just got to figure out how to 

do that in such a way as to not tip the bad guys off to go to Point 

A or B. Does that make sense? 

Senator FRANKEN. Yes. Mr. Chairman, could I—I know others 

have gone over their time. We do not get these two witnesses before us very often. Can I just ask one last quick question? 

Senator BLUMENTHAL. I know if I denied you that opportunity, 

I would hear about it forever, so I am going to say yes. 

Senator FRANKEN. I am not sure what that says about me, or 

you, but—— 

[Laughter.] 

Senator BLUMENTHAL. I just thought I would be your straight 

man, as usual. 

Senator FRANKEN. Yes, thank you. 

I think one of the issues—there is trust and distrust, et cetera, 

that issue. One of the issues is the ability to—we see Snowden, a 

contractor, and he releases all this stuff. Has there been any 

thought given to doing—and where are we on thinking about this— 

two key or three key situations where, you know, I know that on 

some of the stuff that has been leaked that there is—and I have 

been briefed that we have used backups where someone does something, other people are alerted to it. Is there any change that we 

are making, we are talking about making in the way that stuff is 

accessed? 

General ALEXANDER. We are making significant changes, and we 

can send you the complete report, because some of it gets into a 

classified area, but we have implemented the two-person control on 

devices into certain rooms and stuff, and we are piloting part of 

that for the intelligence community, but I will let the Director—— 

Director CLAPPER. Well, there are two things underway, sir, that 

we have to—which are not going to be fixed by close of business 

next Friday. One is to go to a system of continuous evaluation for 

people who are cleared as opposed to the current system where 

someone is given an initial clearance and then they go 5 years or 

more for a top secret clearance or 10 years for a secret clearance. 

That system has got to change so we can do this continuously. 

Moreover, we have to finish what was started in the aftermath 

of WikiLeaks for insider threat detection. So we have more comprehensive means of detecting anomalous electronic behavior of 

people on the job. I can give you a lot more detail on that if you 

would like for the record. 

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

Senator BLUMENTHAL. Thank you, Senator Franken. 

Senator Flake. 

Senator FLAKE. Thank you, Mr. Chairman. Thank you both. 

Let me follow a little bit on the lines of Senator Graham’s comments. I was not here for your initial testimony, but I understand 

and I read from the press reports, Director Clapper, that you 

talked about the furloughs and about the shutdown and the negative impact that is having on the intelligence services, and I certainly get that. 
34 

As you are aware, 2 days ago we passed through legislation 

quickly, very quickly, unanimously, to protect the military from 

this shutdown. Have you recommended to the President that he 

recommend to the Congress that we do something similar for the 

intelligence services? If this is, as you have put it, a ‘‘dreamland’’ 

for our enemy here, would that not be appropriate? 

Director CLAPPER. I certainly think it would be, and, of course, 

the support to the military, particularly in the case of DOD, involves three combat support agencies, one of which is NSA, who, 

although funded in the National Intelligence Program, are providing support to the military day in and day out. So I would be 

a strong supporter of that. 

Senator FLAKE. Right. I understand there is some overlap. But 

where there is not, and you are mentioning 70 percent of civilian 

employees in the intelligence agencies have been furloughed. Is 

that correct? 

Director CLAPPER. That is as of yesterday. Now, as I also hasten 

to point out, we are going to manage that on a day-by-day basis. 

Senator FLAKE. Right. 

Director CLAPPER. Right now, for example, NSA has a very low 

number of excepted civilians, depending on their military population, which, of course, was not furloughed. To the extent that this 

shutdown drags on, we are going to have to make some daily adjustments and make judgments about bringing people back on a 

day-to-day basis. 

Senator FLAKE. Well, I would hope, if the situation is as dire— 

and only you know. We do not have access day to day to the intelligence here. But if it is as you say—and I believe that it probably 

is—then I would believe it would warrant the President saying, 

okay, whatever you do, however long this is going to last, we have 

got to make sure that we are collecting the necessary intelligence. 

I can guarantee you both the House and the Senate would move 

expeditiously to do this, so if it really is a problem—and I believe 

it is—I trust that you will make that recommendation to the President. 

Director CLAPPER. Yes, sir, I will. And, again, I would—I am not 

sure you were here, but I would again commend the statement that 

Senator Feinstein made on the floor yesterday about this. 

Senator FLAKE. Thank you. 

General Alexander, last June I questioned the FBI Director with 

regard to the retention of data collected under—the metadata 

under 215. He testified that data collected under 215 is scrubbed 

every 5 years, or after 5 years, I think on a rolling basis. Is all 

metadata collected under other authorities also discarded after 5 

years? 

General ALEXANDER. So for NSA, it depends on the type of data. 

So in the metadata repository for 215, as you stated, it is aged off 

after 5 years by court direction. If there is a report, that, of course, 

would not be aged off. That report will stand just like other intelligence activities. 

Within the Executive Order 12333 metadata repositories, it depends on the size of the repository and the type of data that is 

being done, but generally speaking, it is 5 years. There may be 

pieces of information that we retain longer than are of intelligence 
35 

value overseas that are different than the ones we have in the 

United States. But that is all that NSA has in those areas. 

Senator FLAKE. I understand that foreign is handled differently. 

But if you have metadata that is collected under separate authorities, not just 215, is that bunched together in a way that it is retained beyond 5 years? Or how do you separate it? Do you hold it 

separately? How does that work? 

General ALEXANDER. So NSA—I do not know of any other programs that would collect metadata in the United States outside of 

215. We do not have any that I know of, and none have come up. 

So from my perspective, those would be with other agencies—yes, 

and the overseas is the one I explained. Does that make sense? 

Senator FLAKE. Okay. 

General ALEXANDER. So I do not have any other. Telephone, 

there was an old program that we talked about, you know, that 

was stopped a few years back, and all that data was destroyed. 

That was on email. So we do not have any—— 

Senator FLAKE. I trust when you say that there are no programs 

that I know of that you would know of them. 

General ALEXANDER. Hopefully so, especially after the last 31⁄2

months. 

Senator FLAKE. Thank you, Mr. Chairman. 

Senator BLUMENTHAL. Thank you, Senator Flake. 

Senator Coons. 

Senator COONS. Thank you, Mr. Chairman, and thank you, General Alexander and Director Clapper, for your testimony and for 

your service. I do think that the way for us to proceed is not to 

have—sort of carve out simple exceptions for different pieces of the 

National Government that we all consider vital to our security, but 

to end the shutdown, which Speaker Boehner can do at any moment by simply taking to the floor what has been passed by the 

Senate and allowing an open vote on it. But I will take seriously 

into account your expressed concerns. It does seem to me alarming 

if more than 70 percent of your civilian workforce is furloughed, 

and it is my hope that you will be reviewing on a rolling basis 

whether or not this is exposing us in any significant way. Your 

comments at the outset were a reminder. 

I, as you may know, also chair the Africa Subcommittee and recently spoke to our Ambassador in Kenya about the ongoing investigation and things we need to learn and be more attentive to that 

comes out of that tragically significant event in Nairobi. 

I do think that the work of the intelligence community is valuable, but as many of my colleagues have spoken about, events over 

the last few months have raised real concerns across the country, 

and I appreciate your stated interest in finding a better balance between transparency, civil liberties, a commitment to privacy, and 

yet fulfilling your duties. 

So let me, if I might, turn to that because there are a number 

of pieces of legislation introduced, being considered by Members of 

this Committee, that I think can make some positive contribution 

to resolving the legitimate anxiety many Americans feel about 

whether their privacy is being appropriately taken into account. 

General Alexander, you have argued both here and in other contexts in support of bulk collection that, in order to find the needle 
36 

in the haystack, you have to have the haystack. But the very fact 

the NSA can tell so much about a target through detailed analysis 

of non-content bulk data, metadata, indicates to me that there is 

at least some privacy interest at stake—maybe not a constitutional 

privacy interest given current constitutional doctrine, but a privacy 

interest in the sense that the NSA can cobble together through 

these random threads, can weave a profile of a person that can ultimately contain quite private details. 

Shouldn’t Congress be concerned about protecting that sort of 

privacy interest against unwarranted intrusion, or you? And what 

do you suggest we should do about this together? 

General ALEXANDER. Well, I think given the standard and the 

way it has been written, this is a lower standard than probable 

cause. Now, I am not a lawyer, so I would defer to Justice. But 

what we are talking about is in each case, when we go to query 

the Business Records FISA, we start out with a selector: Is it associated with al Qaeda or associated terrorist groups? So that is the 

nexus of our question. And it is really what you would want us to 

do, and it is the least intrusive. 

What we are doing is, we will look at that, create one, two, and 

potentially three hops out, and see if there are other nexus and 

numbers of interest. We know no names on the U.S. side. It is just 

numbers. If we see that, and other connections to foreign from 

some of those numbers, we would then tip that to the FBI. The FBI 

would then go through the appropriate process, and in this case 

they would have to come up with a probable cause standard to go 

after the content there. 

That was a long-winded answer to say—and I apologize for 

that—I believe the appropriate standard is there, and the courts 

agree with it. And I think Judge Eagan’s statements were really 

pretty good in this area. They were excellent. We try to do that by 

ensuring that every time we look at it, you and others can audit, 

see what we did. You know, we audit it, we document it, and it is 

from my perspective very precise in what we do. Then and only 

then do we look into the data. 

So what that means from my perspective is the chances of my 

number being looked at are so many zeroes out that I am comfortable. My data, I am sure, is in there. 

Does that make sense? 

Senator COONS. That is a helpful answer. 

Director Clapper, I would be interested then, given the answer 

just given by General Alexander, if you can articulate for the 

American people why the Government ought not to be required to 

show that the information, such as bulk data, that it seeks under 

our surveillance authorities pertains to an agent of a foreign power, 

his activities, or persons with whom he is in contact, rather than 

this mere relevance standard? 

Director CLAPPER. Well, as we mentioned earlier—and, again, we 

are getting into the lawyer area here, but—— 

Senator COONS. This is the Judiciary Committee. We have a 

tendency—— 

Director CLAPPER. I understand. I think the difference here is in 

the evidentiary threshold or evidentiary standard for a probable 

cause versus what we deal with in intelligence. And all we are 
37 

looking for here are investigatory leads which may not necessarily 

meet the probable cause standard. Ergo, we have relied on this reasonable, articulable suspicion as the basis for that. 

Now, one of the proposals that has been made is to have greater 

court scrutiny of these RAS determinations. I think we would be 

fine with doing that after the fact on a regular periodic basis so 

that any of these queries made under a reasonable, articulable suspicion standard as opposed to probable cause, which is higher, we 

would be fine with. 

Senator COONS. Well, what we are going to pursue is sort of reasonable suspicion of what, and so one of the ways that I think we 

can deal with this yawning gap of sort of trust and confidence by 

the American people about their privacy and your charge to defend 

our security is by narrowing in on exactly what is the standard 

under which these searches are being conducted. And I also will 

simply repeat what I think was Senator Franken’s solid point, that 

you have made some very significant progress in terms of transparency and commitment to response to congressional oversight, 

but temporary changes in policy and practice do not provide lasting 

assurance. Changes in statute will. 

Director CLAPPER. I completely agree with that, that if these 

changes, whatever they are, are embedded in law, that will 

instantiate a degree of permanence that our doing it administratively would not. 

Senator COONS. Thank you. 

Thank you, Mr. Chairman. 

Senator BLUMENTHAL. Thank you, Senator Coons. 

Senator Cruz. 

Senator CRUZ. Thank you, Mr. Chairman. 

Director Clapper, General Alexander, I thank you for being here. 

I thank you for your service to our Nation. 

I would like to address two topics: one, the issue of the impact 

of the Government shutdown on the intelligence community, and 

then I would like to follow up with some specific questions about 

the many privacy concerns that have been raised. 

With respect to the shutdown, I think the testimony that the two 

of you have provided today is deeply disturbing. That 70 percent 

of the civilian intelligence force has been furloughed is reason for 

concern to everyone, and I very much agree with Senator Lindsey 

Graham who observed that the person who should be most out 

front correcting this is our Commander-in-Chief. And I do not believe President Obama should be playing politics with this. He 

should not be refusing to negotiate or compromise. He should be 

stepping forward to correct this problem right now. 

As Senator Flake noticed, this week we saw what Congress can 

do when there is a bipartisan cooperation to address a need, namely, earlier this week the United States unanimously—the United 

States Senate unanimously passed legislation that the House had 

already passed to fund the men and women of our military. It was 

the right thing to do. I took to the Senate floor to commend Majority Leader Harry Reid for not objecting to that legislation, for 

agreeing not to hold the men and women of our military hostage 

regardless of what happens in this Government shutdown. 
38 

Director Clapper has presented a recommendation here to this 

Committee today that the intelligence community needs to be funded, and I have heard the concerns raised by my friend Senator 

Klobuchar, my friend Senator Coons. I hope we can see bipartisan 

cooperation today, Republicans and Democrats in the Senate agree 

to come together today to pass a clean continuing resolution funding the Department of Defense and our intelligence communities. 

If the Senate cooperates, we could get this passed by the end of the 

day. We could respond to the national security threat these two 

gentlemen have laid out. And the only impediment to doing so is 

the prospect that Majority Leader Harry Reid would object to doing 

so. 

If, God forbid, we see an attack on the United States because the 

intelligence community was not adequately funded, every Member 

of this Committee would be horrified. So I hope that issues of partisan politics can be set aside and we can all come together and 

pass right now by the end of the day a continuing resolution to 

fully fund the Department of Defense and the intelligence community. I hope President Obama, I hope Majority Leader Harry Reid 

hear and respond to the candid and heartfelt recommendation, Director Clapper, that you presented here today. 

Let me move on to the second topic: the issue of privacy. General 

Alexander, in a recent Senate Intelligence Committee hearing, 

when asked about whether the agency wants ‘‘the phone records of 

all Americans,’’ you testified, ‘‘I believe it is in the Nation’s best interest to put all the phone records into a lockbox that we can 

search when the Nation needs to do it.’’ 

Besides phone records, what other records of all American citizens do you believe the Federal Government should be collecting? 

General ALEXANDER. I cannot think of any right now. There has 

been—so thanks, Senator, for that question, because earlier this 

came up about the Saturday article. We do not collect in bulk all 

those things that were said. Those were focused on foreign, but 

they did not have foreign vote or foreign X in front of it. 

From my perspective, I cannot think of other bulk records that 

we would need, like phone. I do think as we look at the phone data, 

we are going to have to look at how that changes as we bring mobility, and that has been the question of it, and so we released to 

the Intelligence Committees today clarification so they understood 

the difference on locational data and those requirements. 

I do think that right now we are going to have to evolve as the 

threat evolves, but I cannot think of any, and that was a longwinded—I cannot think of any. I apologize. 

Senator CRUZ. Also before the Intelligence Committee, General 

Alexander, you declined to answer whether the NSA had ever tried 

to gather data about the location of phone calls, and there was 

some suggestion from Senator Wyden that this was a classified 

matter. 

My question to you is: In your personal opinion, do you believe 

the NSA needs to collect GPS location information on American 

citizens to prevent terrorism? 

General ALEXANDER. So we did send a statement to the Intelligence Committees, and if I could just read it real quick, because 

it addresses what your question is: 
39 

‘‘As NSA has previously reported to the Senate and House Intelligence Oversight Committees, NSA does not collect locational information under Section 215 of the PATRIOT Act. In 2010 and 

2011, NSA received samples in order to test the ability of its systems to handle the data format, but that data was not used for any 

other purposes and was never available for intelligence analysis 

purposes. In a 25 June 2013 closed hearing with the Senate Select 

Committee on Intelligence, NSA promised to notify the Congress 

before any locational data was collected. Moreover, as noted in the 

Foreign Intelligence Surveillance Court’s most recent opinion’’—I 

think it is called Footnote 5—‘‘on the program, the Government 

would also be required to seek the Court’s approval of the production of locational data before acquiring it under this program.’’ 

I would just say that this may be something that is a future requirement for the country, but it is not right now, because when 

we identify a number, we can give that to the FBI. When they get 

their probable cause, then they can get the locational data that 

they need. And that is the reason we stopped in 2011. 

Senator CRUZ. Thank you, General Alexander. 

If I may ask one brief follow-up question? 

Senator BLUMENTHAL. Sure. 

Senator CRUZ. Thank you, Mr. Chairman. 

Absent a search warrant particularized to an individual suspected terrorist, does the NSA currently have the ability and access 

to voicemail content, to text messages, or to financial records that 

are now being collected by the CFPB on millions of American citizens? 

General ALEXANDER. I apologize. I am not familiar, Senator, with 

CFPB. 

Senator CRUZ. The Consumer Financial Protection Bureau. 

General ALEXANDER. Not that I know of, Senator, no. In fact, to 

be clear, if we have to go after any U.S. person—and it would almost always be an FBI not an NSA lead—it has to have a probable 

cause warrant, and you would have to go through the probable 

cause, whether it is under a regular court or the FISA Court, depending on the type of action. 

Senator CRUZ. And is that answer the same for voicemail content 

and text messages? 

General ALEXANDER. Voicemail—all content, any targeting of a 

U.S. person would have to be done that way. For metadata, it is 

always started with a nexus with al Qaeda or related—the queries 

and reasonable, articulable suspicion. 

Senator CRUZ. Thank you, General Alexander. Thank you, Director Clapper. 

Senator BLUMENTHAL. Thank you, Senator Cruz. 

Before I ask my questions, I am going to recognize Senator 

Hirono. 

Senator HIRONO. Thank you very much, Mr. Chairman. 

I understand the serious concerns and consequences to our intelligence program with 70 percent plus of your people furloughed as 

a result of the shutdown. I would say that every day of the shutdown creates dire consequences for our families and our economy. 

So, of course, the answer to that is not to have had a shutdown in 
40 

the first place, and we need to open Government, all of Government. 

We talked a bit in today’s hearing about some individuals who 

had asked inappropriate or illegal queries, and, General Alexander, 

you mentioned what happened to these people. My question is: 

How did these inappropriate queries come to light in the first 

place? Do you have something in place that detects when these 

kinds of illegal actions are taken by your employees? 

General ALEXANDER. Two ways, Senator, for us to detect those. 

If it is on a U.S. person phone number or email, a flag automatically goes up and says somebody is querying that. In the audit 

process, that makes it very quick to see. 

Under the foreign side, if you have somebody working overseas 

on a foreign number, it is much more difficult. Oftentimes that is 

found when we have a security update, when we go through the 

person’s security update, because detecting a foreign number—so 

most of these were on a foreign friend, girl or boy friend, in a foreign place. And the number may be construed to a valid intelligence target or identified as such, and it is difficult for an auditor 

to see that. So that is the issue. So what we have done is, I think, 

highlighting the punishments that go along with this really will 

help cut that down. 

Now, to be really candid, if you think about the number of people 

that we have—and you are familiar with this, I know, from NSA 

Hawaii and others—when you look at the numbers of people doing 

queries and the few mistakes that we have had over a decade, that 

is 12. That is too many. We agree. But I think actually we do a 

good job of holding these—of detecting and holding people accountable. 

Senator HIRONO. So you feel that we have the processes, the 

technology in place that will identify these kinds of inappropriate 

queries? I mean, nothing is foolproof. 

General ALEXANDER. That is right. Nothing is foolproof. I think 

on the U.S. persons, we have a great track record there. And in 

some of these, that is how it was detected, in the minority of the 

cases where it involved that. The more difficult one I explained. 

Senator HIRONO. I want to turn to The New York Times recent 

article where you have many systems in place that collect 

metadata. There is reference to MAINWAY. In the article it says 

that, in 2011, MAINWAY was taking in 700 million phone records 

per day, and it also began to receive, in 2011, 1.1 billion cell phone 

records daily, and then it goes on to say that the agency is pouring 

money and manpower into creating a metadata repository capable 

of taking in 20 billion record events daily and making them available to NSA analysts within 60 minutes. So, clearly, the surveillance technology is evolving. 

My question is: Do we also have a developing—are we also developing the technology to protect privacy? 

General ALEXANDER. Senator, I think we are, and I would note 

that what was missing in The New York Times article is almost 

all of those should have said ‘‘foreign’’ in front of it. So here is the 

issue that we face, and it goes right to metadata, and it is for our 

allies as well as for us. 
41 

A terrorist threat that spans from the Middle East to Europe to 

the United States, how do you track that and identify the key people. You could try to do this on content, but that would be too 

labor-intensive. So metadata tracking the connections is the first 

and the best way to start. And so the collection of metadata to 

track some of these individuals is the most important and the least 

intrusive way of doing it. 

In the United States, what was conflated was a couple of different programs. So the fact that Facebook and social networks and 

all those things, they jumped to the conclusion that that is done 

on Americans, that is factually incorrect. Only when the Americans 

are a subject of an investigation, like a terrorist investigation—so 

in this case it is called ‘‘a U.S. person’’—a terrorist in the United 

States is treated as a U.S. person. In that case, we would have the 

FBI have a court order—the FBI would have done that. Then we 

could go do the check on that. 

So I would just be clear that I think our rules for ensuring the 

privacy both of Americans and our allies is actually better than any 

country in the world. 

Senator HIRONO. I have one more question, Mr. Chairman. General Alexander, is PRISM the only intelligence program NSA runs 

under FISA Section 702? 

General ALEXANDER. Well, PRISM was a—yes, essentially the 

only program was that that you know as PRISM under 702, which 

operates under that authority from the Court. But we also have 

programs under 703, 704, and 705. 

Senator HIRONO. So what are all of the programs run by NSA or 

other Federal agencies under FISA 702 or of the PATRIOT Act Section 215? 

General ALEXANDER. So, generally speaking—and I am going to 

give you the general statements on this. So you have two sets: the 

Business Records FISA program, 215, authorizes the use of 

metadata; Section 702 allows us with one and foreign to go after 

content, so 702 is content data, which means the communications 

of a foreign person, reasonably believed to be foreign, outside the 

United States to get their communications. So it is a different set 

of things, but we may use U.S. infrastructure to help us gather 

that information. 703, –4, and –5 deal specifically with U.S. persons and are a much smaller subset. 

Did I get those right? I have got to ask the lawyer. 

So that is, generally speaking—and then there is upstream collection that allows us to collect the same information. We go 

through the Court; we do the same thing on that. That was one of 

the violations that we had in 2011. We worked that through with 

the Court. But it is essentially the same process, going after a foreign piece of information. 

So how do you track a terrorist? And these are the tools that you 

have. One is to identify in metadata who it is. And the second, if 

we identify it is a foreign target, a foreign terrorist piece of information, gathering more information on that becomes increasingly 

more important. All of those are available to this Committee, all of 

the information on those, and our Executive Order 12333, and none 

of that is hit. 

Senator HIRONO. Thank you. 
42 

Mr. Chairman, I think my time is up. I may be submitting further questions to our witnesses. Thank you. 

Senator BLUMENTHAL. Thank you, Senator Hirono. 

Thank you both for being here, and thank you for your service 

to our Nation and to the men and women who work under your 

command. I think all of us share the view that the work that these 

dedicated patriots do for our Nation is absolutely vital. I think also 

I at least share the sense of alarm and astonishment not only 

about the percentage that you have given, 70-plus percent of our 

intelligence community being furloughed, but also the very dire 

and dangerous impact on the capability of the Nation to protect 

itself during this time of shutdown. And you were asked, I believe, 

Director Clapper, whether you recommended to the President a 

change in that percentage or in the policy and practice. Have you 

made a recommendation? 

Director CLAPPER. I have not made directly a recommendation to 

the President, no. 

Senator BLUMENTHAL. I understand your view that that policy 

should be changed and that more of our intelligence community 

should be at work during this shutdown. But would it not be advisable to make that recommendation? 

Director CLAPPER. It would. Also—— 

Senator BLUMENTHAL. I hope you will do it. 

Director CLAPPER. In fairness, though, I need to—I am here, we 

are here representing, perhaps parochially, intelligence. But the 

shutdown has a very negative impact on lots of other segments of 

the national security apparatus, to include the Department of Defense. I am worried, most concerned about the intelligence components of the Department of Defense, for example, but there are 

many other parts of the Department which also have an impact on 

national security who are also civilians who work in those—— 

Senator BLUMENTHAL. I understand that point, but in your parochial task—and I would respectfully disagree with the use of the 

word ‘‘parochial.’’ I think it is a very profoundly significant task. I 

would respectfully suggest that you make that recommendation. 

Let me move on to say to you both, we know and you know that 

we need to both protect national security and preserve our civil liberties, and that is the balance that a democracy requires to be 

made. And protecting our security enables us to have the freedoms 

and liberties that we also want to protect in the course of collecting 

that data. 

One of the suggestions that I have made, in order to protect the 

trust and confidence of our Nation in our national security system, 

is that there be an adversarial process. As you know, we have 

talked about it before, and you have responded to Senator 

Klobuchar’s question about what she referred to as an ‘‘advocate’’ 

or an ‘‘amicus.’’ 

My proposal very simply would provide for a constitutional advocate that would enable the Court to hear both sides, and the principle behind it is really one of common sense. Before you authorize 

a mission or assignment, you do not have a formal trial, but you 

hear both the upsides and the downsides, the negatives and the 

positives, and my feeling is that the Nation would be better protected by a constitutional advocate with security clearance that 
43 

would potentially raise questions and challenge a security practice 

or procedure after it is ongoing, so there would be no delay. 

Let me pose to both of you, do you see a disadvantage, assuming 

that there would be no delay and no threat to security during that 

challenge, from that kind of adversarial procedure? 

Director CLAPPER. Let me start, sir. First, I have read your Harvard Law School treatise, which, speaking personally, I thought 

was excellent. I thought it was very well written, very temperate, 

and very balanced. 

Senator BLUMENTHAL. Thank you. 

Director CLAPPER. And it does recognize the two poles. 

I think our general view on an advocate or your other set of recommendations pertaining to the composition of the Court and how 

it is appointed, the diversity, our—again, I hate to use the word 

‘‘parochial,’’ but from our standpoint, as long as the Court can function operationally for us, that is the main concern we have, that 

it can move with agility, protect those aspects that require classification, as the Court has. I think our view is the Court has been 

a rigorous overseer, a very robust overseer of all these processes. 

But for the sake of enhanced transparency and trust and confidence of the American people, some arrangement like this I think 

from our standpoint is more than acceptable. 

Having said that, I think the official spokesperson for this would 

be the Department of Justice. 

Senator BLUMENTHAL. General Alexander. 

General ALEXANDER. I agree with everything Director Clapper 

said, and I would just add that there are certain cases, I think, 

that you have also noted that would not require an amicus or 

somebody to stand up and say in these—just like you would have 

in a subpoena, there are times that you go to a judge and do things 

that you do not have an adversary in the criminal side. I think you 

would model it perhaps after that, and your discussions with the 

Justice Department I think have already walked down that lane. 

So given all that, yes. 

Senator BLUMENTHAL. And the model would be indeed the criminal process modified so as not to impede in any way the legitimate 

and pressing security concerns that might arise. 

I want to say for myself as to the potential legal action against 

contractors who failed in their duties to prevent the leaks that occurred or to do more adequately the screening and security clearance that was required that my hope is that legal redress will be 

pursued. My colleague Senator Whitehouse said he wanted to make 

sure that they were not too big to sue. I want to make sure that 

they are too big not to sue, too big in their responsibilities and the 

very profound harm to the Nation that has been caused by their 

failure to fulfill those responsibilities. They are very big in terms 

of the role and responsibility that they were legally required to fulfill and apparently failed to fulfill. And so I hope there is serious 

consideration underway and that you will recommend as appropriate that legal action is taken. 

Let me just finally ask you a couple of questions to clarify, General Alexander, what you said about The New York Times report, 

specifically the social network graphing that The Times reported. 
44 

Is it your testimony here that there has been no social network 

mapping or graphing that involves American residents or citizens? 

General ALEXANDER. I gave the cases in which that would not be 

true. For example, there are cases that you would graph an American number if that is the subject of a terrorist investigation, is a 

great example, if they are the target or if they are a hostage someplace, when you would expect us to look into those communications 

for those types of things. So there are cases where you would do 

that. But it does not—— 

Senator BLUMENTHAL. You would—I apologize for interrupting. 

You would map the phone numbers. 

General ALEXANDER. The phone numbers, correct. 

Senator BLUMENTHAL. I am talking about the social network 

emails and Facebook and other connections or information that—— 

General ALEXANDER. So our information is foreign, and all the 

information that we bring in, foreign, that even has U.S. data in 

it, we do the maximum that we can to filter out any U.S. data. So 

we would not have that in our repository. 

So the belief—what they jump to is a conclusion because we did 

not articulate perhaps in a classified slide that what we are talking 

about here is all foreign stuff. Everybody knows that who works 

there. But what they jump is, well, then, that must be on U.S. persons. That part is wrong. We do not do that. And the fact that people assume that we are out there mapping the social networks of 

U.S. persons is absolutely wrong. 

What we do go after is those that are the subject of a terrorist 

investigation or something like that. And even then we do not have 

all that data in there. We do not have the Facebook and other stuff 

on those people here in the U.S. It would have to come from the 

foreign side or from an FAA 702 collection. 

Senator BLUMENTHAL. If they became a target and only if they 

became a target would you do any of the social network—— 

General ALEXANDER. Then it would be the FBI. Then it would go 

over to the FBI. You know, so we are looking for the foreign nexus 

here, not the U.S. part. 

Senator BLUMENTHAL. Well, let me ask you, The Times reports 

that in November 2010, SIGINT Management Directive 424 authorized the adoption of a practice that had been tried on a pilot 

basis for about a year and a half before. Is that inaccurate? 

General ALEXANDER. I am not sure, Senator, what that refers to 

on 424, to be honest. Is this the Supplemental Procedures Governing Communications Metadata Analysis? I am not sure what 

that means. But I will take that for the record. 

Senator BLUMENTHAL. If you could take it for the record, I would 

appreciate your response. 

[The information referred to appears as a submission for the 

record.] 

General ALEXANDER. And just to be clear, you know, I am answering questions on Business Records FISA 215 from NSA’s perspective because that is what I am familiar with. You know, that 

is, of course, a global thing that others use as well. But for ours, 

it is just that way. 

Senator BLUMENTHAL. And you would agree with me, would you 

not, that this practice, to the extent it requires authorization from 
45 

FISA—and apparently this program did—would and should be reviewed by the FISA Court? 

General ALEXANDER. I think all things that are authorized by the 

FISA Court should be—is reviewed by them. You mean the actual 

queries themselves? 

Senator BLUMENTHAL. Well, the claim of social network mapping 

that went beyond perhaps the targeting of foreigners. 

General ALEXANDER. It did not happen. So that is the part that 

I take exception to. If there is anything that goes on there, it is 

done under the 702, and that would be targeting a foreign into the 

U.S. 

So I do think—you know, this might be, Senator, a great opportunity for you to come out and actually see some of this. I think 

it would be very helpful in helping to shape the laws that are so 

important to the future of this country, because I think when you 

see it and you can sit down with the people and they go through 

what we do and how this was conflated on one slide, that all these 

documents that are foreign, like voter registration, well, we all vote 

here, but it is not U.S., it was foreign, to understand who the number that goes to this person and what they are all about to help 

us understand is this a threat or not. 

Senator BLUMENTHAL. And the only point I would make—and I 

would be happy to accept your invitation and your recommendation—is that a constitutional advocate could bring this claim to the 

attention of the Court. It could be reviewed factually and legally so 

that the American people would not have to rely on a Senator, 

whether it is Richard Blumenthal or any other Senator, or an official in charge, as you are, but could be assured that there was 

some independent objective review after an adversarial process 

that tested it. And just as one last point, when I say ‘‘tested it,’’ 

we are dealing here with a construct, a constitutional construct, 

that relies on a 1979 case, Smith v. Maryland, involving a pen register system, which I think you would agree is the Stone Age of 

surveillance, and technology has moved so rapidly and so profoundly, there may be some need for the Supreme Court to interpret and advise as to how these constitutional principles apply to 

modern technology. 

General ALEXANDER. Senator, if I could also add, you know, the 

Supplemental Procedures Governing Communications Metadata 

Analysis, what I would like to do is—because that article is so long 

and there are so many things interwoven, I would like to take that 

for the record and give you back a detailed set of responses so 

every point—because, you know, what I do not want you to believe 

is I made this assertion here on what we do with respect to FAA 

702, and that gets conflated to Business Records or something else. 

So, for clarity, we will take that for the record, if that is okay, and 

give you both an unclassified version so you can share that more 

widely with whomever you would like, and then a classified version 

that shows you why some of those technical details are absolutely 

incorrect. 

Senator BLUMENTHAL. Not only is it okay and acceptable, but actually you read my mind because I was going to suggest that an 

analysis of the article, because it raises very important and impressive questions as to what the practices were and what the constitu-
46 

tional implications are, really would be very useful for this Committee, and I will ask that the Chairman make it part of the 

record, if you would submit it. Thank you. 

[The information referred to appears as a submission for the 

record.] 

Senator BLUMENTHAL. Thank you to both of you for being here 

today. Thank you again for your service and for your very helpful 

testimony. With that, we will go to the next panel. 

[Pause.] 

Senator BLUMENTHAL. As is the practice of this Committee, first 

of all, I welcome you here and, second, I have the duty to administer the oath so that you can be sworn. If you would please stand 

and raise your right hand? Do you affirm that the testimony that 

you are about to give before the Committee will be the truth, the 

whole truth, and nothing but the truth, so help you God? 

Professor DONOHUE. Yes. 

Professor FELTEN. Yes. 

Professor CORDERO. Yes. 

Senator BLUMENTHAL. Thank you. I am going to give very abbreviated introductions in the interest of time because we are running 

a bit late, but I will ask that the full summary of your re ́sume ́ be 

submitted for the record. 

Senator BLUMENTHAL. First of all, Laura Donohue is a professor 

of law at Georgetown Law School and the director of Georgetown’s 

Center on National Security and the Law. She writes on national 

security and counterterrorist law in the United States and the 

United Kingdom, and I understand that your most recent book is 

entitled ‘‘The Cost of Counterterrorism: Power, Politics, and Liberty,’’ and that you are currently at work also on an article or a 

book on the NSA’s metadata collection program as well as drones 

and the War Powers Resolution. 

Professor Felten is a professor of computer science and public affairs at Princeton University and the founding director of Princeton 

Center for Information Technology Policy. I understand that you 

were the first chief technologist at the United States Federal Trade 

Commission and that you are a member of various scientific bodies 

and that your research includes interest in computer security and 

privacy, especially relating to consumer products and media technology law and policy. 

And, finally, Carrie Cordero, who is the director of national security studies and an adjunct professor of law at Georgetown University Law Center. I understand that you also have written and studied in the areas of national security and counterterrorism as well 

as counterintelligence investigations. You have had a number of 

very significant positions in the Department of Justice and helped 

to formulate American policy in these areas before your service 

now in the private sector. I will not go into all of the positions, but 

they are extremely impressive. 

So maybe we can begin with you Professor Donohue. You will 

have to turn your microphone on. 
47 

STATEMENT OF LAURA K. DONOHUE, PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY LAW CENTER, AND DIRECTOR, 

GEORGETOWN’S CENTER ON NATIONAL SECURITY AND THE 

LAW, WASHINGTON, DC 

Professor DONOHUE. Thank you. Thank you for inviting me here 

today to discuss really much needed reforms to FISA, with particular reference to Sections 215 and 702. 

I have submitted detailed written remarks for the record, so for 

now what I would like to do is just highlight what I see as the most 

pressing concerns. 

Specifically, it is my view that the bulk collection of U.S. citizens’ 

metadata is both illegal and unconstitutional. The Government argues that the metadata program complies with the Constitution. In 

so doing, it relies in part on the case that you mentioned that held 

that individuals lack a reasonable expectation of privacy in the 

numbers that they dial. 

The Government also suggests that the national security interests at stake override whatever privacy intrusions might result. 

For two reasons these arguments are problematic. 

First, the metadata program amounts to a general warrant, the 

use of which by the English played a key role in the American Revolution and led directly to the Fourth Amendment. A general warrant was a writ. It was issued by a court. It did not expire. And 

it allowed officials to collect information to search anywhere without any particularized suspicion. 

In 1760, the British Prime Minister, William Pitt, directed colonial Governors to use these writs of assistance to crack down on 

illegal behavior. James Otis famously challenged them as the worst 

instrument of arbitrary power. And John Adams later wrote that 

this oration breathed life into this Nation. ‘‘Then and there,’’ John 

Adams reported, ‘‘was the first scene of the first act of opposition 

to the arbitrary claims of Great Britain. Then and there the child 

Independence was born.’’ 

The Virginia Declaration of Rights subsequently included a 

clause outlawing general warrants. Similar language was adopted 

by Massachusetts and New Hampshire in their State constitutions 

and later the ratifying conventions, the most important ones—New 

York, Virginia, and North Carolina—they required that a prohibition on general warrants be incorporated into the Bill of Rights. 

James Madison wrote the Fourth Amendment to prevent the use 

of general warrants. They were the definition of ‘‘unreasonable 

search and seizure.’’ 

The FISC order, authorizing the telephony metadata program, is 

a general warrant. It authorizes the Government to collect and 

then to rummage through our papers and effects in the hope of 

finding wrongdoing. There is no prior suspicion of criminal activity, 

and almost none of the information obtained actually relates to illegal behavior. 

Second point: In defending the program, the Government relies 

on the 1979 case called Smith v. Maryland. In that case, Patricia 

McDonough was robbed in Baltimore. After giving the police a description of the man who robbed her and the 1975 Monte Carlo car 

that he drove, she started receiving threatening and obscene phone 

calls in her own home from a man who said he had robbed her. 
48 

Then he phoned her and had her come out on her front porch while 

he drove slowly by the house in the Monte Carlo. The police saw 

the car in the neighborhood, got the license plate number, and 

identified that the car was registered to Michael Lee Smith. The 

police asked the telephone company if it would put a pen register 

on Smith. That day he called Patricia McDonough’s home. On the 

basis of this and other information, the police obtained a search 

warrant. They went into the house and they found a phone book 

turned down to Patricia McDonough’s name. 

Michael Lee Smith had robbed, threatened, intimidated, and harassed Patricia McDonough. The police placed the pen register consistent with reasonable suspicion of criminal wrongdoing. The NSA 

would treat every American as though they were Michael Lee 

Smith, and it would collect not just the numbers dialed from the 

home of the suspected criminal, but all law-abiding citizens’ 

metadata—whom we call, who calls us, how long we talk. Calls to 

a rape crisis line, a suicide hot line, or political party headquarters 

reveal much more than what was sought in Smith. The Government’s argument could be extended to any sort of 

metadata: email, banking records, financial transactions, and Internet use. The extent to which we rely on electronic communications 

to conduct our lives is fundamentally different in scale and scope 

than what happened in 1979, and the NSA would do this indefinitely. 

Americans reasonably expect that their movements, communications, and decisions will not be recorded and analyzed by the Government. A majority of the Supreme Court seems to agree. 

In 2012 the Court considered a case involving 28-day surveillance using GPS chips. This case recognized that Katz’s reasonable 

expectation of privacy test does not supplant the rights that existed 

when the Fourth Amendment was written. At a minimum, Justice 

Scalia wrote, the ‘‘18th century guarantee against unreasonable 

searches . . . must provide . . . the degree of protection it afforded 

when it was adopted.’’ The protection against the general use of 

warrants thus stands. 

In addition, at least five of the Justices indicated unease with the 

intrusiveness of modern technology. Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, suggested that in most criminal 

investigations, long-term monitoring ‘‘impinges on expectations of 

privacy.’’ 

Justice Sotomayor went one step further. She suggested that disclosing information to a member of the public for a limited purpose 

does not divest that data of Fourth Amendment protections. 

The telephony metadata program also violates the express statutory language of the Foreign Intelligence Surveillance Act in at 

least three ways: 

First, the Government argues that the NSA’s telephony metadata 

program is consistent with the statute in that all telephone calls 

in the United States, including those of a wholly local nature, are 

relevant to foreign intelligence investigations. The use of the word 

‘‘relevant’’ here is so absurd as to render the term and the qualifying statutory language meaningless. 

Second, tangible goods subject to the order must be obtainable by 

subpoena duces tecum, but no grand jury or court would allow the 
49 

bulk collection of all Americans’ metadata. It is illegal to use subpoenas for fishing expeditions. Subpoenas, moreover, are specific. 

They relate to a particular individual or crime, and they deal with 

current or past bad behavior. The metadata program in contrast is 

broad, non-specific, forward-looking, not tied to a crime, and looks 

to anticipate future acts. 

FISC itself has recognized the illegality of the program. In March 

2009 Judge Reggie Walton acknowledged that metadata could not 

otherwise be captured in bulk. 

Third, and finally, as a statutory matter, all of the information 

at issue in the bulk collection program is already provided for in 

FISA Subchapter 3 dealing with pen registers and trap and trace. 

Using Subchapter 4, the Government appears to be doing an end 

run around the restrictions that Congress placed on the NSA. 

The system, in my view, is badly broken. The NSA is engaging 

in activities that are illegal and unconstitutional. Congress has an 

opportunity to fix the problem and to do so in a way that recognizes the benefits of new technologies, the real threats the Nation 

faces, and the demands of the U.S. Constitution. 

Thank you. 

[The prepared statement of Professor Donohue appears as a submission for the record.] 

Senator BLUMENTHAL. Thank you, Professor Donohue. 

And I might just say that all of your full statements will be made 

a part of the record, without objection. 

Professor Felten. 

STATEMENT OF EDWARD W. FELTEN, PROFESSOR OF COMPUTER SCIENCE AND PUBLIC AFFAIRS, PRINCETON UNIVERSITY, AND DIRECTOR, CENTER FOR INFORMATION TECHNOLOGY POLICY, PRINCETON, NEW JERSEY 

Professor FELTEN. Mr. Chairman, Ranking Member Grassley, 

and Members of the Committee, I thank you for the opportunity to 

testify about technical issues related to surveillance. 

I am not an expert on the law, and I offer no opinion on the legal 

status of any program. Nor do I presume to say how best to balance the legitimate goals of conducting foreign intelligence surveillance against the legitimate goals of protecting privacy and promoting civil liberties. I hope that my testimony will help you appreciate the power of metadata and control its use appropriately, consistent with the need for effective foreign intelligence. 

The NSA has acknowledged that it is collecting metadata—who 

called whom, when, and for how long—about nearly all phone calls 

in the U.S. Earlier, General Alexander said that the NSA is not 

currently collecting location data, but if it were to begin collecting 

location data, this would raise additional serious issues. 

With today’s analytic tools, metadata often amounts to much 

more than just a list of numbers dialed. Often it reveals information that could traditionally be obtained only by examining the contents of communications. 

Metadata can now yield startling insights about individuals and 

groups, particularly when collected in large quantities across the 

population. It is no longer safe to assume that metadata is less revealing or less sensitive than the content it relates to. Just by 
50 

using new technologies such as smartphones and social media, we 

leave rich and revealing trails of metadata as we move through 

daily life. Many of the details of our lives can be gleaned by examining those trails. And the only reliable way to avoid creating those 

trails would be to avoid using these technologies altogether. 

Metadata can be highly personal. A series of calls to an 

oncologist or an obstetrician or to a suicide hotline or to an alcoholism counselor or to a competitor’s personnel office or to an Inspector General, the pattern of calls reveals content. 

Metadata also reveals relationships. Frequent late-night calls can 

reveal an intimate relationship. Calls to a counselor or divorce lawyer can reveal the state of a marriage. Calls to parents or siblings, 

or a lack of calls, can reveal the status of family relationships. 

Metadata is naturally organized in a way that lends itself to 

analysis. By contrast, content is unstructured and can be difficult 

to analyze and understand. Today a growing set of computing tools 

can turn metadata trails into penetrating insights, and given limited resources, analyzing metadata is often a far more powerful analytical strategy than investigating content, yielding more insight 

with the same amount of effort. 

When focused on intelligence targets, metadata collection can be 

a valuable tool. At the same time, unfocused collection of metadata 

across the whole American population gives Government access to 

many of the same sensitive facts about the lives of ordinary Americans that have traditionally been protected by limits on content collection. Metadata might once have seemed much less informative 

than content, but this gap has narrowed dramatically and will continue to close. 

Today’s hearing is a vital step in a process that should continue. 

Technical expertise is essential for effective oversight of these technologically complex programs, and I would respectfully urge you to 

consider how best to integrate technical expertise into the oversight 

process. 

As an example, the Foreign Intelligence Surveillance Court in its 

declassified opinions expressed frustration that the NSA had not 

disclosed significant technical information. The NSA’s good faith effort to summarize the technology for the Court’s benefit could have 

led to the omission of information that the Court later found highly 

relevant. 

Technologists within the NSA surely knew how their program 

operated, but this information had to pass through other people, 

some of them less attuned to the significance of certain technical 

details before it could reach the Court. And the Court, without access to technical advice, was not able to ask the sort of probing 

technical question that might have elicited the missing information. 

The United States has the world’s strongest pool of technology 

experts, many of whom are available to assist in the oversight process. I look forward to your questions today and, more broadly, to 

continued constructive engagement between oversight officials and 

technical experts. 

Thank you. 

[The prepared statement of Professor Felten appears as a submission for the record.] 
51 

Senator BLUMENTHAL. Thank you, Professor Felten. 

Professor Cordero, I want to apologize. I have to step out for a 

very quick visit with a group that has been waiting to meet with 

me. I have read your testimony. It is excellent. If I am not back 

in time, Senator Grassley can proceed to questions, and I should 

be out for just a few minutes. So please proceed. 

STATEMENT OF CARRIE F. CORDERO, ADJUNCT PROFESSOR 

OF LAW AND DIRECTOR OF NATIONAL SECURITY STUDIES, 

GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC 

Professor CORDERO. Thank you, Mr. Chairman, Ranking Member 

Grassley, Members of the Committee. Thank you so much for the 

opportunity to be here today. 

In my written statement, I have provided the Committee with information about my previous experience as a national security law 

practitioner, and that statement also recounts my experience working at the Department of Justice on September 11, 2001, and includes examples of how pre-9/11 law and interpretations of the law 

led to significant bureaucratic processes inconsistent with the 

speed and agility needed in national security activities. 

Indeed, in the years leading up to and then after 9/11, the FISA 

process was subject to the exact opposite criticism that it seems to 

be today: The Department of Justice was accused of being too reticent, too cautious, too unwilling to be aggressive under the law in 

order to protect national security. Subsequently, I had an up-front 

view regarding how the intelligence reform laws passed by Congress over the next several years vastly improved the intelligence 

community’s ability to protect the Nation from another attack on 

the scale of September 11th. 

So I am here today to urge caution in implementing quick fixes 

that may sound appealing but that could have lasting consequences 

at a practical level that could negatively impact intelligence community operations and the Nation’s security for years to come. I do 

not want to see us go backward. 

Since the unauthorized leaks of this summer and subsequent reactions, I have observed three main critiques of the current FISA 

activities. Let me take each one along with some of the proposed 

reforms. 

First, with respect to the proposals to restrict collection under 

FISA, my perspective these arguments—that these programs—and 

I am referring to both the 702 and the 215 program—are illegal are 

mostly arguments about what the law should be, not what the law 

is. That said, the Government’s interpretation of 215 is a more forward-leaning interpretation of the law than is its implementation 

of 702. 

The 702 collection is targeted against non-U.S. persons reasonably believed to be outside the United States. These are not individuals with constitutional protections, and the collection against 

them is conducted in accordance with the statutory framework debated extensively and passed by Congress in the FISA Amendments Act of 2008. 

The metadata collection under 215 is obviously large in scale, but 

I would submit that the Government’s arguments in this are con-
52 

sistent with existing precedent, no matter what direction the courts 

may go in the future. 

I would comment to the Committee the recently declassified opinion and order by FISC Judge Claire Eagan dated August 29, which 

offers a straightforward analysis of the law that explains why the 

Court continues to approve this collection. 

In addition, senior leaders of the intelligence community continue to advise that the 215 program remains a valuable part of 

the protective infrastructure that was implemented after September 11th. Therefore, in my view, it would be premature for Congress to abruptly end the 215 program through legislation. 

Second, with respect to the proposals to enhance public confidence, two themes emerge in proposals to add a special advocate 

or public interest advocate to the FISA process. One view is that 

the Court could benefit from an additional view, particularly in 

cases involving technical complexity or novel legal issues. A second 

view is that a special advocate would go a long way in restoring 

public confidence. I have concerns about both proposals. 

If what the Court seeks—and it would be helpful to hear from 

the current Court on this issue—is simply an additional view beyond that which is presented by the Justice Department on behalf 

of the intelligence community, then I would submit that empowering the existing Civil Liberties Protection Officer, a position created by Congress, to present his views directly to the FISC would 

serve that purpose. This proposal would address the substantive 

concern that the Court could benefit from an additional view, and 

it would do so without adding substantial layers of additional bureaucracy. 

On the public confidence point, I would suggest that an outside 

advocate would not carry the weight that is hoped it might provide 

with the public in the longer term. If done in a manner protective 

of classified information, the advocate would necessarily work in 

secret, alongside the executive branch. With the passage of time, 

outside observers will just see the advocate as another participant 

in a secret process. 

So what would enhance public confidence? Perhaps the most 

frustrating part of the reaction to the leaks from my perspective 

has been the nearly complete lack of confidence in or comfort by 

the existing oversight mechanisms, particularly with respect to 702 

collection. I can personally attest that the oversight is extensive 

and exhaustive. So I will offer a few suggestions of what might be 

some steps in the right direction to bolster both congressional and 

public confidence. 

One, Congress can ensure that the offices conducting oversight 

are staffed and funded appropriately to their responsibilities. The 

internal executive branch oversight process that has been built requires a lot of man-hours to do it right, and the quality of oversight 

will suffer if any of these offices are stretched beyond their capabilities. 

No doubt there is an irony here in making this point in the midst 

of the Government shutdown. 

Two, Congress could consider requiring an annual or semiannual 

public report that produces information currently contained in the 

classified joint compliance assessment. This report might help bet-
53 

ter inform Members of Congress beyond the Judiciary and Intelligence Committees regarding the oversight and compliance process. 

Three, Congress should focus its efforts in working with the 

NSA, the Justice Department, and other components in the intelligence community to reduce the complexity of internal procedures. 

I have explained the reasons for this recommendation in greater 

detail in my written statement, but to summarize, one aspect of reducing compliance incidents is reducing the complexity of internal 

operating procedures to ensure that operators at the working level 

understand the rules they are operating under. 

Third—and I will hit this point quickly—with respect to the proposals to enhance transparency, this seems to be an area where 

there is clearly room for Congress to act. My own view is that the 

seemingly ad hoc nature of the recent Government declassification 

releases is not actually helping as much as they might think. If declassification is the new norm, then there needs to be a more regularized and consistent method of releasing information. This might 

include amending the reporting provisions in FISA to provide additional public information, whether it is statistics, declassified legal 

opinions, summaries of implementation actions, or reports on compliance matters—semiannually, quarterly, or at some other appropriate regular interval. In my view, this might cut back on each release being an event unto itself. 

Thank you very much for inviting me here today to share my 

views, and I look forward to your questions. 

[The prepared statement of Professor Cordero appears as a submission for the record.] 

Senator GRASSLEY [presiding]. Senator Whitehouse, Senator 

Blumenthal said I could go ahead. 

Senator WHITEHOUSE. And I think you should. 

Senator GRASSLEY. Thank you. You are in the majority, do not 

forget. 

Professor Donohue, I understand that you concluded that the 

bulk collection of phone records under 215 is illegal. I call to your 

attention that President Obama is a former constitutional law professor, editor of the Harvard Law Review, and you probably know 

that he has concluded that the program is legal both under statute 

and as a matter of constitutional law. 

Is it your view then that President Obama is wrong? 

Professor DONOHUE. Yes. 

Senator GRASSLEY. Okay. A further question, this time of Professor Felten. You testified that telephone call metadata can reveal 

an incredible amount of information about a caller when aggregated with other data and analyzed. For example, you mentioned 

that metadata can reveal sensitive information about the caller’s 

relationship, lifestyle, and activities. But under the FISA Court 

order, bulk telephone metadata collected under Section 215 can 

only be assessed and searched by the Government when it has reasonable and articulable suspicion that the phone number is connected to terrorism. 

Question: Does your testimony underscore what a valuable—no, 

let me start over again. Doesn’t your testimony underscore what a 

valuable tool the collection of metadata under Section 215 is to 
54 

keep the country safe? Aren’t the relationships and the activities 

of suspected terrorists precisely the kind of information that the 

Government should be trying to learn about them as rapidly as 

possible? 

Professor FELTEN. I certainly agree, Senator, that it is important 

for the intelligence agencies to have the ability to get this information about terrorists and their associates, and this I think goes to 

the issue of focus that I discussed in my testimony where, when focused on terrorists and their associates, certainly I think few 

Americans, if any, would object to this sort of program. But when 

it is unfocused across the whole population, it does raise the same 

kinds of privacy and civil liberties issues that arise with content. 

And, therefore, I think it makes sense to think about how best to 

balance those issues in order to make sure that the collection and 

analysis of that data is limited—is available where necessary, but 

is also not without bound. 

Senator GRASSLEY. Thank you. And I will go to Professor 

Cordero. I would like to describe a few aspects of how Government 

attorneys practice before FISA. For example, do Justice Department lawyers who appear before FISA Courts have an obligation 

to present both sides of an argument, including law or facts that 

run counter to the Government’s position? And would you say that 

their presentation of opposing views is as vigorous as would be accomplished by an independent advocate? 

Professor CORDERO. Thank you for the question. With respect to 

the practice before the Court, the practice is ex parte, in camera, 

and what that means for the attorneys for the Justice Department 

who do that practice is that they have a heightened obligation in 

the FISA Court practice. In addition, with respect to their ethical 

obligations as members of the bar, whenever attorneys practice ex 

parte, in camera, they have a heightened obligation to bring both 

the facts that are supportive of their case but also derogatory information or contrary information that might be relevant to the 

Court’s judgment. And so certainly my experience at the Department of Justice was that that was how we conducted our business. 

In addition, the Court has legal advisers who conduct independent review, and then there are the members of the Court 

themselves who are independent district court judges. 

I would also commend to you Judge Walton’s letter to this Committee in July where he explained the process between which the 

Government works with the Court and when the Court asks questions and how the Government responds to those questions. And it 

is a very extensive and probing process. 

Professor DONOHUE. Excuse me, Senator. May I add something 

to that particular response, please? 

Senator GRASSLEY. Certainly. 

Professor DONOHUE. Thank you very much. I just want to mention in regard to the Foreign Intelligence Surveillance Court, they 

are not performing the function that they were originally envisioned to perform under FISA. They were supposed to narrowly 

grant orders. And what we are seeing are dozens of secret opinions 

which we have not seen. Some, as we found out in July, are hundreds of pages long and make rulings on very complex, difficult 

constitutional questions. There is, for instance, a special exception 
55 

that the Foreign Intelligence Surveillance Court has carved out for 

foreign intelligence out of the Fourth Amendment. The Supreme 

Court has never recognized in the Special Needs Doctrine a special 

exception for foreign intelligence. 

In order to adequately air these views, having opposing counsel 

or, what Senator Blumenthal has suggested, a constitutional advocate, would be of great assistance. 

The recently released opinion that Judge Eagan put out is only 

three double-spaced pages on the constitutional questions that are 

far more complex than are encapsulated in that opinion. So, to adequately air what the Court has become, it is important to have 

somebody there as a constitutional advocate. 

Thank you. 

Senator GRASSLEY. Could I ask one more question? This will be 

my last question for you, Professor Cordero. In your experience, 

how often does FISA Court challenge proposed Government applications by signaling that they may be insufficient? Describe the 

process by which Government lawyers attempt to resolve possible 

insufficiencies for the Court, including the role of legal staff. And 

does the high rate at which the Court ultimately approves Government applications reflect the process? 

Professor CORDERO. Thank you. So with respect—I do not have 

a numerical sort of number to give you with respect to how frequently the Court questions the Government presentations. In my 

experience, which ended in Government in 2009, however, it was 

a very frequent occurrence that there would be exchanges and 

question-and-answer periods between the Government lawyers and 

the Court on a very frequent basis, and it could happen at various 

levels. 

So, for example, if there was just a routine matter and there 

might need to be sort of small clarification questions, that might 

occur at the level between the Court’s legal advisers and staff attorneys. If there were more significant issues that might be at 

issue in a particular application or request, then that might involve 

sort of more senior levels of the Department of Justice engaging 

with either the legal advisers again or members of the Court. And 

this process can continue. If there were extraordinarily significant 

issues raised in a particular request, that might raise the attention 

and sort of the involvement in the discussions with the Court up 

to the level of the Assistant Attorney General for National Security 

or even the Attorney General. 

So it would be an exchange of questions and answers and an 

iterative process that, depending on the complexity of the matter 

or the judge’s concerns, could either be resolved quickly or go on 

for some length of time. 

That being said, the overall numbers, as Judge Walton’s letter 

had explained this summer in his letter to the Chairman, the overall numbers of approved applications does not reflect that process 

at all. And it also does not reflect the scenarios in which the Court 

might request changes be made to applications or proposed orders, 

whether the Court modifies the proposed orders, or requires that 

the Government proceed in a different way. And it also does not 

indicate in that statistic whether or not there was a circumstance 

that the Court indicated informally to the Government that I might 
56 

deny an application and the Government then would withdraw that 

application. 

Senator GRASSLEY. Thank you. 

Senator BLUMENTHAL [presiding]. Thank you, Senator Grassley. 

Let me begin by pursuing the line of questioning that Senator 

Grassley just introduced about the constitutional advocate, which, 

as you know, I have proposed. And I know, Professor Cordero, you 

have outlined your concerns in depth, and I do not know whether 

some of those concerns would be addressed by the fact that the 

challenge or the questions to be raised would be done after in time 

the authorization of whatever surveillance might be indicated. 

Would that address some of your concerns? Because I think in your 

testimony you indicated that it would be a sea change for this kind 

of advocacy to be done before the authorization of whatever the 

surveillance might be. 

Professor CORDERO. Thank you, yes, and in my written statement I did have in mind sort of at the FISC level prior to collection, the idea of adding an adversarial process at that level. 

With respect to adding an advocate at an appellate level, it raises 

some different issues. Certainly it would reduce the concerns about 

impeding operational speed and agility, so it certainly would, from 

my perspective, be better in that sense. But I guess the question 

I would ask is sort of which—what problem is it trying to solve and 

who the client would be of this constitutional advocate. Because I 

know from my experience, which, again, is a few years dated, but 

from my experience as the lawyers presenting these cases to the 

Court in the ex parte, in camera fashion, we operated in a culture 

that we were operating in the public interest and that our client 

was the American public and the American citizen. And that was 

sort of the culture that permeated that office at the time, and I do 

not have any reason to suggest that that has changed since. 

In addition—— 

Senator BLUMENTHAL. And I do not dispute that that culture existed then and existed now, and what we have seen, if you read 

Judge Walton’s opinion about what resulted from perhaps an inadvertent failure to communicate—and you were here when General 

Alexander described the lack of communication between two areas 

of the intelligence community—that could happen again. The problem to be addressed is potentially that kind of mishap which constituted a violation of law and was very significantly criticized by 

Judge Walton. In fact, he criticized the misrepresentation. And either the violation of law or misrepresentation certainly could have 

been addressed not only at the appellate level but at the FISA 

Court level as well. So that is the kind of problem that could be 

addressed. 

And I recognize—and I was a Government lawyer myself and 

represented the United States as well as the State of Connecticut— 

that Government lawyers generally try to do the right thing, represent the American public, but their view may be affected by what 

they see as the public interest, which may be skewed to one side 

of an argument for granting a warrant or another or approving 

metadata collection or not. And the adversarial process traditionally operates to bring out the truth. So that is my question to your 

question, what is the problem or what is the issue or need for some 
57 

constitutional advocate? And very simply, who is the client? The 

Constitution and the constitutional rights of the American public. 

Professor CORDERO. So I guess sort of two thoughts on that. One 

would be with respect—if part of the concern then is addressing the 

Court’s—what might be the Court’s desire, sort of as expressed by 

Judge Carr when he has testified before and in his op-ed, that the 

Court would benefit from an additional view on constitutional 

issues, then on that point that is why I have suggested that it 

might be appropriate to consider whether or not the existing Civil 

Liberties Protection Officer, who was a position created by Congress to consider matters of civil liberties and privacy, that that 

person might simply be more formally empowered to present an 

independent view to the Court, and that way that would be a person who is up to speed, knowledgeable, and aware of all the complexities of the issues, but might have a slightly different view that 

it could inform the court about versus that presented by the Justice 

Department on behalf of the intelligence community. 

Senator BLUMENTHAL. Thank you. 

My time has expired. I have additional questions. If there is no 

objection, I am going to turn to my colleague Senator Whitehouse 

rather than keep him here and then return to my questions. 

Senator WHITEHOUSE. I think it is within the Chairman’s right 

to have as many rounds as he pleases, so have at it. But thank you 

for recognizing me. 

Let me start by saying to Ms. Cordero that I think your practical 

experience in this area gives, at least to me, your testimony additional weight, and I appreciate it And I thought you made a very 

significant point when you talked about the need for ‘‘more regularized and consistent methods of releasing information.’’ I think that 

was the phrase that you used. 

We are still looking into it, but it appears to me that our intelligence community was caught flat-footed by the sudden, unexpected, unauthorized disclosure of classified information. And in 

the early days it had all of the outward appearance of a mad and 

unprepared-for scramble. 

An air crew prepares for the eventuality of a sudden, unexpected 

decompression of the aircraft, for instance, and I do think it is important that our intelligence community consider what we now 

know to be the virtual inevitability of these types of releases taking 

place, and have a more robust, immediate response to that eventuality, but also bet on it happening in the future and be more candid 

with the American people in the run-up, because I think a good 

deal of what has been disclosed could have been disclosed earlier, 

and I think the downside of classification in this area is very real. 

There is always an upside. It protects our sources, it protects our 

methods, it protects people who are helping us. It makes successful 

programs continue to be successful because people do not avoid 

them. If you disclosed who you were wiretapping, obviously your 

wiretap would fail, and we do not do it that way for very obvious 

reasons. 

So there is some real value to things being classified, but there 

are also all sorts of oversight and other issues that are raised, and 

I think you have a very balanced and sensible suggestion about try-
58 

ing to do that on a regular way, and I look forward to working with 

you to develop that further. 

Professor Felten, you said it was important that this information 

be available where necessary to our national security officials. 

Given the nature of the operation, that means it has to be somewhere. You have to be able to have the information. You do not get 

the luxury of being able to go back after the fact and figure out 

what you should have collected. So by your hypothesis that it needs 

to be available where necessary, I take the implication that collecting the whole haystack is necessary because otherwise it is not 

available where necessary. You cannot know that in advance. 

The second part of your point was that it must be available 

where necessary, but it has to be limited to help protect the privacy 

interests that are here at stake. 

Now, the way we have customarily done that over the years has 

been through mitigation techniques that go originally all the way 

back to wiretaps where the FBI agent listening in on the wiretap 

with the headphones would listen to the conversation, and if it 

looked like somebody was ordering pork chops from the butcher or 

talking to their Mom, you would flip off the conversation for a 

while, and then you would flip it back on to see if it was still unrelated to the criminal investigation, and then you flip it back off. 

And, obviously, it has gotten a lot more sophisticated since then in 

this new environment. 

But do you concede that the whole haystack method protected by 

adequate mitigation is actually necessary to accomplish the result 

that you have indicated is ideal, which is that the data to protect 

our country should be available where necessary? 

Professor FELTEN. I do not think it is necessary to collect all of 

the data immediately. My view is that the policy with respect to 

metadata, the policy tradeoffs with respect to metadata are becoming more similar to those with respect to content, and the example 

that you gave of minimization on a traditional wiretap even while 

the wiretap went on is a non-collection of data because there is not 

enough reason to believe that it is relevant to the purpose. And 

this is a balance that has been going on with content for a long 

time. 

Senator WHITEHOUSE. The difference, of course, is that that is 

one thread of information, and the necessary protection purpose is 

accomplished by staying in real time, by listening to that conversation as it develops. When you are trying to connect a network of 

contacts that a terrorist overseas might have, it is too late in the 

game to build that network if you do not have the information necessary to do that; otherwise, you are working—I mean, you may 

eventually be able to do it, but you risk a timing problem with by 

the time you have developed that network, you have missed important players in it, and the event that you are trying to prevent has 

taken place already. And it is the preparedness, I think, that is an 

important part of this. So I guess I would put myself on record as 

disputing that the haystack plus mitigation modality is not adequate. 

Let me ask all of you another question. We have talked a little 

bit about the—you know, it has been long established that the kind 

of metadata that is collected through these programs is not pro-
59 

tected by the warrant requirement. Everybody who has been in law 

enforcement here—Chairman Leahy, Chairman Blumenthal, myself, Senator Klobuchar, former U.S. Attorney Jeff Sessions—we 

have all gotten access to this data without a warrant, and it actually is achieved pretty readily. And, in fact, in the early days, it 

was done almost informally with the phone company, and now it 

has been regularized more. So there is an unquestionably vast 

amount of both legal and practical precedent for that proposition. 

At the same time mitigation has taken place for a very, very long 

time and is also equally well established, both as a legal protection 

and as a practical means of doing this. 

So there you have got long-established legal and practical precedent, and I think it is reasonable to draw conclusions from that 

looking forward. 

Now, to my question, there is another long-established precedent, 

which is that if you are the police chief and you want to put a tail 

on somebody you suspect, you do not need a warrant for that either. You can take a police officer, a plainclothes officer, and say, 

‘‘Look, we need to know where this guy is going. You tail him and 

let us find that out.’’ And that has been true for as long as there 

has been law enforcement. So, again, another long-established 

precedent. 

Then along comes United States v. Jones, and in United States 

v. Jones, the police decided that instead of just tailing Antoine 

Jones, they would put a beacon on his car, and they would track 

that beacon, which would obviously save law enforcement resources, take advantage of new technologies, be the smart thing to 

do, et cetera, et cetera, et cetera. 

The Supreme Court in that case said that that was a search and 

that that required a warrant, even though following him around 

would not have required a warrant. And while the constitutional 

basis for that decision I do not think is fully settled yet, there was 

a bare majority that said it is because of the physical trespass by 

putting the beacon on the car, but there was another majority that 

said, no, actually you have got to look at—they were unfortunately 

in the form of a concurring opinion and another concurring opinion, 

so they did not form five. But if you read Justice Sotomayor’s concurring opinion and the concurring opinion of four, they are all saying, look, just under the expectation of privacy test, this is a search 

also. 

So I deduce from that that there is a point, in fact, where new 

technology and scale change the underlying nature of what had forever been a non-warrant-requiring search. And so I think it is an 

actually very live constitutional question how United States v. 

Jones should apply to these programs. I have yet to see an opinion 

of the FISA Court that addresses that. 

The Eagan opinion came out very recently and did not address 

it—came out since the Jones decision and did not address it. So I 

am interested in each of your views as to how you would expect the 

FISA Court to rule when a case came up that obliged it to look at 

the application of United States v. Jones, the beacon decision. Let 

me start with Professor Cordero. 
60 

Professor CORDERO. Okay. Thank you, Senator. Certainly the 

Jones case is on the minds of everybody who considers these issues. 

With respect to—— 

Senator WHITEHOUSE. Except Judge Eagan, evidently. 

Professor CORDERO. Well, with respect, though, to Judge Eagan’s 

opinion, so what she said is—and I will quote. She said that the 

production order under the 215 is ‘‘squarely controlled by the Supreme Court decision in Smith v. Maryland and the Smith decision 

and its progeny have governed Fourth Amendment jurisprudence 

with regard to telephony communications metadata for more than 

30 years.’’ 

There have been 14 judges of the Court who have approved the 

215 program since 2006 34 times. The Jones case came after 2006, 

but there still have been at least some of those judges who have 

continued to approve the 215 case subsequent to the Jones case, 

and so that might be perhaps one suggestion that the Court is still 

satisfied. 

Judge Eagan also said that the fact that the data was not collected in bulk in the Smith case or, if you take the inverse of that, 

that it currently is conducted in bulk, she said that that would not 

change her analysis. 

So that being said, as I mentioned in my written statement, this 

is certainly an area where the law may change in the future. In 

the Jones case, as you mentioned, the majority that held that the 

GPS surveillance was a search, held it on the trespass grounds, not 

on the grounds that actually following the person around through 

the GPS surveillance was the search. It was the second sort of concurring majority part that said that had they decided the decision, 

they would have held on that grounds. But as you noted earlier in 

your remarks, that actually turns what are traditional investigative techniques of physical surveillance on its head from formerly 

being one of the most least-intrusive techniques to now all of a sudden flipping it up to a warrant requirement. 

Senator WHITEHOUSE. I think rather than ask the other two to 

respond, I have now gone so far over my time that it is really impolite to the Chairman, and I will—— 

Senator BLUMENTHAL. You can go further. 

Senator WHITEHOUSE. Then we will finish with their answers, 

and I will yield, but I appreciate very much the Chairman’s patience with this. 

Professor FELTEN. Well, I do not have the legal expertise to predict how a court would rule on—interpret Jones, but with respect 

to your discussion of law enforcement and police access to 

metadata, certainly this has been going on for a long time, and appropriately so. 

The modality there has not been one of transferring all data to 

law enforcement and then having them pull out the pieces they 

want later. Law enforcement and prosecutors have been able to go 

to the phone company and get the records they need when they 

need them. 

Certainly I would agree that technology provides new ways of 

managing this process, and one of those ways is to allow an intelligence agency to get the data that they need in a targeted and fo-
61 

cused way in real time, without needing to transfer all of it from 

the beginning. 

Senator WHITEHOUSE. Professor Donohue. 

Professor DONOHUE. Thank you for your question. I would like to 

address just briefly the minimization technique point that you 

raised and then move to the question that you pose. 

On the mitigation techniques, minimization was only one of 

many protections that was built into the statute. FISA also had 

prior targeting before you could place intercepts. You had probable 

cause that an individual was a foreign power or an agent of a foreign power. You had the Foreign Intelligence Surveillance Court, 

and you had a higher standard for U.S. persons. All of that has 

been swept aside for the 215 metadata program. Now there is a 

general order, the NSA determines RAS, whether there is reasonable, articulable suspicion. There is not a different standard—— 

Senator WHITEHOUSE. Well, it has not extremely been swept 

aside for the metadata program. The metadata program faces the 

reality that unless you are gathering the information, you do not 

have a haystack to search in. But it does not mean that a search 

actually ever gets done of the haystack, and the steps required to 

search the haystack are far more rigorous than all the ones that 

you just mentioned. 

Professor DONOHUE. So the problem is that in building the haystack, all of the protections have been thrown out. And with the 

type of information that you can get from this telephony 

metadata—— 

Senator WHITEHOUSE. And that is kind of the question, isn’t it? 

Is the building of the haystack the search or not? Even if nobody 

knows what is in it. Even if nobody knows it, is there a privacy interest that is lost when nobody knows that you made those calls, 

but there is a haystack out there and under the right circumstances somebody could find out? 

Professor DONOHUE. And there are two responses to that—— 

Senator WHITEHOUSE. That is an interesting—that is kind of the 

crux of the question we have got. 

Professor DONOHUE. There are two responses to that. One is the 

Foreign Intelligence Surveillance Act is about the acquisition of information, which is when that information is acquired. And, second, I would go back to the general warrant. The purpose of the 

Fourth Amendment was to prevent general warrants, which was to 

search for information and to conduct searches indefinitely without 

any particularized showing. And there is a constitutional violation 

that goes on in that case. 

Senator WHITEHOUSE. Although there are lots of things that people do in law enforcement and have since the dawn of time that 

they do not even need a general warrant for because there is no 

warrant requirement. And so you cannot use the warrant requirement as a criticism of the way in which that has been done. It has 

never been within it. So things that were not subject to a warrant 

requirement do not require a general—the general warrant problem I do not see as being pertinent here. 

Professor DONOHUE. No, this goes to the reasonableness or 

unreasonableness of the search itself. That was the point of the 

Founders. That was why Jefferson included this. This is why Madi-
62 

son was talking about this. This is why it was in the Virginia Declaration of Rights. This is why New Hampshire, Massachusetts— 

it was the actual reasonableness. 

Senator WHITEHOUSE. And that takes us back to the question of 

what is a search. 

Professor DONOHUE. Of what is a search. Well, the reasonableness—— 

Senator WHITEHOUSE. Does human knowledge—— 

Professor DONOHUE. And unreasonableness. 

Senator WHITEHOUSE. Does human knowledge define the search 

or does its availability in the haystack define the search. And that 

is, I think, a really interesting and important question that we 

need to address. But I do not think you can jump across back and 

forth between those two definitions and still have a logical and 

practical discussion. 

Professor DONOHUE. Okay. Let me address your second point as 

well, which is this broader question, if you can use these powers 

in law enforcement, and there are two parts to this. One is the pen 

register abilities that law enforcement has, and second is the subpoena powers. And just on the subpoena power point, you cannot 

go on fishing expeditions. You cannot, for instance, convene a 

grand jury in Bethesda and just see what is happening in town and 

start mining it for information. You cannot use a subpoena to obtain generalized information. It has to be material and specific to 

a particular suspected crime or individual or series of activities. 

This is not what we are discussing. This is not what could be 

otherwise obtained by a subpoena duces tecum, which the statute 

requires and which the FISC judge, Judge Walton, said there is no 

other legal way you could get this information. So it is very different from the kind of subpoena power that somebody would have 

in law enforcement. 

On the pen register side, I think you are exactly right to highlight what is going on with Jones and the extent to which metadata 

and the types of things that Professor Felten is discussing have 

changed the incursions into privacy that are possible. In the case 

of Smith v. Maryland, Michael Lee Smith had robbed, harassed, 

threatened, made obscene phone calls, drove in front of her house, 

and tried to intimidate her. And on that basis, they got one pen 

register that, within a 24-hour period, recorded that he called her 

again. They went into his house. They got a general—or not a general, they got a specific warrant. They went into his house. They 

found the phone book turned down to her name. That is a completely different situation than collecting bulk information. 

Senator WHITEHOUSE. The holding of the Supreme Court in that 

case—if we are going to talk about the case, the holding of the Supreme Court in that case was not because he behaved in those 

awful ways you are entitled to get this. The holding was this is not 

Fourth Amendment—warrant requirement protected in the first instance. And it did not matter whether he had been awful and engaged in all sorts of abusive and ghastly conduct or not. There is 

a constitutional line that it drew, and the holding was that that 

kind of pen register information simply does not require a warrant, 

period. 
63 

Professor DONOHUE. And I would respond to that, you are absolutely right. In that situation it did not require a warrant. What 

we are talking about is the wholesale collection—— 

Senator WHITEHOUSE. Nor has in any situation since, right? It 

was not—— 

Professor DONOHUE. Well, certainly. Certainly the shadow majority in Jones found exception to that. Justice Alito’s opinion joined 

by three—— 

Senator WHITEHOUSE. Now we are back to my question about the 

shadow majority in Jones, and I will accept that. But I do not think 

it is fair to say that Smith was a case that is defined by its facts 

in any way. It has been one of the cases that has had the broadest 

practical and judicial acceptance in real law enforcement life of 

anything. It has gone on for—— 

Professor DONOHUE. And yet Justice Sotomayor in Jones goes on 

to say that she would not extend to third-party data the same protections that they would otherwise not deserve under the Fourth 

Amendment precisely because of technology. We have seen this also 

in the Circuits at an appellate level. We have seen a number of 

judges express this same—— 

Senator WHITEHOUSE. So to summarize, because I have now gone 

way too far, to summarize, you do think that it would be incumbent 

upon the FISA Court to consider the Jones decision at a minimum, 

and in your view, in considering it they would likely further restrict the capabilities of this program. 

Professor DONOHUE. Not only should they consider it, but this 

also goes back to Senator Blumenthal’s point of the necessity of 

having a constitutional advocate there who can bring up Jones and 

these other cases—as you note, it is nowhere in Eagan’s opinion— 

and to have somebody there who can bring this up so that the 

Court does have to wrestle with this and address this directly. 

Senator WHITEHOUSE. Thank you, Chairman. You have been immensely patient. 

Senator BLUMENTHAL. Thank you. 

I want to thank Senator Whitehouse for raising Jones and this 

issue of technology having to be considered by the FISA Court because it does revive the point that I made in the previous panel 

that a lot of the constitutional jurisprudence seems to depend on 

the Smith v. Maryland case, and the technology there was really 

very primitive compared to what we have now. And if at least a 

number of you feel that Jones may be relevant and should be considered by the FISA Court—let me go back to Professor Cordero— 

would it not be useful to have an advocate to, in effect, present in 

an adversarial way the implications of the Jones case in testing 

surveillance conducted under this very, very different, profoundly 

different technology? 

Professor CORDERO. Well, as this Committee is aware and as the 

Intelligence Committees also, this Committee is in a position to receive information that is not available to the public that involves 

pleadings or opinions that the Court has made beyond that which 

has been identified. So I do not know whether or not Jones has 

ever been considered by the FISA Court in any of its decisions. It 

may be that it has, and it may be that that is information that 
64 

would be available to the Committee or the Intelligence Committees. 

But that being said, the Court has a rule that when there are 

new or novel issues of technology or law that are being presented 

to the Court, it requires a Memorandum of Law from the Government. And so the Government needs to explain and bring to the 

Court’s attention, ‘‘Court, this is something that you have not seen 

before, and here is our Memorandum of Law explaining sort of the 

parameters of that.’’ And whether that would involve the Jones 

case or some other relevant case law, certainly it would be the 

practice of the Department as a general matter to inform the Court 

and bring to the Court’s attention relevant case law. 

Again, I cannot speak to whether or not this specific case has 

been an issue that has arisen in a Memorandum of Law that the 

Department has provided, but I certainly—— 

Senator BLUMENTHAL. Well, you say—— 

Professor CORDERO. Would not be surprised. 

Senator BLUMENTHAL [continuing]. You cannot speak to it. Are 

you saying that to your knowledge Jones has not been presented? 

Because I am not aware of Jones having been part of any—— 

Professor CORDERO. I simply do not know, sir, because I left Government at the end of 2009. 

Senator BLUMENTHAL. Okay. 

Professor CORDERO. So I simply do not have that information. 

Perhaps the Committees do, or perhaps the other Committees do. 

Senator BLUMENTHAL. But so far as you know—and you cited a 

certain number of judges and a certain number of opinions, 14 

judges in 34, did you say—— 

Professor CORDERO. Instances, right, where the 215 program was 

affirmed by the Court. But speaking more—— 

Senator BLUMENTHAL. None to your knowledge has considered 

Jones? 

Professor CORDERO. Well, when I am saying they have—whether 

or not they have considered Jones, I am speaking a little bit more 

generally, so not just with respect to 215. As a general matter, if 

the Government were presenting novel issues of technology or law, 

they would brief the Court on those issues, and I would expect that 

they would bring important cases to the Court’s attention. 

Senator BLUMENTHAL. And I understand your point that the Government has, as you have referred to it, a ‘‘heightened obligation’’ 

because there is no one on the other side. But there is an institutional interest and maybe even a national security interest in the 

Government not raising for the Court, ‘‘By the way, Judge, you 

know, here are the ways that Jones could really challenge this 

whole construct of jurisprudence on which the warrant procedure 

rests, and here are the’’—in other words, it may not be directly 

raised by a specific request of the Court, and it would take a great 

deal of heightened scrutiny or heightened obligation for counsel to, 

on its own initiative, raise a challenge of that kind. 

So we both know that courts always make better decisions if they 

hear both sides of the argument through an adversarial process. It 

is a theme that runs through our court system. It is one of the 

underpinnings of our jurisprudential system. And you have indicated just now that perhaps the office of—the Civil Liberties Pro-
65 

tection Officer could provide some kind of substitute. But, of course, 

that Officer now under statute reports to the Director of National 

Intelligence. There is no way that that Officer could present an objective or independent view, either in litigation or even in advising 

the Court. 

So I come back to the question: Doesn’t the question that Senator 

Whitehouse has been raising about the implications of Jones raise 

again—shouldn’t the FISA Court have been hearing exactly these 

kinds of questions? 

Professor CORDERO. Well, I guess, Senator, what I am suggesting 

is that I think there is a reasonable possibility that the Government, in fact, would brief the Court on a decision of such import 

in its capacity of providing a Memorandum of Law regarding the 

issues that it would provide in its ex parte, in camera process. 

In addition, with respect to the special advocate, I think there 

also could be some consideration to the relationship that exists currently between the Government and the FISA Court, and I think 

that relationship and sort of the exchange of information and the 

process that goes back and forth is explained in Judge Walton’s letter. 

In considering the proposals for the advocate, I would hope that 

the Committee would sort of take into advisement whether or not 

adding an adversarial process might actually disrupt in some way 

that relationship of trust and working together that the Department and the Court have developed over a course of decades. 

Professor DONOHUE. Senator, may I add something to that? 

Senator BLUMENTHAL. Yes. I was actually going to ask both Professor Donohue and Professor Felten to comment. 

Professor DONOHUE. Thank you. So I want to recognize at the 

outset, in 2009 it was the Department of Justice that actually recognized that there were noncompliance incidents going on, and 

they were the ones that reported it to the Foreign Intelligence Surveillance Court, that for the first 3 years the program operated, 

that actually of 18,000 inquiries per day as of January, only 1,800 

or so had reasonable, articulable suspicion. It was DOJ that was 

performing its due diligence and reported that to the Court. 

With that said, you know, as Justice Jackson reminded us in 

Irvine v. California, the executive is hardly a disinterested, neutral 

observer when its own interests are on the line. We read in Federalist 47 and 48, Federalist 51, when Madison says the ambition 

of the man must be aligned with the ambition of the office; if Government is to govern man, we must find a way to get it to control 

itself; that these checks and balances are very important. And as 

you note, within our judicial system, we have adversarial processes 

to ensure that individual interests do not taint the outcome of 

cases. 

And so I think it is terribly important to have somebody there 

to represent constitutional concerns that does not have an interest 

that might otherwise be swayed, and that provides another voice 

to the Court, especially if they are going to be considering such 

weighty constitutional questions and then issuing opinions secretly, 

hundreds of pages long that carve out exceptions to the Fourth 

Amendment. You absolutely have to have an adversarial process 

involved in that. 
66 

Senator BLUMENTHAL. Thank you. 

Professor Felten. 

Professor FELTEN. Whether it is through an adversarial process 

or through the Government presenting the full scope of information 

to the Court, when it comes to issues of complex technology, it is 

important that the Court has access to the kind of expertise that 

it needs to make a well-informed decision. And perhaps that takes 

the form of the Court being able to use a court-appointed expert 

or a special master, perhaps if there is an adversarial process, whoever it is that is arguing on behalf of civil liberties or the public 

also has access to the expertise that they need to do that well. 

Senator BLUMENTHAL. Thank you. 

Senator Whitehouse, did you have other questions? 

Senator WHITEHOUSE. Mr. Chairman, I just wanted to observe 

that actually in our own procedures here we do our very best to try 

to create that adversarial exchange of views. Clearly, Professor 

Cordero and Professor Donohue have very different views about 

what should be done here. Each has acquitted themselves I think 

with very great ability in this particular forum, and it is a virtual 

constant that in our hearings we have witnesses from different 

points of view so that we can hear those. 

In my years on the Intelligence Committee, I really felt that we 

were—a difficulty was created for the Committee by the fact that 

in deeply classified programs there was no way that you could 

bring a different view in. And so in the same way that the Government has a heightened standard, I think we all felt very keenly the 

heightened standard of inquiry necessary because there was not 

public inquiry and there was not exchange of views. And that to 

me is—we vote with our feet sometimes, and in Congress, I think 

we have voted with our feet in favor of as close to an adversarial 

type method as we can in the way we conduct our hearings in the 

ordinary course. 

And so I am not sure that the mechanism of an independent 

body that is all on its own is exactly the right one, but I am firmly 

in your camp that improving that ability for the FISA Court to 

have a broader range of views presented to it and to build in the 

adversary process is an important step in the right direction. 

Senator BLUMENTHAL. Thank you. I appreciate those comments 

and your questions earlier, and I want to say that this is a very 

difficult and challenging issue or set of issues, and I really appreciate the testimony that has been given by this panel. I have been 

enlightened by the somewhat adversarial exchanges here with 

some of you, and I think that the subject bears a lot more thought 

and consideration. I would invite each of you to submit additional 

comments and hope that I can consult with you, because you bring 

a set of experiences as well as expertise that I think will be very 

valuable as we move forward, and particularly to my colleagues, I 

will encourage them as well to consider all of your views. 

So thank you for being here. Thank you for your excellent testimony. This hearing is adjourned. We will keep the record open for 

10 days, and please submit additional comments if you have any. 

Thank you very much. 

[Whereupon, at 1:38 p.m., the Committee was adjourned.] 

[Additional material submitted for the record follows.] 
(67) 

A P P E N D I X 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
68 

JOINT STATEMENT FOR THE RECORD 

OF 

JAMES R. CLAPPER 

DIRECTOR OF NATIONAL INTELLIGENCE 

GENERAL KEITH B. ALEXANDER 

DIRECTOR 

NATIONAL SECURITY AGENCY 

CHIEF 

CENTRAL SECURITY SERVICE 

BEFORE THE 

SENATE COMMITTEE ON THE JUDICIARY 

OCTOBER 2, 2013 

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Joint Statement for the Record 

of 

James R. Clapper 

Director of National Intelligence 

General Keith B. Alexander 

Director, National Security Agency and Chief, Central Security Service 

Before the 

Senate Committee on the Judiciary 

October 2, 2013 

Thank you for inviting us to discuss the Administration's efforts to enhance public 

confidence in the important intelligence collection programs that have been the subject of 

unauthorized disclosures since earlier this year: the collection of bulk telephony metadata under 

the business records provision found in section 215 of the USA PATRIOT Act, and the targeting 

of non-U.S. persons overseas under section 702 of FISA. We remain committed, as we review 

these activities, both to ensuring that we have the authorities we need to collect important foreign 

intelligence to protect the country from terrorism and other threats to national security, and to 

protecting privacy and civil liberties in a manner consistent with our values. We also remain 

committed to working closely with this Committee as any modifications to these activities arc 

considered. We understand that some of the initiatives announced by the President in his 

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statement on August 9 arc of interest to the Committee, and we welcome the opportunity to 

discuss them with you and to work together in moving forward. 

The first step in promoting greater public confidence in these intelligence activities is to 

provide greater transparency so that the American people understand what the activities are, how 

they function, and how they are overseen. As you know, many of the reports appearing in the 

media concerning the scope of the Government's intelligence collection efforts have been 

inaccurate, including with respect to the collection carried out under sections 215 and 702. In 

response, the Administration has released substantial information since June to increase 

transparency and public understanding, while also working to ensure that these releases arc 

consistent with national security. 

We have worked to provide the public greater insight into the operation of the bulk 

telephony metadata business records collection program under section 215. In early June, the 

Director of National Intelligence (DNI) released a public statement explaining that the program 

is carried out only pursuant to orders of the Foreign Intelligence Surveillance Court (FISC) and 

is subject to executive, judicial, and Congressional oversight. The DNI emphasized that, under 

this program, we do not collect the content of any telephone calls or any information identifying 

the callers, nor do we collect cell phone locational information. Rather, the Government obtains 

business records created and retained by telecommunication companies for their own internal 

purposes, such as billing. The DNI also explained that the Government is authorized to query 

the bulk mctadata only when there is a reasonable, articulable suspicion, based on specific facts, 

that the identifier--e.g., a telephone number-used to query the data is associated with a foreign 

terrorist organization previously approved by the FISC. Subsequently, the DNI declassified and 

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released the FISC's primary order that accompanied the secondary order that had been disclosed 

in the media, so that the American people could have a more complete picture of the legal 

parameters under which this activity occurs and the extensive oversight that the FISC requires. 

The primary order confirms that the Government must adhere to strict limitations on querying, 

retaining, and disseminating tl1e business records acquired through this program. The Director of 

NSA also released information concerning the value of the bulk telephony metadata collection 

program in support of a number of counterterrorism investigations. 

In August, the Administration published an extensive white paper to provide more 

detailed information concerning the section 215 business records program and its legal basis. 

The white paper explained the process and importance of "contact chaining" under which the 

NSA may obtain metadata records as many as mrcc "hops" from an identifier associated with a 

foreign terrorist organization that is used to query the data. It also explained why the telephony 

metadata collection program meets me "relevance" standard of section 215 and why the program 

is fully consistent with settled Fourth Amendment law, including the Supreme Court's precedent 

holding that participants in telephone calls Jack a reasonable expectation of privacy in the 

telephone numbers dialed. Then, in early September the DNI declassified and released more 

documents concerning the business records program. These documents discuss compliance 

incidents that were discovered by NSA and DOJ four years ago, reported to the FISC and to the 

intelligence and judiciary committees, and subsequently resolved. These materials (and others) 

show that me oversight system worked. The problems were reported to the FISC, the FISC 

conducted a rigorous review to ensure compliance with its orders and the protection of 

Americans' privacy, and the Intelligence Community responded effectively. 

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We have also substantially increased the transparency of the Government's collection 

under section 702 of FISA. Even before the recent unauthorized disclosures, the Administration 

had prepared a public white paper in conjunction with reauthorization of the FISA Amendments 

Act (FAA) at the end of last year, explaining its intelligence collection activities under the FAA 

and focusing in particular on collection under section 702. That paper emphasized that section 

702 collection targets only non-U.S. persons overseas, and that targeting and minimization 

procedures and acquisition guidelines are required to ensure that the statutory restrictions are 

followed and to govern the handling of any U.S. person information that may be incidentally 

acquired. After the unauthorized disclosures concerning section 702 collection, the DNI refuted 

much ofthe inaccurate reporting about the program by releasing a public statement making clear 

that the Government does not have access to communications carried by U.S. electronic 

communications service providers without appropriate legal authority. Under section 702 such 

companies are legally required to provide targeted information to the Government only in 

response to lawful Government directives, which are issued after the FISC examines and 

approves certifications required under section 702. The DNI's statement also explained that the 

Government cannot collect information under section 702 unless there is an appropriate and 

documented foreign intelligence purpose, such as preventing terrorism or weapons of mass 

destruction proliferation. 

In August, the DNI declassified and released three opinions from the FISC concerning 

the section 702 program. As was the case with the section 215 opinions, these opinions 

concerned a significant compliance incident that caused the Court to criticize the manner in 

which the section 702 program was being carried out. And, similarly, these opinions provide the 

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public with considerable insight into the nature and functioning of section 702 collection, while 

also displaying the detailed and intricate extent of the FISC's review. Indeed, while the FISA 

statute describes the basic procedures by which the Intelligence Community seeks various 

authorizations from the FISC, the opinions released reveal fully the thorough, thoughtful, 

independent review that the FISC provides. 

The Administration has taken other steps toward increasing transparency more generally 

in the context of intelligence collection. For example, the DNI recently introduced a new 

website called "IC on the Record," which provides ongoing, direct access to information about 

the foreign intelligence collection activities carried out by the Intelligence Community. 

Administration officials have also made a number of important public statements relating to the 

Government's foreign intelligence collection efforts, including a speech by the General Counsel 

of the Office of the Director of National Intelligence at the Brookings Institution. Moreover, the 

Government has permitted companies interested in providing greater transparency as to their role 

in these programs to release certain aggregate statistics about their cooperation with lawful 

demands from the Government, in a way that will avoid revealing the Government's intelligence 

collection capabilities with respect to particular providers or platforms. And of course there have 

been a number of open hearings before committees of the Congress on these issues. 

Overall, this is a lot of activity for three months. As we have worked toward greater 

transparency, we have been mindful of the need to protect intelligence sources and methods. 

Unfortunately, because of the unauthorized disclosures, a great deal of information that was 

previously classified about these intelligence programs is now in the public domain. These 

unauthorized disclosures have already caused significant harm to national security, and 

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74 

inaccurate or incomplete press coverage of the unauthorized disclosures has also undermined 

public confidence in our efforts to protect Americans' privacy. We have to consider these effects 

as we assess whether additional harm will flow from releasing additional information. There is 

still substantial information about these activities that can and must remain classified, and we 

have therefore taken great care to ensure that any documents that arc considered for release arc 

carefully reviewed and redacted as appropriate to protect national security. Ultimately, the 

Government must walk a fine line by disclosing enough information to assure the American 

public that the Government is acting lawfully but not disclosing so much information that we put 

the American public in danger. 

To complement these transparency efforts, the Administration has taken a series of steps 

to enhance independent review of U.S. intelligence collection programs. In his August 9 

statement, the President noted the importance of the Privacy and Civil Liberties Oversight 

Board's (PCLOB's) review. PCLOB's statutory mission is "to analyze and review actions the 

executive branch takes to protect the nation from terrorism, ensuring that the need for such 

actions is balanced with the need to protect privacy and civil liberties." PCLOB is taking an 

active role in reviewing the intelligence activities carried out under sections 215 and 702. The 

Board has received extensive briefings from Administration officials concerning these activities 

and visited the NSA. In July PC LOB sponsored a public workshop to hear from expert panels 

and the public. 

In his speech in August, President Obama also announced the establishment of a Review 

Group on Intelligence and Communications Technologies. The Review Group's task is to advise 

the President "on how, in light of advancements in technology, the United States can employ its 

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75 

technical collection capabilities in a way that optimally protects our national security and 

advances our foreign policy while respecting our commitment to privacy and civil liberties, 

recognizing our need to maintain the public trust, and reducing the risk of unauthorized 

disclosure." The group is charged with conducting an independent review and will report to the 

President. Group members have received briefings from Administration officials and have met 

with privacy and civil liberties experts, as well as information technology companies and 

experts. The group will also be soliciting public comments. The Review Group has been 

directed to submit an interim report to the President within 60 days and a final report by the end 

of the year. 

Throughout this period, the FISC has continued to exercise its central oversight role with 

respect to intelligence collection carried out under FISA. In July, ODNl announced that the 

FISC had renewed its approval for the section 215 program. In connection with that renewal, the 

FISC has also publicly released an opinion explaining the legal rationale for its decision. 

Moreover, as the President discussed in his August 9 statement, the executive branch 

stands ready to work with Congress to pursue appropriate reforms to section 215, to discuss 

certain changes to practice before the FISC to ensure that civil liberties concerns have an 

independent voice in appropriate cases, and to consider efforts at strengthening the transparency 

of these and other intelligence activities, all in ways consistent with protecting national security. 

Regarding section 215, we are open to a number of ideas that have been proposed in various 

quarters to address concerns about the business records program. For example, we would 

consider statutory restrictions on querying the data that arc compatible with operational needs, 

including perhaps greater limits on contact chaining than what the current FISC orders permit. 

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We could also consider a different approach to retention periods for the data-consistent with 

operational needs-and enhanced oversight and transparency measures, such as annual reporting 

on the number of identifiers used to query the data. To be clear, we believe the manner in which 

the bulk telephony metadata collection program has been carried out is lawful, and existing 

oversight mechanisms protect both privacy and security. However, there are some changes that 

we believe can be made that would enhance privacy and civil liberties as well as public 

confidence in the program, consistent with our national security needs. 

On the issue of FISC reform, we believe that the ex pane nature of proceedings before 

the FISC is fundamentally sound and has worked well for decades in adjudicating the 

Government's applications for authority to conduct electronic surveillance or physical searches 

in the national security context under FISA. However, we understand the concerns that have 

been raised about the lack of independent views in certain cases, such as cases involving bulk 

collection, that affect the privacy and civil liberties interests of the American people as a whole. 

Therefore, we would be open to discussing legislation authorizing the FISC to appoint an 

amicus, at its discretion, in appropriate cases, such as those that present novel and significant 

questions of law and that involve the acquisition and retention of information concerning a 

substantial number of U.S. persons. Establishing a mechanism whereby the FISC could solicit 

independent views of an amicus in a subset of cases that raise broader privacy and civil liberties 

questions, but without compromising classified information, may further assist the Court in 

making informed and balanced decisions and may also serve to enhance public confidence in the 

FISC process. 

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77 

And with regard to enhancing transparency and accountability, the President has directed 

that the Intelligence Community declassify and make public as much information as possible 

about certain sensitive intelligence collection programs, including programs undertaken pursuant 

to sections 215 and 702, while being mindful of the need to protect sensitive classified 

intelligence and national security. Consistent with that direction, the DNI has directed the 

Intelligence Community to release publicly, on an annual ba~is, aggregate information 

concerning compulsory legal processes under certain national security authorities. We stand 

ready to discuss whether legislation would be helpful in advancing the President's objective of 

ensuring greater transparency for the activities of the Intelligence Community, where consistent 

with the protection of classified information. 

While it is important that we have the aforementioned dialogue about security and civil 

liberties, we'd also like to take a moment to reiterate some of the comments the President has 

made about the hard-working men and women of the intelligence community who work every 

single day to keep us safe because they love this country and believe in its values. These 

professionals are Americans, to(}--they come from the same communities, go to the same 

schools, and care about the same things all Americans do. While the ongoing debate is an 

important one, and may well result in changes, that dialogue should in no way be perceived as a 

negative reflection on the dedicated professionals of our Intelligence Community. 

We look forward to working with you on these important issues, and we remain grateful 

for this Committee's support for these particular intelligence collection programs, which we 

continue to believe play an important role in our broader foreign intelligence collection efforts. 

We hope that, with the assistance of this Committee, we can ensure that these programs are on 

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78 

the strongest possible footing, from the perspective of both national security and privacy, so that 

they will enjoy broader public and Congressional support in the future. Thank you. 

- II -
79 

Opening Statement of GEN Keith B. Alexander, Director, NSA 

before the Senate Committee on the Judiciary 

2 October 2013 

• Chairman Leahy, Ranking Member Grassley, distinguished members of the Committee, thank you for 

the opportunity to provide opening remarks. 

• I am privileged today to represent the work of the dedicated professionals at the National Security 

Agency who employ the authorities provided by Congress, the federal courts and the Executive 

Branch to help protect the nation and protect our civil liberties and privacy. 

• If we are to have an honest debate about how NSA conducts its business, we need to step away from 

sensationalized headlines and focus on facts. 

• Our mission is defend the nation and to protect our civil liberties and privacy. Ben Wittes from the 

Brookings Institution said about the media leaks and specifically about these two FISA programs: 

"shameful as it is that these documents were leaked, they actually should give the public great 

confidence in both NSA's internal oversight mechanisms and in the executive and judicial oversight 

mechanisms outside the Agency. They show no evidence of any intentional spying on Americans or 

abuse of civil liberties. They show a low rate of the sort of errors any complex system of technical 

collection will inevitably yield. They show robust compliance procedures on the part of the NSA. And 

they show an earnest, ongoing dialogue with the FISA court over the parameters of the Agency's 

legal authority and a commitment both to keeping the court informed of activities and to complying 

with its judgments on their legality." 

• Today I'd like to present facts to specifically address: 

0 Who we are in terms of both our mission and our people; 

0 What we do: adapt to technology and the threat; take direction from political leadership; operate 

strictly within the law and consistent with explicit intelligence priorities; and ensure compliance 

with all constraints imposed by our authorities and internal procedures; 

0 What we have accomplished specifically for our wuntry with the tools we have been authorized; 

and 

0 Where do we go from here? 

Who We Are- Our Mission 

• NSA is a foreign intelligence agency with two missions: 

o We collect foreign intelligence of national security interest and 

o We protect certain sensitive information and U.S. networks. 

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80 

o All this while protecting our civil liberties. 

• NSA contributes to the security of our nation, its armed forces, and our allies. 

• NSA accomplishes this mission, while protecting civil liberties and privacy- because the constitution 

we are sworn to protect and defend makes no allowances to trade one for the other. 

• NSA operates squarely within the authorities granted by the president, congress and the courts. 

Who We Are- Our People 

• I'm proud of what NSA does and more proud of our people. 

o National Security Agency employees take an oath to protect and defend the constitution of the 

United States of America. 

o They have devoted themselves to protecting our nation. 

o Just like you, they will never forget the moment terrorists killed 2,996 Americans in New York, 

Pennsylvania, and the Pentagon. 

o They witnessed the first responders' efforts to save lives. They saw the military shift to a wartime 

footing. They committed themselves to ensuring that another 9/11 would not happen and our 

deployed forces would return home safely. 

o In fact, they deploy with our armed forces into areas of hostility. 

• More than 6,000 deployed in support of operations in Iraq, Afghanistan, and CT. 

• 22 paid the ultimate sacrifice since 9/11; sadly adding to a list of NSA/CSS personnel numbering 

over 170 killed in the line of duty since NSA's formation in 1952. 

• Theirs is a noble cause. 

• NSA prides itself on its highly skilled workforce. 

o We are the largest employer of mathematicians in the U.S. (1,013). 

o 966 PhDs and 4,374 computer scientists. 

o Linguists in more than 120 languages. 

o More patents than any other Intelligence Community agency and most businesses. 

o They are also Americans and they take their privacy and civil liberties seriously. 
81 

What We Do- Adapt to Technology and the Threat 

• Today's telecommunications system is literally one of the most complex systems ever devised by 

mankind. 

• The fact that over 2.5 billion people all connect and communicate across a common infrastructure is 

a tribute to the ingenuity of mankind. The stark reality is that terrorists, criminals and adversaries 

make use of the same infrastructure. 

• Terrorists and other foreign adversaries hide in the same global network, use the same 

communications networks as everyone else, and take advantage of familiar services: Gmail, 

Face book, Twitter, etc. Technology has made it easy for them. 

• We must develop and apply the best analytic tools to succeed at our mission; finding the 

communications of adversaries while protecting those of innocent people, regardless of their 

nationality. 

What We Do- Take Direction from Political Leadership (NIPF) 

• NSA's direction comes from national security needs, as defined by the nation's senior leaders. 

• NSA does not decide what topics to collect and analyze. 

• NSA's collection and analysis is driven by the national intelligence priorities framework and received 

in formal tasking. 

• We do understand that electronic surveillance capabilities are powerful tools in the hands of the 

state. That's why we have extensive mandatory internal training, automated checks, and an 

extensive regime of both internal and external oversight. 

What We Do- Use Lawful Programs and Tools to Do Our Mission 

• The authorities we have been granted and the capabilities we have developed help keep our nation 

safe. 

• Since 9/11 we have disrupted terrorist attacks at home and abroad using capabilities informed by the 

lessons of 9/11. 

• The Business Records FISA program, NSA's implementation of Section 215 of the PATRIOT Act, 

focuses on defending the homeland by linking the foreign and domestic threats. 

• Section 702 of FISA focuses on acquiring foreign intelligence, including critical information concerning 

international terrorist organizations, by targeting non-U.S. persons who are reasonably believed to 

be located outside the United States. 

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82 

• NSA also operates under other sections of the FISA statute in accordance with the law's provisions 

(such as Title 1 and Section 704). 

• It is important to remember that in order to target a U.S. person anywhere in the world under the 

FISA statute, we are required to obtain a court order based on a probable cause showing that the 

prospective target of the surveillance is a foreign power or agent of a foreign power. 

• NSA conducts the majority of its SIGINT activities solely pursuant to the authority provided by 

Executive Order (EO) 12333. 

• As I have said before, these authorities and capabilities are powerful; we take this responsibility 

seriously. 

What We Do- Ensure Compliance 

• We stood up a Director of Compliance in 2009 and repeatedly train our entire workforce in privacy 

protections and the proper use of capabilities. 

• We do make mistakes. The vast majority of compliance incidents reflect the challenge of 

implementing very specific rules in the context of ever-changing technology. 

• Compliance incidents, with very rare exception, are unintentional and reflect the sort of errors that 

will occur in any complex system of technical activity. 

• The press claimed evidence of "thousands of privacy violations." 

• This is false and misleading. 

• According to NSA's independent Inspector General, there have been only 12 substantiated cases of 

willful violation over 10 years- essentially one per year from a population of NSA/CSS personnel 

numbering in the tens of thousands. But the relatively small number of cases does not excuse any 

infraction of the rules. We took action in every case referring several to the department of justice for 

potential prosecution; appropriate disciplinary action was taken in others. 

• We hold ourselves accountable every day. 

• Most of these cases involved improper tasking or querying regarding foreign persons in foreign 

places. 

• I am not aware of any intentional or willful violations of the FISA statute, which is designed to be 

most protective of the privacy interests of U.S. persons. 

• Of the 2,776 incidents noted in the press from one of our leaked annual compliance reports, about 

75% are not violations of approved procedures at all but rather NSA's detection of valid foreign 

targets that travel to the U.S. and a record that NSA stopped collecting, in accordance with the rules 

(roamers). 

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83 

• Let me also start to clear the air on actual compliance incidents. 

• The vast majority of the actual compliance incidents involve foreign locations and foreign activities, 

as our activities are regulated by specific rules wherever they occur. 

• For the smaller number that did involve a U.S. person, a typical incident involves a person overseas 

involved with a foreign organization who is subsequently determined to be a U.S. person. All initial 

indications and research before collection point the other way, but NSA constantly re-evaluates 

indications. 

• NSA detects and corrects and- in most cases- does so before any information is even obtained, 

used, or shared outside of NSA. 

• Despite the difference, between willful and not, we treat incidents the same: we detect, we address, 

we remediate- including removing or purging information from our databases in accordance with 

the rules. And we report. 

• We hold ourselves accountable and keep others informed so they can do the same. 

• On NSA's compliance regime Ben Wittes said at last Thursday's Intelligence Committee hearing: "but 

one thing we have learned an enormous amount about is the compliance procedures that NSA uses. 

They are remarkable. They are detailed. They produce data streams that are extremely telling- and, 

to my mind, deeply reassuring."(26 September) 

• We welcome an ongoing discussion about how the public can, going forward, have increased 

information about NSA's compliance program and its compliance posture, much the same way all 

three branches of the government have today. From our perspective, additional measures that will 

increase the public's confidence in these authorities and our use of them, can and should be open for 

discussion. 

What We have Accomplished for Our Country 

• NSA's existing authorities and programs have helped "connect the dots," working with the broader 

Intelligence Community and homeland and domestic security organizations, for the good of the 

nation and its people. 

• NSA's programs have contributed to understanding and disrupting 54 terror related events: 25 in 

Europe, 11 in Asia, 5 in Africa, and 13 related to the homeland. 

• This was no accident nor coincidence. 

• These were direct results of a dedicated workforce, appropriate policy, and well scoped authorities 

created in the wake of 9/11 to make sure 9/11 never happened again. 

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84 

• This is not the case in other countries. In the week ending 23 September there were 972 terrorrelated deaths in Kenya, Pakistan, Afghanistan, Syria, Yemen and Iraq. [Kenya, 62; Pakistan, 75; 

Afghanistan, 18; Syria, 504; Yemen, SO; and Iraq, 263]. 

• Another 1,030 were injured in the same countries. 

• We need these types of programs to protect against having these types of statistics on our soil. 

• NSA's global system is optimized for today's technology on a global network. 

• Our analytic tools are effective at finding terrorist communications in time to make a difference. 

• This global system and analytic tools are also what we need for cybersecurity. 

• This is how we see in cyberspace, identify threats there, and defend networks. 

• On 9 August the President laid out some specific steps to increase the confidence of the American 

people in our foreign intelligence collection programs. 

• We are always looking for ways to better protect privacy and security. We have improved over time 

our ability to reconcile our technology with our operations and with the rules and authorities. We 

will continue to do so as we go forward and strive to improve how we protect the American peopletheir privacy and security. 

• Regarding NSA's telephone meta data program, policy makers across the Executive and Legislative 

Branches will ultimately decide whether we want to sustain or dispense with a tool designed to 

detect terrorist plots across the seam between foreign and domestic domains. Different 

implementations of the program can address the need, but each should be scored against several key 

attributes: 

o Privacy- privacy and civil liberties are protected. 

o Agility- queries can be made in a timely manner so that, in the most urgent cases, results can 

support disruption of imminent terrorist plots. 

o Duration -terrorist planning can extend for years, so the meta data repository must extend back 

for some period of time in order to discover terrorist plans and disrupt plots. 

o Breadth- repository of meta data is comprehensive enough to ensure query responses can 

indicate with high confidence any connections a terrorist-associated number may have to other 

persons who may be engaged in terrorist activities. 

• As you consider changes in meta data storage location, length of storage, who approves query terms, 

and the number of hops, we must preserve these foundational attributes of BR FISA. 
85 

o Similarly as you entertain reforms to the FISC, operational and practical considerations must be 

weighed so that there are no inherent delays; emergency provisions are maintained; and any reform 

to the FISC structure is respectful of the nature of classified information. 

Conclusion 

o NSA looks forward to supporting the discussion of reforms. Whatever changes are made, we will 

exercise our authorities dutifully, just as we have always done. 

o The leaks of classified NSA and partner information will change how we operate and what people 

know about us. 

o However, the leaks will not change the ethos of the NSA workforce, which is dedicated to finding and 

reporting the vital intelligence our customers need to keep the nation safe, in a manner that is fully 

compliant with the laws and rules that authorize and limit NSA's activities and sustain the privacy 

protections that we as a nation enjoy. 

o I look forward to answering your questions. 

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Oral Remarks Prepared for the Oct. 2, 2013 Hearing on 

Continued Oversight of the Foreign Intelligence Surveillance Act 

Senate Committee on the Judiciary 

Professor Laura K. Donohue 

Georgetown Law 

Thank you for inviting me to discuss the NSA's collection of telephony metadata under 

Section 215 and its acquisition of international communications under Section 702. It is 

my view that the bulk collection of U.S. citizens' metadata is illegal and unconstitutional. 

1 have submitted more detailed written remarks for the record. For now I will highlight 

what I see as the most pressing concerns. 

I. UNCONSTITUTIONALITY OF BULK COLLECTION 

The government argues that the telephony metadata collection program complies with the 

Constitution. ln doing so, it relies, in part, on a case called Smith v. Maryland, in which 

the court held that participants in telephone calls lack a reasonable expectation of privacy 

in the telephone numbers dialed and received on one's phone. The government also 

argues that the national security interests at stake override whatever privacy intrusion 

arises from the bulk collection of metadata. For two reasons, these arguments are 

problematic. 

First, the telephony metadata program amounts to a general warrant, the use of 

which by the English played a key role in the American Revolution and led directly to the 

creation of the Fourth Amendment. 

A general warrant was a writ, issued by a court, that did not expire and that 

allowed officials to collect information and to search anywhere, without any 
87 

particularized suspicion. In 1760 British Prime Minister William Pitt directed the 

colonial governors to use such writs of assistance to crack down on illegal behavior. In 

one of the most famous orations in American history, James Otis challenged such 

"instruments of slavery on one hand and villainy on the other". He considered them "the 

worst instrument of arbitrary power", in part because no prior evidence of wrongdoing 

need be involved in their execution. John Adams, who was present at the time, later wrote 

that Otis' remarks "breathed into this nation the breath of life." "Then and there," Adams 

reported, "was the first scene of the first act of opposition to the arbitrary claims of Great 

Britain. Then and there the child Independence was born." 

The Virginia Declaration of Rights subsequently included a clause (Article 1 0), 

outlawing "general warrants, whereby an officer ... may be commanded to search 

suspected places without evidence of a fact committed, or to seize any person or persons 

not named, or whose offense is not particularly described and supported by evidence." 

Similar language was adopted by Massachusetts and New Hampshire in their state 

Constitutions. Some of the most important ratifying conventions (Virginia, New York, 

and North Carolina) required that a prohibition on general warrants be incorporated into 

the Bill of Rights in order for the states to agree to the U.S. Constitution. Accordingly, 

James Madison wrote the Fourth Amendment to prevent the use of general warrants in 

the future. They were the very definition of"unreasonable search and seizure." 

The FISC Order authorizing the telephony mctadata program is a general warrant. It 

authorizes the government to collect and then to rummage through our papers and effects 

in the hope of finding wrongdoing. There is no previous suspicion of criminal activity 

2 
88 

required. FISC admits that almost none of the information obtained relates to illegal 

behavior. 

It matters little whether one stores ones papers in a filing cabinet in one's den, or 

places documents on the iCloud-the digital equivalent, in modem times, of a filing 

cabinet. The sheer volume of information we manage in our daily affairs requires 

individuals to arrange for storage of everything from medical records to family photos. 

Email, in tum, holds our correspondence-papers that we place on a server with a 

company with whom we have a contractual relationship. Banking records may be 

similarly accessible over the Internet. 

This is our modem day equivalent of papers and effects, and allowing the government 

to obtain records of all of this information is the equivalent of a digital trespass on our 

private lives. The trespass in which the NSA is engaging is not supported by probable 

cause, it is not even supported by reasonable suspicion-indeed, no suspicion of any 

wrongdoing whatsoever is contemplated by the collection of myriad records of all U.S. 

persons. It is the equivalent of a general warrant and, as such, it is odius to the Fourth 

Amendment. 

Second, in defending the telephony metadata program, the government relies on 

the Court's construction of a reasonable expectation of privacy in Katz v. United States 

(1967) and argues that, consistent with Smith v. Maryland (1979), third party information 

is not constitutionally-protected. This argument fails to appreciate the facts of Smith and 

the manner in which society now operates. It also ignores a more recent case, US. v. 

Jones (2012), which suggests that the Supreme Court is poised to re-evaluate the level of 

3 
89 

protection afforded to U.S. citizens' right to privacy, consistent with the Fourth 

Amendment. 

First, the facts. On March 5, 1976, a woman, Patricia McDonough, was robbed in 

Baltimore. After giving the police a description of the man who assaulted her and a 1975 

Monte Carlo car she had seen near the scene of the crime, she started receiving 

threatening and obscene phone calls in her home from a man who identified himself as 

the robber. At one point, the caller told her to go out on her front porch. When she did 

so, she saw the Monte Carlo driving slowly past her house. On March 16, the police 

observed a car of the same description in her neighborhood. Tracing the license plate, 

police discovered that the car was registered to Michael Lee Smith. The following day, 

the police asked the telephone company to install a pen register to trace the numbers 

called from Smith's home telephone. The company voluntarily consented, and that day 

Smith called Patricia McDonough's home. On the basis of this and other information, the 

police applied for and obtained a search warrant. Upon executing the warrant, police 

found a telephone book in Smith's home, with the comer turned down to Patricia 

McDonough's name and number. In a subsequent six-man lineup, McDonough 

identified Smith as the person who robbed her. 

Michael Lee Smith had robbed, threatened, intimidated, and harassed Patricia 

McDonough. The police, accordingly, placed a pen register, consistent with their 

reasonable suspicion that Michael Lee Smith was engaged in criminal wrongdoing. 

The NSA would treat every American as though they were Michael Lee Smith. 

And it would collect not just the numbers dialed from the home of a suspected 

criminal, but all law-abiding citizens' metadata: whom we call, who calls us, how long 

4 
90 

we talk, and where we are located when we do so. Calls to a rape crisis line, an abortion 

clinic, a suicide hotline, or a political party headquarters reveal significantly more 

information than what was being sought in Smith. 

And the NSA would do this indefinitely. 

The sheer amount of information available is significantly different from what 

was at stake in the pen register placed for a 24-hour period on Michael Lee Smith's line. 

Let us be clear: it is not just telephony metadata that is of issue. The 

government's argument could be extended to any sort ofmetadata--email, banking 

records, Internet usage, financial transactions-the list continues. The extent to which 

we rely on electronic communications to conduct our daily lives is of a fundamentally 

different scale and complexity than the situation that existed in 1979. Resultantly, the 

extent of information that can be learned about not just individuals, but towns, 

neighborhoods, school boards, political parties, girl scout troops-indeed, any social, 

political, or economic network, is light years ahead of what the Court contemplated at the 

time. 

Americans reasonably expect that their movements, communications, and 

decisions will not be recorded and analyzed by the government. A majority of the 

Supreme Court seems to agree. 

In 2012 the Court considered a case involving 28-day surveillance. The 

government had obtained a search warrant permitting it to place a Global-Positioning 

System (GPS) tracking device on a car registered to the wife of a suspected drug dealer. 

The day after the warrant expired, agents installed the device and followed the car's 

movements for nearly a month. Information obtained allowed the government to indict 

5 
91 

Antoine Jones and others on drug trafficking conspiracy charges. The Supreme Court 

held that attaching the GPS device to the car and tracing its movements amounted to a 

search within the meaning of the Fourth Amendment. 

This case is important for determining the constitutionality of the telephony 

metadata program in two important ways. First, it recognized that Katz's reasonable 

expectation of privacy test did not supplant the rights in existence at the time the Fourth 

Amendment was forged. "[A]t a minimum," Justice Scalia wrote, the "18th century 

guarantee against unreasonable searches .... must provide ... the degree of protection it 

afforded when it was adopted." The protection against the use of general warrants thus 

stands. 

Second, at least five justices indicated unease with the intrusiveness of modern 

technology. Justice Samuel A! ito, joined by Justice Ginsburg, Justice Breyer, and Justice 

Kagan, suggested that in most criminal investigations, long-term monitoring "impinges 

on expectations of privacy." Justice Sotomayor went one step further. She suggested 

that, in light of the level of intrusiveness represented by modern technology, "it may be 

necessary to reconsider the premise that an individual has no reasonable expectation of 

privacy in information voluntarily disclosed to third parties." She noted: 

This approach is ill suited to the digital age, in which people reveal a great deal of 

information about themselves to third parties in the course of carrying out 

mundane tasks. People disclose the phone numbers that they dial or text to the 

cellular providers; the URLs that they visit and the e-mail addresses with which 

they correspond to their Internet service providers; and the books, groceries, and 

medications they purchase to online retailers. 

6 
92 

Disclosing information to a member of the public for a limited purpose does not 

divest that data of Fourth Amendment protection. 

II. ILLEGALITY 

The telephony metadata program also violates the express statutory language of the 

Foreign Intelligence Surveillance Act in at least three ways: first, with regard to the 

language "relevant to an authorized investigation"; second, in relation to the requirement 

that the information sought must be otherwise obtainable via subpoena duces tecum; and 

third, in its violation of the restrictions specifically placed on pen registers and trap and 

trace equipment. 

First, the relevance standard. The government argues that the NSA's telephony 

metadata program is consistent with the language of 50 U.S.C. § 1861 in that all 

telephone calls in the United States, including those of a wholly local nature, are 

"relevant" to foreign intelligence investigations. 

This use of the word "relevant" is so absurd as to render the term- and the qualifying 

statutory language -meaningless. 

The statute requires, for instance, that there be "reasonable grounds" to believe that 

the records being sought are relevant. Although FISA does not define "reasonable 

grounds", it has been treated as the equivalent of"reasonable suspicion". This standard 

requires a showing of"specific and articulable facts, which, taken together with rational 

inferences from those facts, reasonably warrant" an intrusion into an individual's right to 

privacy. 

7 
93 

According to Verizon Communications News Center, as oflast year, the company has 

107.7 million wireless customers, connecting an average of I billion calls per day. There 

is simply no way that the government provided specific and articulable facts relevant to 

each one of those customers or calls, sufficient to establish reasonable grounds to 

establish their relevance. The government is thus interpreting "relevant" in a manner that 

makes the qualifying condition of"reasonable grounds" obsolete. 

The government's interpretation is so broad that it establishes a dangerous precedent. 

If all telephony metadata is relevant to foreign intelligence investigations, then so is all 

email metadata, and all GPS metadata, all financial information, all banking records, all 

social network participation, and all Internet use. Indeed, FISC has hinted that there may 

be other, similar programs, and on September 28, 2013, the New York Times reported that 

the NSA began allowing analysis of phone call and email logs in November 2010 to 

begin examining American's networks of associations. If all telephony metadata is 

relevant, then so is all other data-which means that very little would, in fact, be 

irrelevant to such investigations. If this is the case, then such an interpretation radically 

undermines not just the limiting language in the statute, but the very purpose for which 

Congress introduced FISA in the first place. 

FISA, in addition, specifically contemplates the use of such information for use in an 

"authorized investigation". This suggests a particularized, currently existing 

investigation. The FISC Order, in contrast, directs the collection of data for use in 

"authorized investigations''-both now and into the future. How could the court possibly 

anticipate that the data will be relevant to investigations not yet approved? 

8 
94 

The second source of statutory illegality relates to the requirement that tangible goods 

subject to an order under Section 215 ··can be obtained \\ith a subpoena duces tecum 

issued by a court of the Unikd States in aid of a grand jury investigation or with any 

other order issued by a colll1 of the United States directing the production of records or 

tangible things:· 

There is no way. ho\\ever. that any grand jury or coun 11ould allow the bulk 

collection of all Americans· meta data. It would be the equivalent of a grand jury being 

convened in Arlington. Virginia. and issuing a subpoena ··just to find out 11hat is going 

on:· Such tishing expeditions are patently illegal. Subpoenas. moreo1 er. are specific in 

that they relate to a particular individual or crime. and they deal 11 ith current or past bad 

behavior. The telephony metadata program. in contrast. is broad. non-specific. not tied to 

any particular crime. and fom ard-looking. with the aim of anticipating future acts. 

Remarkably. FISC itself has recognized the illegality of the program. In March 2009 

Judge Reggie Walton \\Tote: 

Because the collection would result in NSA collecting call detail records 

pertaining to [REDACTED] of telephone communications, including call detail 

records pertaining to communications of United States (U.S.) persons located 

within the U.S. who are not the subject of any FBI investigation and whose 

metadata could not otherwise be legally captured in bulk, the government 

proposed stringent minimization procedures that strictly controlled the 

acquisition, accessing, dissemination, and retention of these records by the NSA 

and FBI. 

9 
95 

By acknowledging that the metadata "could not otherwise be legally captured in bulk", 

Walton recognized that the program violated the statute. Nevertheless, the court had 

approved it based, in part, upon "the government's explanation, under oath, of how the 

collection of and access to such data are necessary to analytical methods that are vital to 

the national security of the United States." So, the government had promised that it was 

important for U.S. national security-therefore, FISC agreed to allow the program to 

continue. 

Third, and finally, as a statutory matter, all of the information at issue in the bulk 

collection program is already provided for in subchapter three, relating to pen registers 

and trap and trace equipment. Using subchapter four, the government appears to be 

doing an end run around the restrictions that would otherwise apply. 

III. CONCLUDING REMARKS 

In conclusion, I would just like to underscore that the system is badly broken. The NSA 

is engaging in activities that are both illegal and unconstitutional. Congress has been 

given an opportunity to fix the problem, and to do so in a way that recognizes the benefits 

of new technologies, the real threats that the nation faces, and the demands of the U.S. 

Constitution. I would be happy to discuss possible ways in which this could be done in 

more detail. Thank you for your time. 

10 
96 

Remarks Prepared for the Oct. 2, 2013 Hearing on 

Continued Oversight of the Foreign Intelligence Surveillance Act 

Senate Committee on the Judiciary 

Professor Laura K. Donohue 

Georgetown Law 

I. INTRODUCTION ••••••••••••••••••••••••••••••.••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• ! 

II. ORIGINS OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT ........................................ 2 

A. INITIAL REVELATIONS ................................................................................................................................ 2 

B. NSA DOMESTIC SURVEILLANCE ................................................................................................................. 4 

1. Project MINARET.......... ................. .. ..................................... ...6 

2. Operation SHAMROCK ..... ... ............ .. .............................. 6 

C. BROADER CONTEXT ................................................................................................................................... 8 

III. CONTOURS OF FISA ............................................................................................................................ 12 

A. ACQUISITION OF INFORMATION TIED TO ENTITY TARGETED PRIOR TO COLLECTION ................................ 13 

B. PROBABLE CAUSE AND SATISFACTION OF CRIMINAL STANDARDS PRIOR TO COLLECTION ....................... 13 

C. MINIMIZATION PROCEDURES FOR ACQUlSlTION AND RETENTION ............................................................. 17 

D. INTRODUCTION OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT .................................................. 17 

E. BROAD CONGRESSIONAL SUPPORT ........................................................................................................... 18 

F. SUBSEQUENT AMENDMENT: TRADlTIONAL AND NON-TRADITIONAL FISA .............................................. 18 

I. Traditional FJSA: Physical Search, Pen/Trap ... .. ... ... ... ............... .. ...... 19 

2. Traditional F1SA: Business Records, Tangible Goods, and Section 215... .......................... .. ... 21 

3. Modern FJSA and Section 702.... ....................... ..................... .. ......................... 25 

IV. NSA TELEPHONY METADATA COLLECTION UNDER §215 ...................................................... 30 

V. BULK COLLECTION RUNS CONTRARY TO FISA'S GENERAL APPROACH ......................... 33 

A. PARTICULARIZATION IN PLACE OF BROAD SURVEILLANCE ...................................................................... 34 

!. Wholesale Collection of Information.. . ................... ............... . .. ... 34 

2. Prior Targeting to JustifY Collection of Data.... .................... . ....... 35 

3. Heightened Protections for U.S. Persons ..... 3 5 

B. ROLE OF THE FOREIGN INTELLIGENCE COURT .......................................................................................... 36 

I. Reliance on NSA to Ascertain Reasonable, Articulab/e Suspicion. .. ...... 36 

2. Detailed Legal Reasoning and Creation of Precedent.. .................. .. .. 45 

3. Judicial Design.. .. ............................................................. 46 

VI. BULK COLLECTION VIOLATES FISA'S STATUTORY PROVISIONS ..................................... 53 

A. "RELEVANT TO AN AuTHORIZED INVESTIGATION".................. .. ..................................................... 53 

I. Relevance Standard. ............................... . .................... ................... .. ...... 54 

2. Connection to "an Authorized Investigation"............ ..................... . ... 55 

B. SUBPOENA DUCES TECUM.......................... .................................... ........ .. ...................................... 59 

I. Not for Fishing Expeditions................................. . ........................................... 61 

2. Specificily. .. .......... 61 

3. Past Crimes . ............................. . ... ......... ...... ...... .. ..... .. .................................. 62 

4. March 2009 FISC Opinion.. .. .. . . ................. ................. .... ........... .. ....... 62 

C. EVISCERATION OF PEN/TRAP PROVISJONS ................... ......................... .. ........................... 63 

D. POTENTIAL VJOLA TION OF OTHER PROVISIONS OF CRIMINAL LAW .......................................................... 63 

VII. CONSTITUTIONAL CONSIDERATIONS ........................................................................................ 65 

A. THE FOURTH AMENDMENT PROHIBITION ON GENERAL WARRANTS ......................................................... 65 

B. THIRDPARTYDATA ................................................................................................................................. 70 

VIII. CONCLUDING REMARKS ............................................................................................................... 74 

I. INTRODUCTION 

Congress introduced the 1978 Foreign Intelligence Surveillance Act to make use of new 

technologies and to enable the intelligence community to obtain information vital to U.S. 
97 

national security, while preventing the National Security Agency and other federal 

intelligence-gathering entities from engaging in broad domestic surveillance. The 

legislature sought to prevent a recurrence of the abuses of the 1960s and 1970s that 

accompanied the Cold War and the rapid expansion in communications technologies. 

Congress purposefully circumscribed the NSA's authorities by limiting them to 

foreign intelligence gathering. It required that the target be a foreign power or an agent 

thereof, insisted that such claims be supported by probable cause, and heightened the 

protections afforded to the domestic collection of U.S. citizens' information. Initially 

focused on electronic surveillance, the Foreign Intelligence Surveillance Act gradually 

expanded over time to incorporate physical searches, pen registers and trap and trace, and 

business records and tangible goods. The addition of these provisions took place within 

the same general framing that Congress had adopted in enacting the legislation in the first 

place. 

Documents related to the recently revealed telephony metadata program, conducted 

under the auspices of the Foreign Intelligence Act and its subsequent amendments, 

suggests that the National Security Agency is now interpreting the statutory provisions in 

a manner directly contrary to Congress' intent. It reflects neither the particularization 

required by Congress prior to acquisition of information, nor the role anticipated by 

Congress for the Foreign Intelligence Surveillance Court and Court of Review. 

The specific legal reasoning offered in defense of the program, moreover, violates the 

statutory language in three important ways: (a) it contradicts the requirement the records 

sought "are relevant to an authorized investigation"; (b) it violates the statutory provision 

that requires that information sought could be obtained via subpoena duces tecum; and 

(c) it bypasses the statutory framing for pen registers and trap and trace devices. In 

addition, the program raises serious constitutional concerns. The FISC order amounts to a 

general warrant, which the Fourth Amendment is designed to preclude. Efforts by the 

government to save the program on grounds of third party doctrine are similarly 

unpersuasive in light of the unique circumstances of Smith v. Maryland, new 

technologies, and changed circumstances. An end to the telephony metadata program and 

FISA reform are necessary to bring surveillance operations and emerging technologies 

within the bounds of the Constitution. 

II. ORIGINS OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 

In the early 1970s, a series of news stories broke detailing the existence of covert 

domestic surveillance programs directed at U.S. citizens. These revelations Jed, inter 

alia, to the creation of the Senate Select Committee to Study Governmental Operations 

with Respect to Intelligence Activities. Chaired by Senator Frank Church, the Committee 

uncovered a range of deeply concerning domestic surveillance operations, prompting 

Congress to pass the Foreign Intelligence Surveillance Act. 

A. Initial Revelations 

One of the first public indications that the executive branch was engaging in broad 

domestic intelligence gathering came in January 1970. Writing in the Washington 

Monthly, Christopher Pyle charged that the Army was engaged in the surveillance of 

American citizens.' The following year, an organization calling itself the Citizens' 

Commission to Investigate the FBI broke into a two-person FBI office in Media, 

Pennsylvania, stealing I 000 classified documents, all of which WIN Magazine 

1 Christopher H. Pyle, CONUS Intelligence: The Army Watches Civilian Politics, WASHINGTON MoNTHLY, 

Jan. I, 1970, at 4, reproduced in 91 CONG. REC. 2227-2231 (1970). 

2 
98 

subsequently published. 2 A code word on these documents, "COINTELPRO", (for 

"counterintelligence program"), prompted Carl Stem, a reporter for NBC, to initiate a 

Freedom of Information Act lawsuit.3 On December 6, 1973, Stem filed a story that ran 

on the NBC Nightly News, detailing extensive domestic surveillance and disruption 

undertaken by the FBI for national security purposes.4 

Following these initial disclosures, in 1974 Seymour M. Hersh, an investigative 

reporter, published a detailed report in the New York Times that immediately captured 

public attention. The article stated that during the Nixon Administration the Central 

Intelligence Agency ("CIA") had conducted a massive intelligence operation "against the 

antiwar movement and other dissident groups in the United States."5 Intelligence files on 

more than 10,000 Americans including members of Congress had been maintained by 

a special unit that reported directly to the Director of Central Intelligence.6 The CIA had 

also engaged in dozens of other illegal operations since the 1950s, such as "break-ins, 

wiretapping, and the surreptitious inspection of mail."7 One official reported that the 

requirement to keep files on U.S. citizens stemmed, in part, from the so-called Huston 

plan. 8 Agency officials claimed at the time that although directed at U.S. citizens, 

everything they had done had been under the auspices of foreign intelligence gathering. 9 

These new revelations came as quite a surprise, not least because the 1947 National 

Security Act forbade the Director of the Central Intelligence Agency from having any 

"police, subpoena, law enforcement powers or internal security functions." 10 The report, 

moreover, came on the heels of a Senate Armed Services Committee report condemning 

the Pentagon for spying on the White House National Security Council. 

These public allegations, related to intelligence agencies' impropriety, illegal 

activities, and abuses of authority, prompted both Houses of Congress to create 

temporary committees to investigate the accusations: the House Select Committee on 

Intelligence, and the Senate Select Committee to Study Governmental Operations with 

Respect to Intelligence Activities. 11 

The latter, Chaired by Senator Frank F. Church (D-ID), with the assistance of Senator 

John G. Tower (R-TX) as Vice Chairman, was a carefully-constructed, bipartisan 

initiative. Its membership included eleven Senators, six drawn from the majority party 

and five from the minority party. 12 The Republican leadership in the Senate chose 

1 The Complete Collection of Political Documents Ripped-off from the FBI Office in Media PA, March 8, 

1971, WIN MAG., Mar. 1972. Note that the original FBI files are now located at the Swarthmore College 

Peace Collection, Swarthmore College, Swarthmore, Pennsylvania. 3 Memorandum from C.D. Brennan to W.C. Sullivan (Apr. 27, 1971); Letter from FBI headquarters to All 

SAC's (Apr. 28, 1971 ), cited in SUPPLEMENTARY DETAILED STAFF REPORTS ON INTELLIGENCE ACTIVITIES AND 

THE RIGHTS OF AMERICANS, BOOK III: FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNME~TAL 

OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES, S. REP No. 94-755, at 3 (1976) available at 

http://archive.org/stream/finalreportofsel03unit#pagc/n3/mode/2up. 

4 91 CONG. REC. 26,329 (1970). 5 Seymour M. Hersh, Huge C.I.A. Operation Reported in U.S. Against Antiwar Forces, Other Dissidents in 

Nixon Years, N.Y. TIMES, Dec. 22, 1974, at I. 

6 Id. 

1 !d. 

'/d. at 26. Named for Tom Charles Huston, the Presidential aide who conceived the project, the plan called 

for the usc of burglaries and wiretapping to counter antiwar activities and student turmoil ostensibly 

"fomented" by black extremists. President Nixon and senior officials claimed that it had never been 

implemented. 

9 !d. at 26. 10 National Security Act of 1947 § 104A(d)(l) (2013). 11 H.R. Res. 138, 94th Con g. (1975); replaced and expanded by H.R. Res. 591, 94th Cong. (1975); S. Res. 

2!, 94th Cong. (1975). 12 Intelligence Activities: Hearing on S. Res. 21 Before the Select Comm. to Study Governmental Operations 

with Respect to Intelligence Activities of the United States, 94th Con g. ii { 1975). 
99 

legislators representing a range of views within their party, as did the Democratic 

leadership. 13 Further thought was given to diversity of experience, incorporating both 

senior members of the Senate, as well as some of the most junior members-including 

one Senator, who had only begun his service a few weeks prior to the formation of the 

committee. 14 The Senate overwhelmingly supported the establishment of the Select 

Committee, endorsing its creation by a vote of 82-4. 15 

The Senate directed the committee to do two things: first, to investigate "illegal, 

improper, or unethical activities" in which the intelligence agencies engaged; and, 

second, to determine the "need for specific legislative authority to govern" the NSA and 

other agencies. 16 The Church Committee subsequently took testimony from hundreds of 

people, inside and outside of government, in public and private hearings. The NSA, FBI, 

CIA, IRS, Post Office, and other federal agencies submitted documents. In 1975 and 

1976 the Committee issued seven reports and 6 supplemental volumes, classifying 

another 60 reports for future release. 17 

The committee found that broad domestic surveillance programs, conducted under 

the guise of foreign intelligence collection, had undermined the privacy rights of U.S. 

citizens. 18 The NSA figured largely in these concerns. 

B. NSA Domestic Surveillance 

Although the NSA maintained a definition of foreign intelligence that focused on threats 

external to the United States, a key contributor to the agency's decision to intercept 

Americans' communications was the question of whether the definition of foreign 

communications prevented the acquisition, or merely the analysis, of information not 

related to foreign intelligence. The NSA adopted-and the Church committee rejectedthe latter approach. 

In October 1952, President Truman issued a classified memo that laid out the future 

of U.S. signals intelligence and created the NSA. 19 Truman's aim was to (a) strengthen 

U.S. signals intelligence capabilities, (b) support the country's ability to wage war, and 

(c) generate information central to the conduct of foreign affairs.20 The NSA's mission, 

accordingly, was to obtain foreign intelligence from foreign electrical communications.21 

From the beginning, the agency understood foreign intelligence to involve the 

interception of communications wholly or partly outside the United States and not 

13 Interviews with Senator Walter Mondale and Senator Gary Hart, Washington, D.C. (Sept. 23, 2013). 

l4 ld. 

15 121 CONG.REC.I416-34(1975). 16 S. Res. 21, 94th Cong. (1975). 

'

7 Interview with Senator Gary Hart, Washington, D.C. (Sept. 24, 2013). Since 1992, another 50,000 pages 

of the records have been declassified and made publicly available at the National Archives. History Matters, 

Rockefeller Commission Report, available at hnpf~­

!11a!lrn;.a:mimdJivo'ax1la11s-~_churdJ_IqXJ1S_nxkccmm.h1m; Press Release, National Security Agency Central 

Security Service, The National Security Agency Releases Over 50,000 Pages of Declassified Documents 

(June 8, 2011), hnpf/w\\wJNLgov;jl.Jblic_infuj:ress_nxm2011/50XIJ_dxla;si&d cl:x:sS1lml.. 

"Intelligence Activities: Hearing on S. Res. 21 Before the Select Co-mm. to Study Governmental Operations 

with Respect to Intelligence Activities of the United States, 94'' Cong. vol. 1-7 (1975). 

"Presidential Memorandum, Oct. 29, 1952, amending National Security Council Intelligence Directive No. 

9, Mar. 10, 1950 (National Archives and Records Administration, RG 59, Records of the Department of 

State, Records of the Executive Secretariat, NSC Files: Lot 66 D 195). 20 5lntelligence Activities: Hearings on S. Res. 21 Before the Select Comm. to Study Governmental 

Operations with Respect to Intelligence Activities of the United States, 94" Cong. 9 (1975) (hereinafter 

Church Committee Report, Vol. 5). For an informative discussion ofMI-8 and the NSA's predecessor 

agencies, see HOUSE COMM. ON GOV'T OPERATIONS, INTERCEPTION OF INTERNATIONAL TELECOMMUNICATIONS 

BY TilE NATIONAL SECURITY AGENCY (DRAFT REPORT) 1-12, available at 

http://www.maryferrell.org/mffweb/archive/viewer/show Doc.do? docld= 145022&rclPageld= 14. 

" ld. at 6 (statement of General Lew Allen, Jr., Director, National Security Agency). 

4 
100 

targeted at U.S. persons. Neither the Presidential directive of 1952, nor the National 

Security Council Intelligence Directive ("NSCID") No. 6, which authorized the CIA to 

engage in Foreign Wireless and Radio Monitoring, defined the term "foreign 

communications." 22 

NSCID 9, however, entitled Communications Intelligence, defined "foreign 

communications" as "all communications and related materials ... of the government 

and/or their nationals or of any military, air, or naval force, faction, party, department, 

agency, or bureau of a foreign country, or of any person or persons acting or purporting 

to act therefor." It included "all other telecommunications and related material of, to, and 

from a foreign country which may contain information of military, political, scientific or 

economic value."23 "Foreign communications" thus turned upon the nature of the entity 

engaged in communications: i.e., a foreign power, or an individual acting on behalf of a 

foreign power. 

The NSA did not (indeed, could not) discuss NSCID 9 during the Church 

Committee's public hearings. However, the Director of Central Intelligence had issued a 

directive that the NSA did discuss, which employed a definition of foreign 

communications that excluded communications between U.S. citizens or entities. 24 In 

keeping with these understandings, the NSA ostensibly focused on communications 

conducted wholly or partly outside the United States and not targeted at U.S. persons. 

The distinction was drawn, however, at the point of analysis-not the point of 

communication. 

Testifying in 1975 before the Church Committee, NSA Director Lieutenant General 

Lew Allen, Jr. could thus assert that the NSA did not at that time, nor had it (with one 

exception-i.e., individuals whose names were contained on the NSA's watch list) 

"conducted intercept operations for the purpose of obtaining the communications of U.S. 

citizens."25 Whether such communications were incidentally intercepted, however, was 

another matter: "some circuits which are known to carry foreign communications 

necessary for foreign intelligence will also carry personal communications between U.S. 

citizens, one of whom is at a foreign location."26 

Central to Allen's assertion was the understanding that, to constitute foreign 

communications, and to legitimate the collection of information on U.S. citizens, the 

target of the surveillance must be a foreign power, or an agent of a foreign power, and at 

least one party to the communications must be outside the country. 

Importantly, the Senate considered this approach, in light of the broad swathes of 

information obtained about U.S. citizens, to run afoul of the Fourth Amendment. Two 

NSA programs, in particular, generated significant concern. The first, Project MINARET, 

introduced to collect foreign intelligence information, ended up intercepting hundreds of 

U.S. citizens' communications. The second, Operation SHAMROCK, involved the 

large-scale collection of U.S. citizens' communications from Private Companies. 

22 NSCID No.6 (Dec. 12, 1947) (National Archives and Records Administration, RG 59, Records of the 

Department of State, Records of the Executive Secretariat, NSC Files: Lott 66 D 148, Dulles-Jackson-Correa 

Report, Annex 12); see also Church Committee Report, Vol. 5, supra, at 6. 23 NSCID No. 9 (Jul. I, 1948) (National Archives and Records Administration, RG 59, Records of the 

Department of State, Records of the Executive Secretariat, NSC Files: Lot 66 D 195); see also NSCID No.9, 

Mar. 10, 1950, supra. 24 Church Committee Report, Vol. 5, supra, at 9. 

25 !d. 

26 !d. 
101 

1. Project MINARET 

In the late 1960s, the NSA, like the Internal Revenue Service ("IRS"), the FBI, and the 

CIA, constructed a list of U.S. citizens and non-U.S. citizens subject to surveillance. 27 

The program, which operated 1967-1973, started out by narrowly focusing on the 

international communications of U.S. citizens traveling to Cuba. It quickly expanded, 

however, to include individuals (a) involved in civil disturbances, (b) suspected of 

criminal activity, (c) implicated in drug activity, (d) of concern to those tasked with 

Presidential protection, and (e) suspected of involvement in international terrorism?8 

In 1969 the collection of information on individuals included in the watch list became 

known as Project MINARET.29 When details about the program emerged, senators and 

members of the public expressed alarm about the privacy implications. Central to the 

legislators' concern was the potential for such programs to target communications of a 

wholly domestic nature. Senator (later Vice President) Walter Mondale, articulated the 

Committee's disquiet: 

Given another day and another President, another perceived risk and someone 

breathing hot down the neck of the military leader then in charge of the NSA: 

demanding a review based on another watch list, another wide sweep to 

determine whether some of the domestic dissent is really foreign based, my 

concern is whether that pressure could be resisted on the basis of the law or not .. 

. [W]hat we have to deal with is whether this incredibly powerful and impressive 

institution ... could be used by President 'A' in the future to spy upon the 

American people ... [W]e need to ... very carefully define the law, spell it out so 

that it is clear what [the Director of the NSA's authority is and is not]. 30 

Senator Mondale asked NSA Director General Lew Allen whether he would object to a 

new law clarifying that the NSA did not have the authority to collect domestic 

information on U.S. citizens. Allen indicated that he did not object.31 FISA became the 

instrument designed to limit the NSA's collection of information on U.S. citizens. 

2. Operation SHAMROCK 

During the Senate hearings, much concern was expressed about whether to make public a 

second, highly classified, large-scale surveillance program run by the NSA. 32 The 

committee decided to discuss the program in open session on the grounds that it was both 

illegal and violated the Fourth Amendment.33 

Operation SHAMROCK was the cover name given to a program in which the 

government had convinced three major telegraph companies (RCA Global, ITT World 

Communications, and Western Union International) to forward international telegraphic 

traffic to the Department of Defense. 34 For nearly thirty years, the NSA and its 

27 Church Committee Report, Vol. 5, supra, at 3. 28 /d. at 10-11. 29 !d. at 30. 30 Id. at 36. 31 !d. at 36. 32 Church Committee Report, Vol. 5, supra, at 48-57, 60-61, 63; see also HOUSE COMM. ON Gov'T 

OPERATIONS, INTERCEPTION OF INTERNATIONAL TELECOMMUNICATIONS BY THE NATIONAL SECURITY AGENCY 

(DRAFT REPORT) 2-6, available at 

http://www .ma_rvferre ll_,_;1rg/m fTw~i)/ arc hi veiviewe r/sh ow Doc. do? doc! d= !45022&re I Pageld=4 (discussing 

pressures on the Church Committee from the House side). 33 Church Committee Report, Vol. 5, supra, at 57 (statement of Senator Frank Church, Chairman, Select 

Comm. to Study Governmental Operations with Respect to Intelligence Activities of the United States of the 

United States Senate). 34 !d. at 57-58. 

6 
102 

predecessors received copies of most international telegrams that had originated in, or 

been forwarded through, the United States.35 

Operation SHAMROCK stemmed from wartime measures, in which companies 

turned messages related to foreign intelligence targets over to military intelligence. In 

194 7, the Department of Defense negotiated the continuation of the program in return for 

protecting the companies from criminal liability and public exposure.36 

Like Project MINARET, the scope of the program gradually expanded. Initially, the 

program focused on foreign targets. Eventually, however, as new technologies became 

available, the NSA began extracting U.S. citizens' communications. 37 It selected 

approximately 150,000 messages per month for further analysis, distributing some 

messages to other agencies. 38 

Senators expressed strong concern at the resulting privacy violations, inviting the 

Attorney General before the Select Committee to discuss "the Fourth Amendment of the 

constitution and its application to the 201

h century problems of intelligence and 

surveillance."39 Senator Frank Church explained: 

In the case of the NSA, which is of particular concern to us today, the rapid 

development of technology in the area of electronic surveillance has seriously 

aggravated present ambiguities in the law. The broad sweep of communications 

interception by NSA takes us far beyond the previous fourth amendment 

controversies where particular individuals and specific telephone lines were the 

target. 40 

General Lew Allen sought to reassure the committee that although some circuits carried 

personal communications, the interception was "conducted in such a manner as to 

minimize the unwanted messages." Nevertheless, the agency might obtain many 

unwanted communications; it thus undertook procedures to process, sort, and analyze the 

relevant data. "The analysis and reporting is accomplished only for those messages which 

meet specified conditions and requirements for foreign intelligence."41 Elaborating 

further, Allen noted, "[t]he use of lists of words, including individual names, subjects, 

locations, etc., has long been one of the methods used to sort out information of foreign 

intelligence value from that which is not of interest."42 

The question that confronted Congress was how to limit the NSA's ability to acquire 

broad swathes of information up front, in the process obtaining access to private 

communications of individuals with no connection to foreign intelligence concerns. 

Congress would have to find a way to control new, sophisticated technologies, to allow 

intelligence agencies to perform their legitimate foreign intelligence activities, without 

also allowing them to invade U.S. citizens' privacy by allowing them access to 

information unrelated to national security. 43 

35 !d. at 58. 36 /d. 37 !d. at 58-59. 38 !d. at 60. 39 !d. at 65. 

40 !d. 

41 Church Committee Report, Vol. 5, supra, at 19. Fonner CIA Director William E. Colby provided similar 

testimony before the Pike Committee August 6, 1975: "On some occasions, (the interception of U.S. 

citizens' communications) cannot be separated from the traffic that is being monitored. It is technologically 

impossible to separate them." U.S. Intelligence Agencies and Activities: Intelligence Costs and Fiscal 

Procedures: Hearings Before the Select Committee on Intelligence U.S. House of Representatives, 94th 

Cong. 241 (statement of William E. Colby, acting Director of CIA). 42 Church Committee Report. Vol. 5, supra. at 20. 43 !d. 

7 
103 

In the absence of any governing statute, Attorney General Edward H. Levi's 

approach had been to authorize the requested surveillance only where a clear nexus 

existed between the target and a foreign power. 44 The Attorney General sought to 

distinguish the process from the British Crown's use of writs of assistance, in the shadow 

of which James Madison had drafted the Fourth Amendment.45 The Founders' objection 

to such instruments was simple: were the government to be granted the authority to 

break into and to search individuals' homes without cause, the private affairs of every 

person would be subject to inspection. 46 In contrast, Levi argued, the exercise of 

electronic wiretaps for foreign intelligence gathering fell subject to Attorney General 

review. Nevertheless, he recognized the need for new laws to address the ambiguity that 

attended the use of modern technologies. The Senators agreed. 47 

C. Broader Context 

The NSA was not the only federal entity making use of new technologies to collect 

significant amounts of information on U.S. citizens. The FBI, CIA, IRS, U.S. Army, and 

other federal entities similarly engaged in broad, domestic intelligence-gathering 

operations. Details relating to many of these programs, such as the FBI's COINTELPRO 

and the CIA's Operation CHAOS, were uncovered by both the exhaustive investigations 

of Senate Select Committee and other entities stood up to consider the range and extent 

of programs underway. 48 Both statutory violations and constitutional concerns 

accompanied these inquiries. 

In 1970, for instance, Senator Sam Ervin (D-NC), began investigating the public 

allegations. After a year of making minimal progress in the face of misleading 

statements from the Nixon Administration, claims of inherent Executive power, and the 

refusal to disclose information that might damage national security, in 1971 Senator 

Ervin called for public hearings to consider "the dangers the Army's program presents to 

the principles of the Constitution."49 

In 1975 President Ford issued an executive order establishing the President's 

Commission on CIA Activities Within the United States ("Rockefeller Commission").50 

Ford appointed Vice President Nelson Rockefeller as Chair.51 The public charges to 

which the Rockefeller Commission responded included large-scale domestic surveillance 

of U.S. citizens; retaining dossiers on U.S. citizens; and aiming such collection efforts at 

individuals who disagreed with government policies. 52 The Commission's aim was 

further supplemented by allegations that for the past twenty years the CIA had (a) 

intercepted and opened personal mail in the United States; (b) infiltrated domestic 

dissident groups and intervened in domestic politics; (c) engaged in illegal wiretaps and 

break-ins; and (d) improperly assisted other government agencies. 53 

Like the Senate Select Committee, a key question confronting the Rockefeller 

Commission was how to define the term "foreign intelligence"-a crucial step in 

protecting Americans' right to privacy. Accordingly, in its first recommendation, the 

"'!d. at 71. 45 !d. at 71-72. 40 !d. at 72. 

"See. e.g., id. at 64-65, 84, 125. 

"See, e.g.. Church Committee Report, Vol. 5, supra, at 6. 49 91 CONG. REC. 26,329. 50 Exec. Order No. 11,828, 3 C.F.R. 933 (1975). 51 Commission on CIA Activities Within the United States: Announcement of Appointment of Chairman and 

Memhers, ll WEEKLY COMP. PRES. Doc. 25 (Jan. 5, 197 5). 52 REPORT TO THE PRESIDENT BY THE COMMISSION ON CIA ACTIVITIES WITHIN THE UNITED STATES 9 (June 

1975). 

ll !d. 
104 

Rockefeller Commission advised that Section 403 of the 194 7 National Security Act be 

amended to make it explicit that the CIA's activities solely related to "foreign 

intelligence."54 Any involvement of U.S. citizens could only be incidental to foreign 

intelligence collection. 55 

The Commission reinforced the strict separation between foreign targets and U.S. 

persons through its second recommendation: that the President, via Executive Order, 

"prohibit the CIA from the collection of information about the domestic activities of 

United States citizens (whether by overt or covert means), the evaluation, correlation, and 

dissemination of analyses or reports about such activities, and the storage of such 

information." 56 

The House Select Intelligence Committee, in turn, created on February 19, 1975 

(known as the Nedzi Committee, after its chair, Lucien Nedzi, Chairman of the Armed 

Services Committee at the time), was replaced five months later by a committee headed 

by Representative Otis Pike (D-NY).57 The Pike Committee focused on a range of 

intelligence agency intelligence gathering programs-including those of the National 

Security Agency. 58 Public hearings on the agency's operations were held in October 

1975 and February and March 1976.59 Its draft report complained of the tension between 

Congress and the Executive branch, noting the "intense Executive branch efforts" to have 

the NSA hearings curtailed or postponed-both in the Senate and the House.60 

Like the Church Committee, the Pike Committee expressed concern about 

SHAMROCK and MINARET, noting that the former resulted in the NSA maintaining 

files on approximately 75,000 American Citizens between 1952 and 1974: 

Persons included in these files included civil rights leaders, antiwar activists, and 

Members of Congress. For at least 13 years, CIA employees were given 

unrestricted access to these files, and one or more worked full time retrieving 

information that presumably was contributed to the CIA's domestic intelligence 

program- Operation CHAOS- which existed from 1967 to 1974.61 

For the Pike Committee, these programs violated both Section 605 of the 

Communications Act and the Fourth Amendment. 62 

The committee expressed particular concern about the NSA's "vacuum cleaner" 

approach to foreign intelligence gathering.63 The committee noted that some 24 million 

telegrams and 50 million telex (teletype) messages entered, left, and transited the United 

States each year; millions of additional messages traveled over leased lines, "Including 

millions of computer data transmissions electronically entering and leaving the 

54 !d. at 12. 55 !d. 

56 !d. at 15. 57 H.R. Res. 138, 94th Cong. (Feb. 19, 1975) (introduced Jan. 16, 1975 and passed Feb. 19, 1975 by a vote of 

286-120). 

58 See, e.g., U.S. Intelligence Agencies and Activities; Intelligence Costs and Fiscal Procedures: Hearings 

Before the Select Comm. on Intelligence, 94th Cong. Pt. I (1975), printed for the Select Comm. on 

Intelligence, 58-920 (1975); U.S. Intelligence Agencies and Activities: Domestic Intelligence Programs: 

Hearings Before the Select Comm. on Intelligence, 94th Cong., Pt. 3 (1975), printed forthe Select Committee 

on Intelligence, 53-165 (1976); U.S. Intelligence Agencies and Activities: Committee ProceedingsProceedings of the Select Committee on Intelligence, 94th Cong. Pt. 4 (1975), printed for the Select Comm. 

on Intelligence, 63-746 (1976). 59 HOUSE COMM. ON GOV'T OPERATIONS, INTERCEPTION OF INTERNATIONAL TELECOMMUNICATIONS BY THE 

NATIONAL SECURITY AGENCY (DRAFT REPORT) 2, available at 

http://wv.w.maryferrell.org/mffweb/archive/viewer/showDoc.do?docld=l45022&re]Pageld=4. 

Wid 

61 !d. at 14. 62 !d. at 15-17. 63 /d.at18. 

9 
105 

country"-and international telephone calls presented yet further potential sources of 

intelligence. 64 

Coming on the heels of the Pentagon Papers (demonstrating that the Johnson 

Administration had systematically lied to the public and to Congress), the Watergate 

scandal (in which the Nixon Administration orchestrated a June 1972 break-in at the 

Democratic National Committee Headquarters), and President Nixon's resignation on 

August 9, 1974, the existence of programs investigated by the Church Committee, the 

Rockefeller Commission, the Pike Committee, and others fed into and deepened the 

erosion of public confidence in the executive branch. More specifically, their findings 

undermined citizens' confidence in the intelligence agencies.65 A critical question facing 

Congress was how to rebuild confidence in the system, how to incorporate new 

technologies into the existing infrastructure, and how to empower the intelligence 

agencies to conduct electronic surveillance, while protecting the privacy rights of U.S. 

citizens. 

A timely judicial decision helped to lay the groundwork for Congressional action. In 

1972 the Supreme Court had held that the electronic surveillance of domestic groups, 

even where security issues might be involved, required that the government first obtain a 

warrant. The "inherent vagueness of the domestic security concept", and the significant 

possibility that it could be abused to quash political dissent, underscored the importance 

of the Fourth Amendment--particularly when the government was engaged in spying on 

its own citizens.66 

Justice Powell, writing for the Court, emphasized the limits on the scope of the 

decision: "[T]his case involves only the domestic aspects of national security. We have 

not addressed, and express no opinion as to, the issues which may be involved with 

respect to activities of foreign powers or their agents." 67 Different standards and 

procedures might apply to domestic security surveillance than those required by Title III 

of the Omnibus Crime Control and Safe Streets Act of 1968.68 The Court issued an 

invitation to Congress to pass new laws covering such cases. 69 

Four critical changes followed. First, consistent with the Church Committee's 

recommendations, Congress created a permanent Senate Intelligence Committee. Indeed, 

within a month of the final report, a resolution to this effect was introduced, and on May 

19, 1976 it passed by overwhelming majority, 72-22. 70 The new Senate Select 

Committee on Intelligence ("SSCI") was provided exclusive oversight of the CIA and 

concurrent jurisdiction over the NSA and other elements of the Intelligence Community 

("IC"). The resolution directed that the IC keep the new entity "fully and currently 

informed" of their activities, including all "significant anticipated activities." It was to be 

a "select", rather than a "standing" committee, precisely to allow the Senate majority and 

minority leaders to decide its composition - and to avoid the same in the party caucuses 

preceding each new Congress. The Chair and Vice Chair would not be allowed to serve 

concurrently as Chair or ranking minority member of any major standing committee. 

Of the 15 members selected, no more than 8 would be drawn from the majority party, 

ensuring balance between the parties. In addition, composition would be built to ensure 

cross-representation in related committees: two members had to sit each on 

Appropriations, Armed Services, Foreign Relations, and Judiciary. A limit of eight years 

64 /d. 

65 124 CONG. REC. 36,415 (1978). 66 United States v. U.S. District Court, 407 U.S. 297 (1972). 67 I d. at 321-322. 

"!d. at 322. 69 Jd. at323. 70 S. Res. 400, 94th Cong. (1976). 

10 
106 

was placed on committee membership, to avoid intelligence agency capture. Notably, 

five of the first 15 members (Walter Huddleston (D-KY), Gary Hart (D-CO), Robert 

Morgan (D-NC), Barry Goldwater (R-AZ), and Howard Baker (R-TN), had served as 

members of the Church Committee-while 14 members of SSCI's staff had served as 

staff members to the same, including William Miller, the staff director for both the 

Church Committee and the newly-minted SSCI. 71 

Second, the President issued an Executive Order, "to improve the quality of 

intelligence needed for national security, to clarify the authority and responsibilities of 

the intelligence departments and agencies, and to establish effective oversight to assure 

compliance with law in the management and direction of intelligence agencies and 

departments of the national government."72 

Executive Order 11905 prohibited the Central Intelligence Agency from engaging in 

electronic surveillance in the United States and banned intelligence agencies from 

engaging in physical surveillance, electronic surveillance, unconsented physical searches, 

mail opening, or examining federal tax returns except as consistent with procedures 

approved by the Attorney General or in accordance with applicable statutes and 

regulations. 73 It prohibited the infiltration of organizations for the purpose of reporting 

on their activities, unless the organization was primarily composed of Non-US persons 

and reasonably believed to be acting on behalf of a foreign power. 74 Importantly, the 

order prevented any collection of information about U.S. persons' domestic activities 

absent situations with clear foreign intelligence or counterintelligence component. 75 

Despite the provisions contained in the Executive Order, Congress considered 

legislative action to be crucial to reigning in the intelligence agencies. Resultantly, as a 

third outcome, Congress re-wrote the National Security Act to require a finding and 

notification for covert action. 

Fourth, and most germane to the Judiciary Committee hearing today, Congress 

passed the Foreign Intelligence Surveillance Act. The aim was to empower the 

intelligence agencies to collect information necessary to protect U.S. national security, 

while simultaneously preventing agencies from using foreign intelligence gathering as an 

71 Discussion with William Miller, Washington, D.C. (Sept. 24, 2013). For discussion of the history of the 

founding of this comminee and its subsequent development, see LEGISLATIVE OVERSIGHT OF INTELLIGENCE 

ACTIVITIES: THE U.S. EXPERJENCE, Report, Prepared by the Select Comm. on Intelligence of the United States 

Senate, 1 03'd Cong. (1994). See also FRANK J. SMIST, CONGRESS OVERSEES THE UNITED STATES 

INTELLIGENCE COMMUNITY, 1947-1989 (1990); L. BRITT SNIDER, THE AGENCY & THE HILL: CIA's 

RELA T!ONSHIP WITH CONGRESS, 1946-2004, at 51-91 (2008). Fallowing the rather dismal mood that marked 

the Pike Committee's operations, the House Permanent Select committee on Intelligence was not founded 

until July 17, 1977. At that point, House Resolution 658 passed 227-171, creating the Permanent Select 

Committee on Intelligence (HPSCI). The structure of both committees remained relatively constant until 

2004. The National Commission on Terrorist Attacks upon the United States issued its report in July 2004, 

criticizing the system of congressional oversight of intelligence agencies as "dysfunctional" and 

recommending either a joint committee on intelligence (similar to the Joint Atomic Energy Committee), with 

authority both the authorize and appropriate, smaller committees, and the elimination of term limits. U.S. 

NA T!ONAL COMMISSION DN TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT: 

FINAL REPORT 420-21 (2004). (NB: the first proposal to create a joint committee on intelligence was 

actually made in 1948. See H. Con. Res. 186, 80th Cong. (1948) (introduced by Rep. Devitt). In 2004, the 

Senate eliminated the eight-year term limits, elevated the committee to category A (Senators are generally 

only able to serve on up to two "A" Committees), created an Oversight Subcommittee, and created an 

Intelligence Subcommittee in the Appropriations Committee. S. Res. 445, I OS'h Con g. (2004). 72 Exec. Order No. 11905, 41 Fed. Reg. 7703 (Feb. 18, 1976). This order was subsequently 

alteredJstrengthened by Exec. Order No. 12036, 43 Fed. Reg. 3674 (Jan. 24, 1978) and replaced in part by 

Exec. Order No. 12333,46 Fed. Reg. 59941 (Dec. 4, 1981). 73 Exec. Order No. 11905, § 5(b)(l )-(5), 41 Fed. Reg. 7703 (Feb. 18, 1976). 74 !d.§ 5(b)(6). 

75 Jd. § 5(b)(7). 

11 
107 

excuse for engaging in domestic surveillance of U.S. citizens. The process began with 

the Foreign Intelligence Surveillance Act of 1976, the first bill introduced into Congress, 

and supported by the President and Attorney General, that would require judicial 

warrants in foreign intelligence cases.76 Its successor bill, S.l566, became the Foreign 

Intelligence Surveillance Act of 1978. 77 

Ill. CONTOURS OF FISA 

From the beginning, Congressional members made it clear that the legislation was 

designed to prevent precisely the types of broad surveillance programs and incursions 

into privacy represented by Project MINARET, Operation SHAMROCK, 

COINTELPRO, Operation CHAOS, and other intelligence-gathering initiatives that had 

come to light. 

During consideration of the Conference Report on S. 1566, for instance, Senator Ted 

Kennedy (D-MA) noted, "The abuses of recent history sanctioned in the name of national 

security highlighted the need for this legislation."78 The debate represented the "final 

chapter in the ongoing I 0-year debate to regulate foreign intelligence electronic 

surveillance."79 With the passage of FISA, the Senate would "at long last place foreign 

intelligence electronic surveillance under the rule of law."80 Senator Birch Bayh, Jr. (DIN) echoed Kennedy's sentiments, "This bill, for the first time in history, protects the 

rights of individuals from government activities in the foreign intelligence area." 81 

Senator Charles Mathais (R-MD) noted that enactment of the legislation would be a 

milestone, ensuring "that electronic surveillance in foreign intelligence cases will be 

conducted in conformity with the principles set forth in the fourth amendment."82 

Congress purposefully circumscribed the NSA's authorities in the Foreign 

Intelligence Surveillance Act by adopting four key protections. First, any information 

obtained from an electronic intercept had to be tied to a specific person or entity, 

identified as a foreign power or an agent thereof, prior to the collection of the 

information. Second, the government had to demonstrate probable cause that the target, 

about whom information was to be collected, was a foreign power or an agent thereof. 

For U.S. persons, such probable cause could not be established solely on the basis of 

otherwise protected First Amendment activities, thus providing American citizens with a 

higher level of protection. Third, Congress adopted minimization procedures to restrict 

the type of information that could be obtained and retained. Fourth, FISA made 

provision for a Foreign Intelligence Surveillance Court ("FISC") to oversee the process. 

Designed to introduce a neutral, disinterested magistrate into the equation, FISC's role 

was, narrowly, to ascertain whether the government had met the appropriate requirements 

for targeting prior to the acquisition of information. All of these limits dealt, specifically, 

with electronic communications. Over time, the statute expanded to apply a similar 

approach to physical searches, the placement of pen registers and trap and trace, and 

business records-as well as tangible goods. 

76 124 CONG. REC. 35,389 ( 1978); see also Foreign Intelligence Surveillance Act of 1976, S. 3197, 94'h Cong 

(1976). 

77 124 CONG. REC. 35,3 89 (1978); see also Foreign Intelligence Surveillance Act of 1978, S. 1566, 95'h Cong 

(1978). 

78 124 CONG. REC. 34,845 (1978). 

79 !d. 

80 !d. 

81 Jd. 

"124 CONG. REC. 35,389 (1978) (statement of Senator Mathais). 

12 
108 

A. Acquisition of Information Tied to Entity Targeted Prior to Collection 

From the outset, Congress sought to limit the amount of information acquired by the NSC 

and others by requiring that the target of surveillance be a foreign power or an agent of a 

foreign power prior to orders being issued to intercept communications. FISA defined a 

"foreign power" as: 

( 1) a foreign government or any component thereof, whether or not recognized 

by the United States; 

(2) a faction of a foreign nation or nations, not substantially composed of United 

States persons; 

(3) an entity that is openly acknowlwedged by a foreign government or 

governments to be directed and controlled by such foreign government or 

governments; 

(4) a group engaged in international terrorism or activities in preparation 

therefor; 

(5) a foreign-based political organizations, not substantially composed of United 

States persons; or 

( 6) an entity that is directed and controlled by a foreign government or 

governments. 83 

Prior to passage of the bill, the Senate defined "foreign power", with regard to 

terrorist groups, to mean a foreign-based entity. The House amendments, in contrast, 

understood "foreign power" to include groups engaged in international terrorism or 

activities in preparation therefor. In the end, the Conference adopted the House 

definition, with the idea that limiting such surveillance solely to foreign-based groups 

would be unnecessarily burdensome.84 

Regardless, however, of whether the target was a foreign power (in the strict sense), 

or a group engaged in international terrorism, in both Houses, throughout the nuanced 

discussion, underlying the definition of "foreign power" was the understanding that prior 

to collection of information, the government would have to establish that the target-in 

relation to whom such information would be obtained-qualified as a foreign power or 

an agent thereof. 85 

In focusing thus on the targets of the communications, Congress rejected the NSA's 

previous (and now current) reading of what constituted a "target" in relation to data 

collection. 86 That is, the information to be obtained, at the moment of acquisition (not in 

the context of subsequent analysis-the position advocated by General Allen during the 

Church Committee hearings and recently resurrected by the NSA), had to relate directly 

to the individual or entity believed to be a foreign power or an agent thereof. 

B. Probable Cause and Satisfaction of Criminal Standards Prior to Collection 

A second protection stemmed from concerns evinced in the Senate about how to 

determine whether the (specific) target was a "foreign power" or "an agent thereof'. 

Uppermost in legislators' minds was the need to provide heightened protections for 

targets of surveillance generally and U.S. citizens in particular. The final bill 

accomplished this in two ways: adoption of a standard of probable cause and, under 

certain circumstances, the requirement of a showing of criminal wrongdoing, in order to 

83 50 U.S.C. §180l(a) (2006 & Supp. V 2011). 84 124 CONG. REC. 33,782 ( 1 978); see also 50 U.S.C. § 1801 (2006 & Supp. V 2011 ). 85 124 CONG. REC. 33,782 (1978). 86 Testimony ofGenera1 Lew Allen, Jr., Church Committee Hearings, Vol. 5, supra, at 16; Statement ofNSA 

Director Bobby R. Inman, before Senate Subcommittee on Intelligence and Human Rights, as reported in the 

Washington Post, July 22, 1977, stating "Let there be no doubt, no U.S. citizen is now targeted by the NSA in 

the United States or abroad." 

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acquire information. These elements underscore the particularity that Congress insisted 

upon prior to foreign intelligence gathering. 

FISA incorporated a standard of probable cause.87 Unlike criminal law, however, in 

which the courts required that probable cause be established that a target had committed, 

was committing, or was about to commit a particular offense, under FISA, the agency 

requesting surveillance would have to demonstrate probable cause that the entity to be 

placed under surveillance was a "foreign power" or "an agent thereof', and that the target 

was likely to use the facilities to be monitored. 88 

Under certain circumstances, FISA also required a criminal showing for an entity to 

be considered a "foreign power". Excluded from this consideration were foreign 

governments. When they are directly involved, no showing of criminal activity is 

required. A foreign government, regardless of whether it is an ally or an enemy of the 

United States, qualifies as a "foreign power."89 

For groups that qualify as foreign powers because they are engaged in international 

terrorism, a criminal activity must be involved. The statute defines "international 

terrorism" to include, inter alia, "activities that .. .involve violent acts or acts dangerous to 

human life that are a violation of the criminal laws of the United States or of any State, or 

that would be a criminal violation if committed within the jurisdiction of the United 

States or any State."90 Acts in which individuals engage that would qualify them for 

inclusion in this category must be acts that would be criminal if committed within the 

United States. 

A group may be a "foreign power" not just when it engages in international terrorism, 

but when engaged in "activities in preparation therefor." This may or may not exceed the 

criminal "attempt" standard, which is broadly understood as requiring a "substantial step" 

towards the completion of an offense.91 Nevertheless, a "group" engaged in preparatory 

activities for international terrorism would satisfy criminal conspiracy standards. 92 

For agents of a foreign power, Congress inserted heightened protections for U.S. 

persons.93 Specifically, FISA defines "agent of a foreign power" as: 

"50 U.S.C. § 1805(a)(2) (2006 & Supp. V 2011). 88 Compare 18 U.S.C. §2518(3)(a) (2006) (requiring, under Title Ill, that the court must find "on the basis of 

the facts submitted by the applicant that ... there is probable cause for belief that an individual is committing, 

has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter.") and 

50 U.S.C. §1805(a)(3) (2006) (requiring, in contrast, that FISC find "on the basis of the facts submitted by 

the applicant," that "there is probable cause to believe that. .. the target of the electronic surveillance is a 

foreign power or an agent of a foreign power: Provided, That no United States person may be considered a 

foreign power or an agent of a foreign power solely upon the basis of activities protected by the first 

amendment to the Constitution of the United States.") Note that for ordinary criminal law, for wire and oral 

communications (e.g., telephone and microphone interceptions), §2516 enumerates predicate offenses that 

qualifY, such as bank fraud (18 U.S.C §1344 (2006)), unlawful possession of a firearm (18 U.S.C. §922(g) 

(2006)), espionage (e.g., 18 U.S.C. §794 (2006)), assassination (e.g., 18 U.S.C §§351, 1751 (2006 & Supp. V 

2011)), sabotage (e.g., 18 U,S.C. §2155 (2006)), and terrorism (e.g., 18 U.S.C. §2332 (2006)). For electronic 

communications (e.g., e-mail), any federal felony may serve as a predicate. 18 U.S.C. §2516(3) (2006). 

"50 U.S.C. §1801 (a)(1)(2006 & Supp. V 2011 ). 90 50 U.S.C. §180l(c) (2006 & Supp. V 2011). 91 Braxton v. United States, 500 U.S. 344,351 (1991). This is not broader, however, than the "overt act" 

requirement contained in some criminal conspiracy statutes. See, e.g., 18 U.S.C. §371 (2006). See also 

discussion in In re [deleted}, Appendix: Comparison ofFISA and Title Ill. 92 18 u.s.c. §371 (2006). 93 A "United States person" is understood under the statute as "a citizen of the United States, an alien 

lawfully admitted for permanent resident (as defined in section 1101 (a)(20) of Title 8), an unincorporated 

association a substantial number of members of which are citizens of the United States or aliens lawfully 

admitted for permanent residence, or a corporation which is incorporated in the United States, but does not 

include a corporation or an association which is a foreign power as defined in subsection (a)(l), (2), or (3) of 

this section." 50 U.S.C. §180l(i) (2006 & Supp. V 2011). 

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(1) any person other than a United States person, who-

(a) acts in the United States as an officer or employee of a foreign power, or as 

a member of a foreign power as defined in subsection (a)(4) of this section; 

(b) acts for or on behalf of_ a foreign power which engages in clandestine 

intelligence activities in the United States contrary to the interests of the 

United States, when the circumstances of such person's presence in the 

United States indicate that such person may engage in such activities in the 

United States, or when such person knowingly aids or abets any person in 

the conduct of such activities or knowingly conspires with any person to 

engage in such activities; or 

(2) any person who -

(a) knowingly engages in clandestine intelligence gathering activities for or on 

behalf of a foreign power, which activities involve or may involve a 

violation of the criminal statutes of the United States; 

(b) pursuant to the direction of an intelligence service or network of a foreign 

power, knowingly engages in any other clandestine intelligence activities 

for or on behalf of such foreign power, which activities involve or are about 

to involve a violation of the criminal statutes of the United States; 

(c) knowingly engages in sabotage or international terrorism, or activities that 

are in preparation therefor, for or on behalf of a foreign power; 

(d) knowingly enters the United States under a false or frauduluent identity for 

or on behalf of a foreign power or, while in the United States, knowingly 

assumes a false or fraudulent identity for or on behalf of a foreing power; or 

(e) knowingly aids or abets any person in the conduct of activities described in 

subparagraph (A), (B), or (C) or knowingly conspires with any person to 

engage in activities described in subparagraph (A), (B), or C). 94 

What these definitions mean is that U.S. persons may only be considered agents of a 

foreign power consistent with the five provisions in the second sections. Taken together, 

three categories emerge for a U.S. person to be considered "an agent of a foreign power": 

either the person (1) engages in espionage and clandestine intelligence activities; (2) 

engages in sabotage and international terrorism (or aids, abets, or conspires to do the 

same); or (3) enters the United States under a false identity. This means that for U.S. 

persons, for the most part, evidence of criminality on a par with criminal law must be 

established prior to the collection of information. 

Looking more closely, the first category requires that the individual knowingly 

engage in espionage and clandestine intelligence activities. Unlike the other two 

categories, there is some variation here with criminal law, specifically with regard to the 

"may involve" standard of category (a). Something less than the showing of probable 

cause required in ordinary criminal cases would satisfy this provision. Thus, for 

counterintelligence operations, something less than probable cause is required for 

evidence of criminality. But for a U.S. person to fall into this category, some evidence of 

criminality is involved. 

For the second category, sabotage and international terrorism, the term "sabotage" is 

defined to mean "activities that involve a violation of chapter 105 of Title 18, or that 

would involve such a violation if committed against the United States."95 "International 

terrorism," in turn, as noted above, is also defined in terms of activities that are criminal 

or would be criminal if the United States were directly involved. To be considered "an 

agent of a foreign power" (and thus subject to surveillance under FISA), a U.S. person 

94 50 USC §1801(b) (2006 & Supp. V 2011). 9

.150 U.S.C. §1801(d) (2006 & Supp. V 2011). 

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must actually be engaged in such activities, or activities in preparation for sabotage or 

international terrorism-or knowingly aiding, abetting, or conspiring with others engaged 

in similar activities.96 

These provisions reflect criminal law standards.97 As the House of Representatives 

explained at the introduction of FISA, 

This standard requires the Government to establish probable cause that the 

prospective target knows both that the person with whom he is conspiring or 

whom he is aiding and abetting is engaged in the described activities as an agent 

of a foreign power and that his own conduct is assisting or furthering such 

activities. The innocent dupe who unwittingly aids a foreign intelligence officer 

cannot be targeted under this provision."98 

The third category, which allows a U.S. person to be considered "an agent of a foreign 

power" for knowingly entering the country under false or fraudulent identity, almost 

always involves a showing of criminality, for the simple fact that it is not possible to 

legally enter the United States without providing proof of one's identity to a government 

official. 99 It is similarly illegal to knowingly assume a false identity on behalf of a 

foreign power under anti-fraud provisions of the U.S. code. 

FISA's deliberate engagement of criminal law provisions and standards has been 

acknowledged by the government in defense of bringing down the wall between 

prosecution and investigation. 

[A] U.S. person may not be an "agent of a foreign power" unless he engages in 

activity that either is, may be, or would be a crime if committed against the 

United States or within U.S. jurisdiction. Although FISA does not always 

require a showing of an imminent crime or "that the elements of a specific 

offense exist," Senate Intelligence Report at 13, it does require the government to 

establish probable cause to believe that an identifiable target is knowingly 

engaged in terrorism, espionage, or clandestine intelligence activities or is 

knowingly entering the country with a false identity or assuming one once inside 

the country on behalf of a foreign power. Thus, while FISA imposes a more 

relaxed criminal probable cause standard than Title III, those differences are not 

extensive as applied to U.S. persons. 100 

The government cannot have it both ways: either U.S. persons have heightened 

protections under FISA-indeed, protections that rise to the level of those provided under 

Title III-or they do not. 

Congress provided yet further protections for U.S. persons. The statute limited the 

breadth of surveillance operations by requiring that probable cause could not be 

established solely on the basis of otherwise protected first amendment activity. 101 This 

was meant to ensure that the executive branch could not place Americans under 

surveillance simply for exercising their First Amendment rights. 

96 50 U.S.C. §180I(b)(2)(E)(2006 & Supp. V. 2011). 97 Compare 18 U.S.C. §§ 2, 371 (2006) See also in re [deleted], on Appeal from the United States Foreign 

Intelligence Surveillance Court, Supplemental Brief for the United States, No. 02-001, Appendix: 

comparison of FISA and Title Ill, available at https://www.fas.org/irp/agency/doj/fisa/092502sup.html. 98 H.R. Rep. No. 95-1283, Part I, 95th Cong., 2d Sess. 44 (1978). 99 18 u.s.c. §IOOI (2006). 100 in re [deleted}, on Appeal from the United States Foreign Intelligence Surveillance Court, Supplemental 

Brief for the United States, No. 02-001, Appendix: comparison ofFJSA and Title III, available at 

hrtps :1/ww-w. fas .org/irp/ agency/ doj/fisa/092 5 02 sup.html. 101 50 U .S.C. § l805(a)(2) (2006). 

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C. Minimization Procedures for Acquisition and Retention 

A third protection inserted by Congress centered on the introduction of minimization 

procedures, in order to protect activity not related to foreign intelligence from 

government scrutiny. 102 The legislature insisted here on minimizing not just the analysis 

of the information, but its "acquisition and retention." 103 Specifically, according to the 

statute: 

"Minimization procedures", with respect to electronic surveillance, means-

(l) specific procedures, which shall be adopted by the Attorney General, that are 

reasonably designed in light of the purpose and technique of the particular 

surveillance, to minimize the acquisition and retention, and prohibit the 

dissemination, of nonpublicly available information concerning unconsenting 

United States persons ... 104 

Under FISA, only U.S. persons' information must be subject to minimization 

procedures. 105 

D. Introduction of the Foreign Intelligence Su11!eillance Court 

As a further precaution against executive overreach, Congress provided in FISA for two 

courts: the Foreign Intelligence Surveillance Court ("FISC") and the Foreign Intelligence 

Surveillance Court of Review. A key principle throughout the debates was the 

importance of heightened protections where U.S. persons' information may be involved. 

The conference was deadlocked on this point until the Senate receded and accepted the 

House language exempting certain particularly sensitive surveillance (i.e., relating solely 

to foreign powers) from judicial review, on the grounds that (1) such surveillance did not 

involve U.S. persons; and (2) having removed the most sensitive information from 

external review, the Foreign Intelligence Surveillance Court could be given a greater role 

in protecting the rights of each U.S. person targeted by the government. 106 The use of a 

judicial element went some way towards providing for an independent, neutral, 

disinterested magistrate, to review the strength of the government's case supporting the 

initiation of surveillance.107 

Initially, the statute provided for seven judges to sit on FISC; that number has since 

expanded to include eleven judges drawn from at least seven of the federal circuits, three 

of whom must reside in the Washington, D.C. area. 108 Both the FISC judges and the 

judges on the court of appeal are selected by the Chief Justice of the U.S. Supreme 

Court. 109 To avoid agency capture, judges may only serve for up to seven years, at the 

conclusion of which they are not eligible to again serve as FISC judges. 110 

From the beginning, FISC's role was significantly limited: it was merely to grant or 

to deny applications for orders. 111 The statute thus included extensive details about what 

would have to be included in such applications: the identity of the Federal officer 

making the application, the identity, if known, of the target, a statement of the facts and 

circumstances relied upon to justify the applicant's belief that the target is a foreign 

power or an agent of a foreign power and that each of the facilities or places at which 

102 50 U.S.C. § !804(a)(4) (2006 & Supp. V 2011). 103 50 U.S.C. § 180l(h) (2006 & Supp. V 2011) (emphasis added). 104 !d. 

tos Id. 

106 124 CONG. REC. 36,409 (I 978). 107 Discussion with former members of the Church Committee, Washington, D.C. (Sept. 23, 2013). 108 50 U.S.C. §1803(a)(l)(2006 & Supp. V 2011). 109 50 U.S.C. § 1803(a)(l) (2006 & Supp. V 2011) and 50 U.S.C. § 1803(b) (2006 & Supp. V 2011 ). 110 50 U.S.C. §1803(d) (2006& Supp. V 2011). Ill !d. 

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electronic surveillance is directed is being (or about to be) used by a foreign power or an 

agent thereof, a statement of the proposed minimization procedures, a description of the 

nature of the information sought, a certification from an executive branch official, a 

summary statement of the means by which the surveillance will be effected, a statement 

of the facts concerning all previous applications, and a statement of the period of time for 

which the surveillance is required to be maintained. 112 

Where the government has met the necessary criteria, the judge's role is to enter an 

ex parte order as requested, or to modify it accordingly. Initially, such orders could only 

be issued in relation to electronic surveillance. Subsequent amendments expanded 

FISC's jurisdiction to physical searches, pen registers and trap and trace devices and 

business records or tangible things. 113 These alterations, however, were merely in 

substance and not in form. The function being performed by FISC throughout was the 

same: it was merely to grant or to deny orders prior to the acquisition of information on 

particular targets. 

E. Broad Congressional Support 

The Foreign Intelligence Act of 1978 represented the culmination of a multi-branch, 

multi-year, cross-party initiative directed at bringing the collection of foreign intelligence 

within a narrowly circumscribed, legal framework. In 1972 the Senate Committee on the 

Judiciary's Subcommittee on Administrative Practice and Procedure held extensive 

hearings on the subject of warrantless wiretapping. 114 In 1975 the subcommittee issued a 

report jointly with a special subcommittee of the Foreign Relations Committee, calling 

for Congress to introduce legislation governing foreign intelligence collection. 115 In 1976 

President Ford and Attorney General Levi introduced the first foreign intelligence bill. 116 

President Carter and Attorney General Bell subsequently supported S. 1566, which 

became FISA. 117 Congress consulted the NSA, FBI, CIA, and representatives of 

interested citizen groups, gaining broad support for the measure. 118 

Because of the bipartisan, multi-branch approach taken to its construction, FISA 

passed by significant majorities. S. 1566 passed the Senate 95 to 1. 119 H.R. 7308 passed 

the House 246 to 128. 120 In October 1978 the Senate adopted the Conference Report "by 

an overwhelming voice vote, with no dissenting voice vote." 121 The House of 

Representatives, in turn, adopted the Conference Report by a vote of 226 to 176. 122 

F. Subsequent Amendment: Traditional and Non-Traditional FISA 

Since FISA's introduction, Congress has amended the statute to cover physical 

searches, 123 pen register and trap and trace devices, 124 business records, 125 and tangible 

112 50 U.S.C. §1804 (2006 & Supp. V 2011). 113 50 U.S.C. §§ 1821-1824 (2006 & Supp. V 2011) (orders for physical search); 50 U.S.C. §1842 (pen 

register and trap and trace devices); 50 U.S.C. § 1861 (2006) (business records and tangible goods). 114 122 CONG. REC. 7543 ( 1976). 

ll5 !d. 116 Foreign Intelligence Surveillance Act of 1976, H.R. 12750, 94th Cong. (introduced in the House, Mar. 23, 

1976). 

ll7 124 CONG. REC. 36,409 (1978). 118 124 CONG. REC. 37,738 (1978); 124 CONG. REC. 36,414 (1978). 119 !d. 

120 !d. 

121 /d. 

122 124 CONG. REC. 36,417-18 (1978). 123 Pub L. No. 103-359, § 101-909, 108 Stat. 3423, 3443 (1994); 50 U.S.C. §§1821-1829 (2006 & Supp. V 

2011). 

124 Pub. L. No. 105-272, §§601-02, 112 Stat. 2396, 2404 (1998); 50 U.S.C. §§ 1841-1846 (2006 & Supp. V 

2011). 

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goods. 126 Because of their consistent structure and approach, these provisions have come 

to be referred to collectively as "traditional FISA". 127 In 2008 Congress further amended 

the statute under Section 702 of the FISA Amendments Act, creating a new, nontraditional surveillance authority. Recent information made public suggests that the NSA 

is making extensive use of both traditional and modem authorities to conduct broad 

surveillance programs, in the process obtaining significant amounts of data on U.S. 

persons. A brief discussion of the provisions helps to underscore Congress' general 

approach in FISA and to elucidate ways in which these programs violate both the 

orientation of the statute and the existing statutory language. 

I. Traditional FISA: Physical Search, Pen/Trap 

Similar to the electronic surveillance provisions, physical search orders under FISA are 

limited by the government establishing the target of the search prior to acquisition of 

information. Specifically, physical search orders may only be used to target "pn~mises, 

information, material, or property used exclusively by, or under the open and exclusive 

control of, a foreign power or powers." 128 The sub-section adopts the same definitions of 

"foreign power", "agent of a foreign power", "international terrorism", "sabotage", 

"foreign intelligence information", and "United States person" as used elsewhere in the 

statute. 129 It provides for FISC to grant or to deny orders consistent with FISC's role in 

electronic surveillance. 130 The government must make the same showings, particularly 

describing the target prior to FISC granting the order. 131 And heightened protections are 

afforded to U.S. persons. 132 

In 1998 Congress amended FISA to allow for the installation and use of pen register 

(recording numbers dialed from a particular phone) and trap and trace devices (acting as a 

caller ID record). 133 The Attorney General, or a designated attorney, must submit an 

application in writing and under oath either to FISC or to a magistrate specifically 

appointed by the Chief Justice to hear pen register or trap and trace applications on behalf 

125 Intelligence Authorization Act for Fiscal Year 1999, Pub. L. 105-272, §602, 112 Stat. 2396, 2410 (1998). 126 Various further amendments of these sections have occurred. The USA PATRIOT Act, for instance, 

changed the duration of certain FISA authorization orders (§207), increased the number of FISC judges to 11 

(§208); amended FISA pen/trap provisions (§214), changed the purpose of electronic & physical searches 

(§218), and authorized coordination between intelligence and law enforcement (§504). ITRPA subsequently 

added a "lone wolf' provision via §6000!(a). 127 See, e.g., DAVIDS. KRIS AND J. DOUGLAS WILSON, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS, 

Chapter 12 (2d ed. 2012). In addition to the aforementioned amendments, in 2001 Congress amended FISA to 

take account of roving wiretaps. USA PATRIOT Act, §206 (amending §105(c)(2)(B) of the Foreign 

Intelligence Surveillance Act of 1978, codified as amended at 50 U.S.C. § 1805(c)(2)(B) (2006)). This 

alteration reflected a change that had been integrated into criminal law measures in 1998. At that time, the 

House Conference Report explained: "Under current law, judges issue wiretap orders authorizing law 

enforcement officials to place a wiretap on a specific telephone number. Criminals, including terrorists and 

spies, know this and often try to avoid wiretaps by using pay telephones on the street at random, or by using 

stolen or cloned cell telephones. As law enforcement officials cannot know the numbers of these telephones 

in advance, they are unable to obtain a wiretap order on these numbers from a judge in time to intercept the 

conversation, and the criminal is able to evade interception of his communication." 123 50 U.S.C. § 1822(a)(l)(A)(i) (2006). 129 50 U.S.C. § 182!(1) (2006 & Supp. V 2011). 130 50 U.S.C. §§ 1822-1824 (2006). 

m 50 U.S.C. § 1823 (2006 & Supp. V 2011). 132 See, e.g., 50 U.S. C. § 1821 (l)(A)(ii)(2006 & Supp. V 2011) (requiring the Attorney General to certifY in 

writing and under oath that "there is no substantial likelihood that the physical search will involve the 

premises, information, material, or property of a United States Person.") and 50 U.S.C. § 1821(l)(A)(iii) 

(2006 & Supp. V 2011) (requiring minimization procedures for U.S. persons infonnation). 133 Pub. L. No. 105-272, §§601-02, 112 Stat. 2396, 2404 (!998); 50 U.S.C. §§ 1841-1846 (2006) (pen/trap); 

50 U.S.C. §§ 1861-1862 (2006) (tangible things). 

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of the FISA court. 134 Similar to the provisions related to electronic communications and 

physical search, the application must include information to show that the device has 

been, or will in the future be, used by someone who is engaging (or has engaged) in 

international terrorism or is a foreign power or agent thereof. 135 In the event of an 

emergency, the Attorney General can authorize the installation and use of a pen register 

or trap and trace device without judicial approval. 136 Nevertheless, a proper application 

must be made to the appropriate judicial authority within forty-eight hours. 137 

Following the 9/11 attacks, Congress relaxed the requirement for factual proof for 

placement of a pen/trap: the applicant no longer must demonstrate why he or she believes 

that a telephone line will be used by an individual engaged in international terrorism. 

Instead, the applicant must demonstrate only that the information likely to be gained 

does not directly concern a U.S. person and will be relevant to protect against 

international terrorism. This provision, hotly contested by civil libertarians, was 

scheduled to sunset on December 31, 2005. 138 But in 2006, Congress made it 

permanent. 139 Critically, while it relaxes the standard for obtaining information from 

particular telephone lines, it still draws a higher bar for obtaining U.S. persons' 

information. 

The statute understands the terms "pen register" and "trap and trace device" 

consistent with the criminal law standard-namely: a pen register is: 

[A] device or process which records or decodes dialing, routing, addressing, or 

signaling information transmitted by an instrument or facilitiy from which a wire 

or electronic communication is transmitted, provided, however, that such 

information shall not include the contents of any communication. 140 

A "trap and trace device", in turn, is defined as: 

[A] device or process which captures the incoming electronic or other impulses 

which identify the originating number of other dialing, routing, addressing, and 

signalling information reasonably likely to identify the source of a wire or 

electronic communication, provided, however, that such information shall not 

include the contents of any communication. 141 

In addition to all dialing, routing, addressing and signalling information sent from or 

received by a target, orders may require electornic communication service providers to 

disclose further information, including: 

(1) the name of the customer or subscriber; 

(2) the address of the customer or subscriber 

(3) the telephone or instrument number, or other subscriber number of identifter, 

of the customer or subscriber, including any temporarily assigned network 

address or associated routing or transmission ifnormation; 

134 50 U.S.C. § 1842(a)-(b) (. As with the application for electronic surveillance, the applicant must include 

the name of the official seeking surveillance, as well as certification that "the information likely to be 

obtained is relevant to an ongoing foreign intelligence or international terrorism investigation." 50 U.S.C. § 

1842(c)(l)-(2) (2006). 135 50 U.S.C. § 1842( c)(A) (2006 & Supp. V 20 II). 136 50 U.S.C. § 1843(a) (2006 & Supp. V 201 1). 137 50 U.S.C. § 1843(a)(2) (2006 & Supp. V 2011). 

"' Uniting and Strengthening America by Proving Appropriate Tools Required to Intercept and Obstruct 

Terrorism Act of2001 (USA PATRIOT Act), Pub. L. No. 107-56, § 215, 115 Stat. 272 (2001) (codified as 

~:ended at 50 U.S.C. § 1861 (2000 & Supp. V 2001)); 18 U.S.C. § 214 (2000). 

USA PATRIOT Improvement and Reauthonzanon Act of2005, P.L. 109-177, § 102, 120 Stat. 192 

(2006). 

140 IS U.S.C. §3127(3) (2006 & Supp. V 2011). 141 18 U.S.C. §3127(4) (2006 & Supp. V 2011). 

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116 

( 4) the length of the provision of service by such provider to the customer or 

subscriber and the types of services utilized by the customer or subscriber; 

(5) in the case of a provider of local or long distance telephone service, any local 

or long distance telephone records of the customer or subscriber; 

(6) if applicable, any records reflecting period of usage (or sessions) by the 

customer or subscriber; and 

(7) any mechanisms and sources of payment for such service, including the 

number of any credit card or bank account utilized for payment for such 

service. 142 

Notably, what these passages demonstrate is that the collection of all of the information 

encapsulated in the NSA's telephony metadata program is already provided for under 

FISA subchapter three. 

Unlike the NSA's current practice, however, each order under the pen/trap 

provisions must be approved by either FISC or a magistrate judge appointed for the 

purpose of approving pen/trap orders under FISA. 143 Orders must specify the precise 

identity (if known) of the person who is the subject of the investigation, and the person to 

whom is leased or in whose name the telephone line is listed. 144 And heightened 

protections are provided for U.S. persons. 145 

These provisions are entirely consistent with Congress' approach in FISA: namely, 

particularized showing in relation to the target, a decision prior to the collection of 

information, issuance of an individualized order by the court, and heightened protections 

for U.S. persons. By inappropriately introducing the telephony metadata under 

subchapter four, the NSA is simply doing an end-run around the carefully thought-out 

protections of subchapter three. I will return to this point, below. 

2. Traditional FISA: Business Records, Tangible Goods, and Section 215 

Following the Oklahoma city bombing, in 1998 Congress amended FISA to authorize the 

production of certain kinds of business records of those suspected of being foreign 

powers or agents of a foreign power: namely, documents maintained by common carriers, 

public accommodation facilities, storage facilities, and vehicle rental facilities. 146 Any 

records obtained under this provision had to be for "an investigation to gather foreign 

intelligence information or an investigation concerning international terrorism." 147 The 

application had to include "specific and articulable facts giving reason to believe that the 

person to whom the records pertain is a foreign power or an agent of a foreign power." 148 

As with the other provisions of traditional FISA, Congress assigned the terms 

"foreign power", "agent of a foreign power, "foreign intelligence information", and 

"international terrorism" the same meaning as employed in relation to electronic 

surveillance. 149 Congress also required intelligence agencies to follow the same steps as 

142 50 U.S.C. §1842(d)(2)(c)(i) (2006 & Supp. V 2011). 143 50 U.S.C. §1842(b)(2) (2006 & Supp. V 2011). 144 50 U.S.C. §§1842 (d)(2)(A)(i)-(ii) (2006 & Supp. V 2011). 145 50 U.S.C. §§ 1842 (c)(2) (2006 & Supp. V 2011) (requiring "certification by the applicant that the 

information likely to be obtained is foreign intelligence information not concerning a United States person or 

is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence 

activities, provided that such investigation of a United States person is not conducted solely upon the basis of 

activities protected by the first amendment to the Constitution.") 146 Intelligence Authorization Act for Fiscal Year 1999, Pub. L. I 05-272, §602, 112 Stat. 2396, 2410 (1998). 147 Jd. 

148 !d. 

149 ld. 

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117 

those taken with regard to electronic surveillance: i.e., to submit an application to FISC to 

obtain an order, which then compels the companies to hand over the records. 150 

Initially, the FBI did not heavily rely on the business records provision: between 

1998 and 2001, the Bureau only used it once. Nevertheless, in 2001 Congress expanded 

the types of records that could be obtained, authorizing intelligence agencies to apply for 

an order from FISC "requiring the production of any tangible things (including books, 

records, papers, documents, and other items)". 151 Congress eliminated restrictions on the 

types of businesses or entities on which such an order could be served. 152 It retained, 

however, the general contours of FISA, specifYing that such items be obtained in the 

course of "an investigation to protect against international terrorism or clandestine 

intellig~::nce activities." 153 Congress again added heightened protections for U.S. persons, 

requiring that such investigation, where directed towards a U.S. person, not be 

"conducted solely upon the basis of activities protected by the first amendment to the 

Constitution."154 

In the new statute, Congress lowered the standard for obtaining Section 215 orders, 

eliminating the requirement that the application include "specific and articulable facts" 

indicating that the individual to whom the r~::cords pertain is a foreign power or an agent 

th~::reof. 155 

Nevertheless, from the beginning, the Department of Justice rightly understood that 

the information to be obtained under the tangible goods provision was still narrow, in that 

it must pertain directly to the person targeted in the authorized investigation. A 

m~::morandum sent in October 2003 to all Field Offices ~::xplain~::d: 

The business records request is not limited to the records of the target of a full 

investigation. The request must simply be sought for a full investigation. Thus, 

if the business records relating to one person are relevant to the full investigation 

of another person, those records can be obtained by a FISC order despite the fact 

that there is no open investigation of the person to whom the subject of the 

business records pertain. 156 

The relevance standard adopted was thus specific with regard to the connection betw,een 

the records sought and the targ~::t of the investigation, as well as limited, with regard to 

the actual establishment of a particular investigation. 

150 !d. 

151 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct 

Terrorism ("USA PATRIOT Act") Act of2001, Pub. L. 107-56, § 215, 115 Stat. 272,287 (2001) (codified as 

amended at 50 U.S.C. § 1861 (2006 & Supp. V 2011). Congress also amended FISA to require that 

applicants to FISC certify that "a significant purpose" of the surveillance be to obtain foreign intelligence. 50 

U.S.C. § 1804(a)(7)(B) (2006 & Supp. V 2011). This shift, from the prior language that "the" purpose be to 

obtain foreign intelligence, had the effect of removing a wall that had built up within the Department of 

Justice between intelligence officers and criminal prosecutors. The government argued that the latter should 

be allowed to advise the former concerning the initiation, operation, continuation, or expansion of FISA 

searches or surveillance. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. 

Supp. 2d 611, 623 (FlSA Ct. 2002). The Foreign Intelligence Surveillance Court of Review upheld the 

change. In reSealed Case, 310 F.3d 717 (FJSA Ct. Rev. 2002). This alteration, however, simply recognizes 

parallels between criminal violations and national security threats. It does not suddenly shift the focus of the 

statute to allow intelligence agencies to collect information on millions of Americans not suspected of any 

wrongdoing. 

152 !d. 

153 !d. 

154 !d. 

155 USA PATRIOT Act§ 215, Pub. L. 107-56, § 215, 115 Stat. 272,287 (2001) (codified as amended at 50 

U.S.C. § 1861 (2006 & Supp. V 2011). 156 FBI Memorandum from General Counsel, National Security Law Unit, to All Field Offices, Business 

Records Orders Under 50 U.S.C. § 1861 (Oct. 29, 2003), available at 

http://epic.org/privacy/terrorism/usapatriot/foia/fieid _memo. pdf. 

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118 

For the first two years, attorney general guidelines only allowed business record 

requests as part of full field investigations. In the same memo specifying that the records 

must be directly related to the person under investigation, the general counsel of the 

national security law unit indicated that the type of investigation that must already be 

established, and in relation to which the records being sought must pertain, "may be 

revised in the near future to allow the use of a FISC business records order in a 

preliminary investigation."157 Near future indeed-two days later, on October 31, 2003, 

Attorney General issued a 38-page document, establishing new guidelines for national 

security investigations-and allowing agents to obtain business records during 

preliminary investigations. 158 

Despite the expansion to preliminary investigations, the specificity embedded in the 

relevance principle remained. In order to open a preliminary investigation, the Attorney 

General required in his 2003 guidelines that, inter alia, the individual targeted in the 

investigation be an international terrorist or an agent of a foreign power, or any 

individual, group, or organization engaged in activities constituting a threat to national 

security for or on behalf of a foreign power, or who may be the target of a recruitment or 

infiltration effort by an international terrorist, foreign power, or an agent of a foreign 

power.159 

There are two points to make about this construction. First, the Attorney General 

emphasized particular "individuals," "groups," or "organizations" as the target of 

preliminary investigations. This was consistent with FISA's traditional approach. 

Second, only once a preliminary investigation was established could agents then make 

usc of "authorized techniques" to obtain information (e.g., mail opening, physical search, 

or electronic surveillance requiring judicial order or warrant). 160 This meant that the 

target had to be determined (in the course of which the FBI would open a preliminary 

investigation) prior to orders allowing for the acquisition of tangible goods could issue. 

Section 215 of the USA PATRIOT Act was set to expire December 31, 2005. 161 

Congress has since renewed it seven times. 162 It is now set to expire June I, 2015. 163 In 

157 ld. 158 The Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence 

Collection (Oct. 31, 2003), available at http://www.fas.org/irp/agency/doj/fbi/nsiguidelines.pdf. 159 ld. at 14. 160 !d. at I 5. 101 /d. See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and 

Obstruct Terrorism (USA Patriot Act) of200l, 50 U.S.C. §§ 1861-63 (amending Title V, Section 501 of the 

Foreign Intelligence Surveillance Act, "Access to Certain Business Records for Foreign and International 

Terrorism Investigations, 50 U.S.C. § 1861 ). 162 An Act to Amend the USA PA TRJOT Act to Extend the Sunset of Certain Provisions of that Act and the 

Lone Wolf Provision of the Intelligence Reform and Terrorism Prevention Act of2004 to July l, 2006, Pub. 

L. No. 109-160, 119 Stat. 2957 (2005) (extension until Feb. 3, 2006); An Act To Amend the USA PATRIOT 

Act to Extend the Sunset of Certain Provisions of Such Act, Pub. L. No. 109-170, 120 Stat. 3 (2006) 

(extension until Mar. 10, 2006); USA PATRIOT Improvement and Reauthorization Act of2005, Pub. L. No. 

109-177, 120 Stat. 192 (2006) (extension until Dec. 3I, 2009); Department of Defense Appropriations Act, 

2010, Pub. L. No. I 1 I-118, 123 Stat. 3409 (2009) (allowing for a short-term, 60-day extension of 50 U.S.C. 

1861 until February 28, 2010); An Act to Extend Expiring Provisions of the USA PATRIOT Improvement 

and Reauthorization Act of 2005 and Intelligence Reform and Terrorism Prevention Act of 2004 until 

February 28,2011, Pub. L. No. 111-141, 124 Stat. 37 (2010) (extension until Feb. 28, 20I I); FISA Sunsets 

Extension Act of 2011, Pub. L. No. I 12-3, 125 Stat. 5 (2011) (extension until May 27, 2011); PATRIOT 

Sunsets Extension Act of201 I, Pub. L. No. 112-14, 125 Stat. 2I6 (2011) (extension until June 1, 2015). 163 PATRIOT Sunsets Extension Act of2011, Pub. L. No. 112-14, 125 Stat. 216 (2011). Note that in a race 

against the clock, President Obama signed the most recent, four-year extension of Section 2 I 5 just minutes 

before the midnight deadline May 26, 20 II. Patriot Act Extension Signed Into Law Despite Bipartisan 

Resistance in Congress, WASH POST, May 27,2011, available at 

http://www.washingtonpost.comlpoliticslpatriot-act-extension-signed-into-law-despite-bipartisan-resistancein-congress/2011!05/27/AGbVlsCH_story.html. A bipartisan group of lawmakers had rallied against the 

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119 

2005, in the course of extending the tangible goods provision, Congress added language 

tying the section more closely to FISA's overarching structure. It required applicants to 

submit a statement of facts, establishing "reasonable grounds to believe that the tangible 

things sought are relevant to an authorized investigation (other than a threat 

assessment)." 164 The investigation to which the order is tied must be conducted under 

guidelines approved by the Attorney Gencral. 165 The purpose of the investigation must 

be "to obtain foreign intelligence information not concerning a United States person or to 

protect against international terrorism or clandestine intelligence activities." 166 The 

underlying investigation may not be directed at a U.S. person based solely on otherwise 

protected First Amendment activity. 167 

Tangible things are presumptively relevant to an investigation where they pertain to: 

(I) a foreign power or an agent of a foreign power; (2) the activities of a suspected agent 

of a foreign power, themselves the subject of an authorized investigation; or (3) an 

individual in contact with, or known to, a suspected agent of a foreign power who is the 

subject of an authorized investigation. 168 

For certain materials-namely, library circulation records, library patron lists, book 

sales records, book customer lists, firearms sales records, tax return records, educational 

records, or medical records with information identifYing an individual, only the Director 

of the FBI, the Deputy Director of the FBI, or the Executive Assistant Director for 

National Security may make the application; none of these individuals may further 

delegate their authorities in this respect. 169 

In the 2005 amendments, Congress required "an enumeration of the minimization 

procedures" related to the retention and dissemination of any tangible things obtained. 170 

Any orders issued "may only require the production of a tangible thing if such thing can 

be obtained with a subpoena duces tecum issued by a court of the United States in aid of 

a grand jury investigation or with any other order issued by a court of the United States 

directing the production of records or tangible things." 171 As discussed, below, the 

telephony metadata program, by FISC's own admission, fails to satisfY this statutory 

requirement. Any individual served with an order is gagged from telling anyone other 

than individuals to whom disclosure is necessary to comply with the order or an attorney 

to obtain legal advice or help with regard to producing the items sought. 172 Under the 

measure, with the result that the USA PATRIOT Sunsets Extension Act of 2011 passed the Senate 72 to 23 

and the House 250 to 153. With President Obama at a summit in France, the White House took the unusual 

step of having him sign the bill with an autopen-prompting commentators to question whether it was legal 

under Art. 1 (7) of the U.S. Constitution. See, e.g., PATRIOT Sunset Extension Act of 20/1 "Signed" into 

Law, Law Librarian Blog, available at http://lawprofessors.typepad.com/law_librarian blog/2011/05/patriotsunset-extension-act-of-2011-signed-into-law-.html; Originalism and the Autopen: Obama's "Signing" of 

Patriot Act Extension Constitutional, Constitutional Law Prof Blog, May 30, 2011, 

http:i/lawprofessors.typepad.com/conlaw/2011/05/originalism-and-the-auto-pcn.html. The White House 

apparently relied on a memorandum opinion issued by the Office of Legal Counsel in 2005. See Whether 

the President May Sign a Bill by Directing that His Signature be Affixed to It, Memorandum Opinion for the 

counsel to the President, July 7, 2005, available at 

http://lawprofessors. typepad.cornifiles/opinion _ 07072005.pdf. 164 USA PATRIOT Improvement and Reauthorization Act of2005 § 106, 120 Stat. 196 (codified as amended 

at 50 U.S.C. §1861 (2006). 165 50 U.S.C. § 186I (a)(2)(A) (2006). Such guidelines arc issued consistent with Executive Order 12333. 166 USA PATRIOT Improvement and Reauthorization Act of2005 § 106, 120 Stat. 196 (codified as amended 

at 50 U.S.C. § 1861 (2006)). 167 50 U.S.C. §1861(a)(2)(8) (2006). 168 50 U.S.C. §186l(b)(2)(A) (2006) and 50 U.S.C. §1861(c)(1) (2006). 169 50 U.S.C. §186I(a)(3) (2006). 170 ld. 1

" 50 U.S.C. §186l(c)(2)(2006). 172 50 U.S.C. §1861(c)(2)(E) (2006). 

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120 

statute, an individual on whom an order has been served may challenge the legality of the 

order by filing a petition with the court within a year, requesting that the order be 

modified or set aside. 173 

3. Modem FISA and Section 702 

Until recently, FISA did not regulate any of the four activities (electronic surveillance, 

physical searches, pen/trap, or tangible things) when conducted abroad. If a U.S. person 

went overseas, their telephone calls could be monitored and their hotel room searched 

without regard to FISA. Authority stemmed from the President's inherent constitutional 

authority, as channeled through Executive Orders, Department of Defense directives, and 

policy documents. 174 Nevertheless, in recognition of the higher level of protection 

afforded to U.S. persons, SIGINT practice, prior to the attacks of September 11, 2001, 

was not to listen in on, or to collect information on, Americans overseas. 175 U.S. citizens 

within domestic bounds fell within traditional FISA. 

It thus came as a surprise when, in late 2005, the New York Times reported that the 

NSA had "monitored the international telephone calls and international e-mail messages 

of hundreds, perhaps thousands, of people in the United States without warrants." 176 

White House Press Secretary, Scott McClellan, initially refused to comment. 177 But 

the next morning, President Bush went on national television to defend the surveillance 

operation. 178 He grounded his power in the 2001Authorization for the Use of Military 

Force (passed by Congress one week after the September 11, 2001 attacks), and his 

173 50 U.S.C. §186l(f)(I)(B)(2006). 114 Exec. Order 12333, § 2.5, 46 Fed. Reg. 59941 (Dec. 4, 1981) "The Attorney General hereby is delegated 

the power to approve the use for intelligence purposes, within the United States or against a United States 

person abroad, of any technique for which a warrant would be required if undertaken for law enforcement 

purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined 

in each case that there is probable cause to believe that the technique is directed against a foreign power or an 

agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 

1978, shall be conducted in accordance with that Act, as well as this order.") See also DoD Directive 5240.1, 

Activities of DoD Intelligence Components that Affect US Persons, Apr. 5, 1988; NSA/CSS Directive No. 

I 0-30, Procedures Governing Activities of NSA/CSS that Affect US Persons, Sept. 20, 1990. 175 [NSA/Central Security Services] U.S. Signals Intelligence Directive 18 [July 27 1993] at §3.1 ("The 

policy of the USSS is to TARGET or COLLECT only FOREIGN COMMUNICATIONS.• The USSS will 

not intentionally COLLECT communications to, from or about U.S. PERSONS or persons or entities in the 

U.S. except as set forth in this US SID. Ifthe USSS inadvertently COLLECTS such communications, it will 

process, retain and disseminate them only in accordance with this USSID."). See also id. at §4.1. 176 James Risen and Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 

2005, available at http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all&_r=O (also 

writing "Months after the Sept. II attacks, President Bush secretly authorized the National Security Agency 

to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity 

without the court-approved warrants ordinarily required for domestic spying ... ") 117 Press Briefing by Scott McClellan, James S. Brady Briefing Room, 12:33 pm, Dec. 16,2005, available at 

http:/lgeorgewbush-whitehouse.archives.gov/news/releases/2005112/20051216-l.html ("there's a reason why 

we don't get into discussing ongoing intelligence activities, because it could compromise our efforts to 

prevent attacks from happening. And it could telegraph to the enemy what we are doing ... And we don't 

want to do anything to compromise sources and methods. As for talking about the NSA, "that would be 

getting into talking about ongoing intelligence activities. And they're classified for a reason, because they do 

to the issue of sources and methods and protecting the American people. And because they're classified, I'm 

not able to get into discussing those issues from this podium.") 178 President's Radio Address, Roosevelt Room, Dec. I 7, 2005, available at http://georgewbushwhitehousc.archives.gov/newslreleases/2005/l 2/200512 I 7.html. ("l authorized the National Security 

Agency, consistent with U.S. law and the Constitution, to intercept the international communications of 

people with known links to a! Qaeda and related terrorist organizations. Before we intercept these 

communications, the government must have information that establishes a clear link to these terrorist 

networks.") 

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constitutional authorities as Commander-in-Chief. 179 Bush revealed that he had reauthorized the program more than 30 times since 9/1 L 180 Each review, he said, had 

included the Attorney General and the Counsel to the President, with NSA's activities 

further overseen by legal counsel at DOJ and NSA. 181 Leaders in Congress also had been 

briefed on the program. 182 Bush added, "This authorization is a vital tool in our war 

against the terrorists. It is critical to saving American lives." 183 He stated that the release 

of the New York Times story had been illegal. 184 The FBI immediately began an 

investigation into the leak, with 25 agents and 5 prosecutors assigned to the case. 185 

The Administration soon offered a more detailed legal defense of the Terrorism 

Surveillance Program ("TSP"), largely consistent with the President's initial 

statements. 186 The Department of Justice explained that the purpose of the program was 

to "intercept international communications into and out of the United States of persons 

linked to a! Qaeda or related terrorist organizations". 187 The Department cited "the 

President's well-recognized inherent constitutional authority as Commander in Chief and 

sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy 

forces for intelligence purposes." 188 It referenced the President's authority under Article 

II of the Constitution to repel acts of aggression. 189 And it argued that the language in 

the AUMF, giving the President to "use all necessary and appropriate force against those 

nations, organizations, or persons he determines planned, authorized, committed, or aided 

179 !d. ("I am using authority vested in me by Congress, including the Joint Authorization for Use of Military 

Force, which passed overwhelmingly in the first week after September the I Jth. I'm also using constitutional 

authority vested in me as Commander-in-Chief.") See also Authorization for Use of Military Force, Pub. L. 

107-40, 115 Stat 224 (2001). )80 ld. 

1s1 Id. 

!81 Jd. 

'" Jd. 184 Jd. 

185 Scott Shane, Obama Takes a Hard Line Against Leads to Press, N.Y. TIMES, June 11,2010, available at 

http:/ /www.nytimes.com/20 1 0/06/12/us/politics/12leak.html. 186 See U.S. Department of Justice, Legal Authorities Supporting the Activities of the national Security 

Agency Described by the President (Jan. 19, 2006) (available at 

http://www.usdoj.gov/opalwhitepaperonnsalegalauthorities.pdf; Letter from William E. Moschella, Assistant 

Attorney General to The Hon. Pat Roberts, Chair, Senate Select Committee on Intelligence, The !Ion. John 

D. Rockiefeller, IV, Vice Chairman, Senate Select Committee on Intelligence, The Hon. Peter Hoekstra, 

Chairman, Permanent Select Committee on Intelligence, U.S. House of Representatives, and the Hon. Jane 

Harman, Ranking Minority Member, Permanent Select Committee on Intelligence, U.S. House of 

Representatives, Washington, DC, (Dec. 22, 2005) (available at 

https :/ /www. fas .org/irp/agency/doj/fisa/doj 122205. pdf) 187 U.S. Department of Justice, Legal Authorities Supporting the Activities of the national Security Agency 

Described by the President, at 5, (Jan. 19, 2006) (available at 

http://www.usdoj.gov/opa/whitepapcronnsalegalauthorities.pdf) 

188 U.S. Department of Justice, Legal Authorities Supporting the Activities of the national Security Agency 

Described by the President, at I (Jan. 19, 2006) (available at 

http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf). 

189 U.S. Department of Justice, Legal Authorities Supporting the Activities of the national Security Agency 

Described by the President, at I (Jan. 19, 2006) 

http://www.usdoj.gov/opalwhitepaperonnsalegalauthorities.pdf; and Letter from William E. Moschella, 

Assistant Attorney General, to The Hon. Pat Roberts, Chair, Senate Select Committee on Intelligence, The 

Hon. John D. Rockefeller, IV, Vice Chairman, Senate Select Committee on Intelligence, The Hon. Peter 

Hoekstra, Chairman, Permanent Select Committee on Intelligence, U.S. House of Representatives, and the 

Hon. Jane Harman, Ranking Minority Member, Permanent Select Committee on Intelligence, U.S. House of 

Representatives, Washington, DC (Dec. 22, 2005) (available at 

https://www.fas.org/irp/agency/dojlfisa/dojl22205.pdf) ("This constitutional authority," the Assistant 

Attorney General continued, "includes the authority to order warrantless foreign intelligence surveillance 

within the United States, as all federal appellate courts, including at least four circuits, to have addressed the 

issue have concluded.") 

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the terrorist attacks" of September ll to prevent "any future acts of international 

terrorism against the United States" included traditional military activity-into which 

category warrantless communications intelligence fell. 190 According to DOJ, this moved 

the decision into the first category of the tripartite framework established by Justice 

Jackson's concurrence in Youngstown Sheet & Tube Co. v. Sawyer. 191 The government 

also relied on the War Powers Resolution, enacted less than five years before FISA, as 

allowing the President to introduce United States Armed Forces into hostilities. 192 

Congress and others strongly objected to the legal analysis. The Authorization of the 

Use of Military Force nowhere made reference to electronic surveillance; nor did the 

legislative history associated with the authorization. 193 FISA, moreover, contemplated the 

advent of war, allowing for special procedures to be followed with respect to electronic 

surveillance, physical searches and pen/trap surveillance. 194 It provided for a 15 day 

grace period, to "allow time for consideration of any amendment to [FISA] that may be 

appropriate during a wartime emergency." 195 At the expiry of the 15 days, absent any 

amendment, ordinary FISA provisions would have to be followed. This was a carefullyconstructed compromise position: during the debates on FISA, the House of 

Representatives had sought a complete abatement of FISA during periods of declared 

war. The Senate objected, and the House of Representatives changed its position. 

Congress (and the Courts) also had considered and declined to recognize claims to 

Presidential Article II authority to conduct foreign intelligence gathering within domestic 

bounds. During passage of FISA, the House wanted the statute to read that it was the 

"exclusive statutory" means for the Executive to conduct electronic surveillance, 

implying in the process that the President had inherent surveillance powers outside the 

statute. The Senate completely rejected this notion, suggesting that if the President were 

to engage in electronic surveillance outside the parameters of FISA, on judicial review, 

they wanted the Supreme Court to treat the President's actions as under Justice Jackson's 

third category in Youngstown: against the expressed intent of Congress. The Senate 

view carried. 

The TSP turned out to be more far-reaching than initially acknowledged. Five 

months after the initial revelations, on May 11, 2006, a USA Today article detailed how, 

since 9/11, the country's largest telecommunications companies had been secretly 

providing customers' domestic calling records to the NSA for analysis. AT&T, Verizon, 

and BellSouth were implicated in the report. 196 Once again, the White House defended 

the program, stating that no domestic surveillance is conducted without court approval. 

190 U.S. Department of Justice, Legal Authorities Supporting the Activities of the national Security Agency 

Described by the President, at 2 (Jan. 19, 2006) (available at 

http://www.usdoj.gov/opa/whitepaperonnsalcgalauthorities.pdf). 

191 U.S. Department of Justice, Legal Authorities Supporting the Activities of the national Security Agency 

Described by the President, at 2 (Jan. !9, 2006) (available at 

http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf). See also Youngstown Sheet & Tube Co. v. 

Sawyer, 343 U.S. 579,635-638 (1952) (Jackson, J., concurring). 192 U.S. Department of Justice, Legal Authorities Supporting the Activities of the national Security Agency 

Described by the President, at 27 (Jan. 19, 2006) 

http://www.usdoj.gov/opa/whitcpaperonnsalegalauthorities.pdf. 

193 Authorization for the Use ofMilitmy Force (AUMF), Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001). 194 50 U.S.C. § 1811 (2006) (electronic surveillance); 50 U.S.C. § 1829 (2006) (physical search), 50 U.S.C. 

§ 1844 (2006) (pen/trap) ("Notwithstanding any other law, the President, through the Attorney General, may 

authorize [electronic surveillance, physical search, or pen/trap] to acquire foreign intelligence information for 

a period not to exceed 15 calendar days following a declaration of war by Congress.") 195 Foreign Intelligence Surveillance Act of 1978, H.R. Rep. No. 1720, 95th Cong., 2d Sess. at 45 (1978) 

(Conf. Rep.). 

" 6 Leslie Cauley, NSA Has Massive Database of Americans' Phone Calls, USA TODAY, May 11, 2006, 

available at http://usatoday30.usatoday.com/news/washington/2006-05-1 0-nsa _ x.htm?csp=34. 

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123 

According to Dana Perino, deputy White House Secretary, the appropriate members 

of Congress had been bricfed. 197 Nevertheless, the news seemed to take the thenChairman of the Senate Judiciary Committee, Senator Arlen Specter (R-PA) by 

surprise. 198 Senator Patrick Leahy (D-VT) sounded similarly incredulous, railing against 

the lack of congressional oversight and suggesting that the media was doing rather a 

better job of it than the legislature. "Are you telli~ me that tens of millions of 

Americans are involved with a! Qacda?" Leahy asked. 1 "These are tens of millions of 

Americans who are not suspected of anything ... Where does it stop?"200 He held up a 

copy of the newspaper and added, "Shame on us for being so far behind and being so 

willing to rubber stamp anything this administration does. We ought to fold our tents."201 

General Michael V. Hayden, NSA director 1999-2005, defended the program to 

Congress and to the public by saying that the NSA was only targeting international 

communications and only those U.S persons suspected of ties to terrorism. 202 

According to Hayden, attorneys inside and outside the agency considered that the 

program was constitutional-and vital to U.S. national security.203 Hayden's language 

was strikingly similar to Church Committee hearings and Lt. Gen. Lew Allen Jr.: "This 

activity was reviewed by proper authority within NSA and by competent external 

authority ... "

204 A major difference, of course, was that in the interim Congress had 

passed FISA, precisely to prevent this type of large-scale collection of information. 

In light of growing tension about the program, in 2007 the NSA discontinued it.205 In 

April of that year, the Director of National Intelligence J.M. McConnell submitted a 

proposal to Congress to amend FISA to make it easier for the executive branch to target 

U.S. interests abroad. Four months later, Congress passed the Protect America Act 

("PAA''), easing restrictions on the surveillance of foreigners where one (or both) parties 

were located overseas.206 The statute removed FISC from supervising the interception of 

communications that began or ended in a foreign eountry. In its place, the Attorney 

General and the Director of National Intelligence could authorize, up to one year, the 

acquisition of communications concerning "persons reasonably believed to be outside the 

United States", where five criteria were met: 

1. there were reasonable procedures in place for determining that the acquisition 

concerns persons reasonably believed to be located outside the United States; 

2. the acquisition did not constitute electronic surveillance (meaning it did not 

197 !d. 

198 Id(reporting Specter as saying that "he would call the phone companies to appear before the panel 'to find 

out exactly what is going on."') 199 !d. 

200 Id 

201 !d. 202 See, e.g., Jim Sensenbrenner, Directing the Attorney General to Submit to the House of Representatives 

all Documents in the Possession of the Attorney General Relating to Warrantless Electronic Surveillance of 

Telephone Conversations and Electronic Communications of Persons in the United States Conducted by the 

National Security Agency, H.R. REP. No. 109-382 (2006) (citing, inter alia, Attorney General Alberto 

Gonzales and General Michael Hayden, Principal Deputy Director for Nationallntelligence, Press Briefing 

(Dec. 19, 2005); NSA Director General Hayden Press Conference (Jan. 23, 2006). 203 !d. 

204 The National Security AgenG~V and Fourth Amendment Rights: Hearings B~(ore the Select Comm. to Study 

Governmental Operations with Respect to Intelligence Activities of the United States Senate, 94'h Cong. 22 

(1976). 

205 S. REP. No. 110-209, at 4 (2007); and Letter from Attorney General Alberto Gonzales to Senate Judiciary 

Committee Chairman Patrick Leahy and Senator Arlen Specter (Jan. 17, 2007). Note that these documents 

suggest that the program ran from just after the attacks of 9111 until January 2007). 206 Protect America Act, 2007, Pub. L. 110-55, § 2, 121 Stat 553. (Aug. 5, 2007) (amending FISA, 

§IOSB(a)(l)-(5)), codified at 50 U.S.C. §1805b (2006)). 

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124 

involve solely domestic communications); 

3. the acquisition involved obtaining the communications data from or with the 

assistance of a communications service provider who had access to 

communications; 

4. a significant purpose of the acquisition was to obtain foreign intelligence 

information; and 

5. minimization procedures outlined in the FISA would be used.207 

The P AA required the Attorney general to submit the targeting procedures to FISC and to 

certify that the communications to be intercepted were not purely domestic in nature. 208 

Once certified, however, FISC was given no option as to whether or not to grant the 

order. Twice a year the Attorney General would be required to inform the Intelligence 

and Judiciary Committees of the House and Senate of incidents or noncompliance with 

the directive issued by the Attorney General or Director of National Intelligence, 

incidents of noncompliance with FISC-approved procedures, and the numbers of 

certifications or directives issued during the reporting period.209 In addition, the PAA 

gave retroactive immunity to service providers to insulate them from civil liability. The 

PAA initially was to operate for six months.210 Congress then continued it until February 

17, 2008. 211 Congress eventually replaced the legislation with a more permanent 

measure: the FISA Amendments Act ("FAA").212 

The FAA empowers the Attorney General and the Director of National Intelligence 

to jointly authorize, for up to one year, "the targeting of persons reasonably believed to 

be located outside the United States to acquire foreign intelligence information."213 FISC 

annually reviews this certification but has no substantive role in the decision either to 

engage in the surveillance or to cease doing the same. Five limitations apply to the order 

issued by the AG and DNI: first, it "may not intentionally target any person known at the 

time of acquisition to be located in the United States." 214 Second, it "may not 

intentionally target a person reasonably believed to be located outside the United States if 

the purpose of such acquisition is to target a particular, known person reasonably 

believed to be in the United States."215 Third, it "may not intentionally target a United 

States person reasonably believed to be located outside the United States."216 Fourth, it 

"may not intentionally acquire any communication as to which the sender and all 

intended recipients are known at the time of the acquisition to be located in the United 

States."217 And fifth, the collection of such information "shall be conducted in a manner 

consistent with the fourth amendment to the Constitution of the United States."218 

207 !d. 208 Protect America Act, 2007, Pub. L 110-55, § 3, 121 Stat 552 (Aug. 5, 2007) (amending FISA § I05B(c), 

codified at 50 U.S.C. §1805c (2006). 209 Protect America Act, 2007, Pub. L 110-55, §3, 121 Stat 552 (Aug. 5, 2007) (amending F!SA §l05C). 210 Protect America Act, 2007, Pub. L 110-55, §6, 121 Stat 552 (Aug. 5, 2007). 211 Various bills were proposed in the interim. See, e.g., S. 2248 (2007). 212 FISA Amendments Act of2008, Pub. L 110-261, 122 Stat 2436 (July 10, 2008). 213 Foreign Intelligence Surveillance Act, "Procedures for Targeting Certain Persons Outside the United 

States Other Than United States Persons, Title VII, Section 702, codified at 50 U.S.C. § 188l(a) (2006). 

Except as otherwise noted, section 702 mirrors the definitions adopted in FISA for the terms "agent of a 

foreign power", "foreign intelligence information", "foreign power", and "person". 214 §1881b(l). 215 §1881b(2). 216 §188lb(3). 217 §1881b(4). 218 § 188lb(5). 

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The upshot is that Section 702 gives the NSA the authority to target non-U.S. persons 

located outside the United States at the time of the collection of data. 219 FAA brought the 

targeting of U.S. persons overseas, previously addressed via Section 2.3 of Executive 

Order 12333, within traditional FISA. Consistent with the overall approach of FISA, this 

shift provided a higher protections for U.S. persons. The FAA required, in addition, that 

the government adopt targeting and minimization procedures for review by FISC. The 

minimization procedures, in particular, restrict handling information concerning U.S. 

persons incidentally acquired under Section 702-including the retention and 

dissemination of such information. In December 2012, Congress passed, and the 

President signed, the FISA Amendments Act Reauthorization Act, extending Title VII of 

FISA through December 31, 2017.220 Absent intervening action by Congress, Title VII 

will automatically be repealed on that date. 221 Any orders in place as of that date will 

continue until their ordinary expiration. 

IV. NSA TELEPHONY METADATA COLLECTION UNDER §215 

On May 24, 2006, the Foreign Intelligence Surveillance Court approved an FBI 

application for an order, pursuant to 50 U.S.C. §1861, requiring telecommunications 

providers to tum over all telephony metadata to the National Security Agency. 222 Over 

the next seven years, FISC issued orders renewing the program thirty-four times. 223 As 

FISC acknowledged in classified rulings: 

(N]early all of the call detail records collected pertain to communications of nonU.S. persons who arc not the subject of an FBI investigation to obtain foreign 

intelligence information, are communications of U.S. persons who are not the 

subject of an FBI investigation to protect against international terrorism or 

clandestine intelligence activities, and are data that otherwise could not be legally 

captured in bulk by the govemment.224 

This program remained secret until a combination of the Snowden documents and FOIA 

litigation launched by the Electronic Frontier Foundation forced key documents into the 

219 In exigent circumstances, the Attomey General and the DNI may authorize an immediate acquisition 

under Section 702; however, they must then submit a certification to the FISC as soon as practicable, but in 

no event later than seven days after they determined the existence of such exigent circumstances. 22° Foreign Intelligence Surveillance Act (FISA) Amendments Act Reauthorization Act of2012, Pub. L. No. 

112-238, 126 Stat. 1631. 221 50 U.S.C.S. §1881 note (LexisNexis Supp. Apr. 2013). 222 In reApplication of the Fed. Bureau of Investigation for an Order Requiring the Prod. ofTangib1e Things 

from [Telecommunications Providers] Relating to [REDACTED], Order, No. BR-05 (FISA Ct. May 24, 

2006), available at )lttps://www.ct1:org!sitcs/default/files/filcnode/dockct 06-05 l dec20 I rcdacted.cx -

__ og_O.p_df(released by court order as part of the Electronic Frontier Foundation's FOIA litigation). Note 

that the specific telecommunications company from which such records were sought were redacted, as well 

as the remaining title; however, the govemment also released an NSA report that provided more detail on the 

title of the Order. OFFICE OF THE INSPECTOR GEN., NAT'L SEC. AGENCY/CENT. SEC. SERV., ST-06-0018, 

REPORT ON THE ASSESSMENT OF MANAGEMENT CONTROLS FOR IMPLEMENTING THE FOREIGN INTELLIGENCE 

SURVEILLANCE COURT ORDER: TELEPHONY BT.:SINESS RECORDS (Sept. 5, 2006) (see page 94 of 1846 and 

1862 Production, Mar. 5, 2009), available at 

l}_t_l]l:! !" -ww. dn i. "QY ifi I es/documen tsl secti onlpu b Feb %2 0 I 2%2 02009%2 OM emoJ_[l]ldum%20ot" o20 US .pdf. 

For purposes of a more precise citation, I draw from both sources. 223 Administration White Paper: Bulk Collection of Telephony Metadata under Section 215 of the USA 

Patriot Act 2 (Aug. 9, 20 13), available at https://www.documcntcloud.org'documents/750211-

~dministration-;::hite-paper-scct[on-215.ht;;l [hereinafter "Section 215 Whit~-Paper"-].---

224 ln reProduction of Tangible Things From [REDACTED], Order, No. BR 08-13, at12 (FISA Ct Mar. 2, 

2009), available at 

htrp:/'w'A·w.dn_[JLQ_vitllesl_d_ocuments/section/pub March%202%202009%2Q_Qrdcr%2,Qfrom%20FIS(dl_Qf 

(emphasis in original). 

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126 

public domain. 225 In response, the Obama Administration issued statements, fact sheets, 

redacted FISC opinions, and even a White Paper, acknowledging the existence of the 

program and arguing that it is both legal and Constitutional. 

According to these document, the purpose of the telephony metadata program is to 

collect information related to counterterrorism and foreign intelligence. 226 The 

information includes all communications routing information, including (but not limited 

to) session identifying information (e.g., originating and terminating telephone number, 

identity of the communications device, etc.), trunk identifier, and time and duration of the 

call.227 The metadata collected as part of this program does not include the substantive 

content of communications [as defined by 18 U.S.C. §2510(8)], nor does it include 

subscribers' names, addresses, or financial information.228 

Although many of the details about the telephony metadata program remain cloaked 

from view, from what has been made public by the government, it appears that the 

Government takes all information obtained and feeds it into a bulk data set, which is then 

queried with an "identifier", referred to as a "sced"229 The NSA uses both international 

and domestic identifiers. 230 

FISC requires that the NSA establish a "reasonable, articulable suspicion" that a seed 

identifier used to query the data be linked to a foreign terrorist organization before 

running it against the bulk data. Once obtained, infom1ation responsive to the query can 

be further mined for information. The NSA can analyze the data to ascertain second- and 

third-tier contacts, in steps known as "hops": 

The first "hop" refers to the set of numbers directly in contact with the seed 

identifier. The second "hop" refers to the set of numbers found to be in direct 

225 Electronic Frontier Foundation v. U.S. Dep't of Justice, No. 4:11-cv-05221-YGR, at 2, 'IJ1(b) (N.D. Cal. 

Jul. 19, 2013) (order responding to the request for records related to Section 215 as narrowed by negotiation 

between the parties in the litigation, i.e., orders and opinions of the FISC issued from January 1, 2004 to June 

6, 2011, containing a significant legal interpretation of the government"s authority or use of its authority 

under Section 215; and responsive "significant documents, procedures, or legal analyses incorporated into 

FISC opinions or orders and treated as binding by the Department of Justice or the National Security 

Agency."). 

220 See. e.g., Section 215 White Paper, supra note 223, at 3 ("The Government cannot conduct substantive 

queries of the bulk records for any purpose other than counterterrorism."); id. at 4, "Query results can be 

further analyzed only for valid foreign intelligence purposes.") 227 ld at 2. 

m But note that the same arguments brought by the government in support of the telephony metadata 

program would support building similar databases of subscribers' and customers' financial records. See 

Section 215 White Paper, supra note 223, at 3. In addition, the Aug. 9, 2013 White Paper is careful to note 

that the government does not collect cell phone locational information "pursuant to these orders." ld 

However, the same arguments that support the telephony metadata program would support the collection of 

p.recisely this information under other FISC orders. 

-"Section 215 White Paper, supra note 223 at 3. Note that although the White Paper uses telephone 

numbers as an example of an identifier, it is conceivable that various other identifiers may be used. In a 

recently-released memorandum, for instance, the government refers to "bins" or "zip codes", suggesting that 

the types of queries can be significantly broad. See Memorandum of the United States In Response to the 

Court's Order Dated Jan. 28,2009 at 9, In re Prod. of Tangible Things from [REDACTED], No. BR 08-13 

(FISA Ct. Feb. 17, 2009), available at 

http: '/v.,"W\V. dn i. e:_9v/ fi ~~~/9ocuments/ secti Ql}/pub F cb%20 12%2 02 009~1o20 M_~m orandum%20of'>92 0 U ~~­

The Guardian, in turn, reports that the term "identifiers" includes information such as names, telephone 

numbers, email addresses, IP addresses, and usernames. See James Ball & Spencer Ackerman, NSA Loophole 

Allows Warrantless Search for U.S. citizens' emails and phone calls, THE GUARDIAN (Aug. 9, 2013, 12:08 

PM), h!!.ru'lv~··ww.thcguar.Qjan.com/world/2Q) 3/aug/09/nsa~loophole-\"''arrantless-searches-e:plail-calls 

(containing screen shot of classified document). ·----·-

230 Memorandum of the United States In Response to the Court's Order Dated Jan. 28, 2009 at 8, 10, In re 

Prod. of Tangible Things From [REDACTED], No. BR 08-13 (FISA Ct. Feb. 17, 2009), available at 

htt.R :/h:nn~y. dn i. ~y lfi 1 q/ documents/ sccti on/pub F eb%2 Q) 2 %,202009%~2 0 M em_orandum ':/o 'J Oof'~~~2 0 U S~Q_Qf. 

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127 

contact with the first "hop" numbers, and the third "hop" refers to the set of 

numbers found to be in direct contact with the second "hop" numbers.231 

It appears that, initially, neither FISC nor the NSA limited the number of "hops" that 

could be undertaken. It was not until March 2009 that the Government implemented 

software changes to its system to limit the number of hops permitted to three.232 

As a practical matter, what this means is that the NSA currently understands the 

primary order as authorizing the agency to retrieve information as many as three tiers 

away from the initial identifier. 233 The government refers to this process as "automated 

chaining." 234 These results can then be further queried "for foreign intelligence 

purposcs."235 In some cases, this information can then be forwarded to the FBI for 

further investigation, including using the information thus obtained for applications for an 

electronic intercept order under Title I of the Foreign Intelligence Surveillance Act. 236 

Like the programs that existed prior to the Church Committee hearings, the range of 

targets has gradually expanded. Following the initial order, on at least three occasions, 

the government obtained authorization to expand the telephone identifiers that the NSA 

could query. 237 And like the programs that Jed to the creation of FISA in the first place, a 

significant focus has been on domestic communications. 

Since the advent of the program, FISC has understood "that the vast majority of the 

call-detail records provided are expected to concern communications that are (i) between 

the United States and abroad; or (ii) wholly within the United States, including local 

telephone calls."238 The government laid out its rationale: 

International terrorist organizations and their agents use the international 

telephone system to communicate with one another between numerous countries 

all over the world, including to and from the United States. In addition, when 

they are located inside the United States, terrorist operatives make domestic U.S. 

telephone calls. The most analytically significant terrorist-related 

communications arc those with one end in the United States or those that are 

purely domestic, because those communications are particularly likely to identify 

suspects in the United States-whose activities may include planning attacks 

against the homeland.239 

The program is thus designed to obtain foreign intelligence or to protect against 

international terrorist threats in the United States and overseas. Under the statute, the 

231 Section 215 White Paper, supra note 223, at 3-4. 232 Memorandum of the United States In Response to the Court's Order Dated Jan. 28, 2009 at 20, In rc Prod. 

of Tangible Things From [REDACTED], No. BR 08-13 (FISA Ct. Feb. 17, 2009), available at 

~./;\nnv .dn i .l!ov/fi les/ documents/section/pub F eb~~-~0 1 2 %2Q.J 009~};)20 r0smorand u n}.~··:O.~_Qof'O;(l-4Q1L~~L 

Section 215 White Paper, supra note 223, at 4. 234 Memorandum of the United States In Response to the Court's Order Dated Jan. 28, 2009 at 10, In re Prod. 

of Tangible Things From [REDACTED], No. BR 08-13 (FISA Ct. Feb. 17, 2009), available at 

~tp://w~w.dni.gov/filcs~,documents/scction/pub Feb~,'fl2012%207009%20Nlcmorandum~/o~Oot~~~010US.p9f. 

Section 215 White Paper, supra note 223, at 4. 236 !d. 

237 See generalZv Memorandum of the United States In Response to the Court's Order Dated Jan. 28, 2009 at 

4 n. 3, In re Prod. ofTangible Things From [REDACTED], No. BR 08-13 (FISA Ct. Feb. 17, 2009), 

available at 

!1 ttp :/ /www. dni. !:!.o~~JIIc~(Qocum e!ilil:§~sti onLQub f e b%20 12 (;i202 009~ (,20M emorausJu m %20of%~0J).§...:n4f 

("Authorizations after this matter was initiated in May 2006 expanded the telephone identifiers that NSA 

could query to those identifiers associated with [REDACTED] see generally docket number BR 06-05 

(motion to amend in August 2006) ... docket number BR 07-10 (motion to amend granted in June 2007). The 

Court's authorization in docket number BR 08-13 approved querying related to [REDACTED] Primary 

Order, docket number BR 08-13, at 8."). 238 /d. at 2 n. 1. 239 Section 215 White Paper, supra note 223, at 3. 

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data obtained is understood as "presumptively relevant to an authorized investigation" 

where the Government can establish that the information pertains to (a) a foreign power 

or an agent of a foreign power, (b) the activities of a suspected agent of a foreign power 

who is the subject of such authorized investigation, or (c) an individual in contact with, or 

known to, a suspected agent of a foreign power who is the subject of an authorized 

investigation.240 

Statutory requirements are designed to protect against the collection of information 

on U.S. persons. Indeed, the statute limits the scope to obtaining foreign intelligence 

information "not concerning a United States person".241 Where a U.S. person is involved, 

it must specifically be "to protect against international terrorism or clandestine 

intelligence activities."242 

Despite special protections, the collection of information relating to U.S. persons, 

who are not themselves the target of any investigation, is central to the program. Indeed, 

from the beginning, both the government and the Court were fully aware that, as a result 

of the broad approach-namely, the collection of all information, including that of a 

purely local nature-such information would be obtained.243 "Ordinarily," Judge Reggie 

Walton later wrote, "this alone would provide sufficient grounds for a FISC judge to 

deny the application."244 But in the face of Executive Branch claim, under oath, that the 

program was vital for U.S. national security, the Court acquiesced, requiring only that the 

Executive follow certain procedural protections. 245 These protections failed to prevent 

abuses. 

The NSA's telephony metadata program contradicts FISA's language, design, and 

purpose. To understand it otherwise would be to vitiate the statute in terms of Congress' 

intent in introducing FISA and the general orientation of the statute, as well as the 

specific statutory restrictions placed on the intelligence agencies and duties assigned to 

the Foreign Intelligence Surveillance Court. The program also raises constitutional 

concerns with regard to search and seizure. 

V. BULK COLLECTION Rl.JNS CONTRARY TO FISA's GENERAL APPROACH 

The telephony metadata program violates the general intent of Congress in enacting 

FISA-and the approach adopted in the statute itself-in two important ways: first, in its 

24" 50 U.S.C. § 1861(b)(2)(A)(i)-(iii) (2006). 241 § 186l(b)(2)(A). 242 § 1861(b)(2)(A) (2006 & Supp. V. 2012). 243 Id See In re Prod. of Tangible Things From [REDACTED], Order Regarding Preliminary Notice of 

Compliance Incident Dated Jan. 15,2009, No. BR 08-13, at 2 n. 1 (FISA Ct. Jan 28, 2009), available at 

http:/iw~·w.dJlL.R~]les/qocuments/~_c;t_!Q!lL12ub Jan°;~,202~.~ o202009~/;;200r_der%20Regarding~;Q20Prelim%2 

0Notice%20of;·o20Compliance.pdf ("As the government noted in its application, '[i]fauthorized, the 

requested order will result in the production of call detail records pertaining to [REDACTED] telephone 

communications, including call detail records pertaining to communications of U.S. persons located within 

the United States who are not the subject of any FBI investigation."). 244 In re Prod. of Tangible Things from [REDACTED], Order, No. BR 08-13 at 12 (FISA Ct. Mar. 2, 2009), 

available at 

~!y,ww .d!li gov.'!iJ.es I d ocumcnts/ section/pub March %2 02 ~ j,2 0 2009%200rder%20 from %201' I SC jJcl£ 245 ld (stating that the Court had authorized the bulk collection of call detail records based upon: "(l) the 

government's explanation, under oath, of how the collection of and access to such data are necessary to 

analytical methods that are vital to the national security of the United States; and (2) minimization procedures 

that carefully restrict access to the BR metadata and include specific oversight requirements. Given the 

Executive Branch's responsibility for and expertise in determining how best to protect our national security, 

and in light of the scale of this bulk collection program, the Court must rely heavily on the government to 

monitor this program. ."). 

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rejection of particularization at the point of acquisition of information; and, second, with 

regard to the role played by the Foreign Intelligence Surveillance Court. 

A. Particularization in Place of Broad Surveillance 

The telephony metadata program lacks the particularization that marks Congress' entire 

approach to domestic foreign intelligence gathering as articulated in the Foreign 

Intelligence Surveillance Act. Specifically, FISA rejects the wholesale collection of 

domestic information, insisting instead on minimization; relies on the prior targeting of 

foreign intelligence targets to justify surveillance; provides U.S. persons a heightened 

level of protection; and seeks to minimize the acquisition (not just the retention and 

dissemination) of information. 

1. Wholesale Collection of Information 

Project MINARET, which represented precisely the type of surveillance program that 

FISA was designed to forestall, was not nearly as extensive as the telephony metadata 

program at issue in this case. Over the course of Project MINARET, for instance, the 

watch list expanded to include approximately 1,650 U.S. citizens in tota1. 246 At no time 

were there more than 800 U.S. citizens' names on the list, out of a population of about 

200 million Amcricans.247 

Today, in contrast, there are approximately 316 million Americans, United States 

Census Bureau, U.S. and World Population Clock (Aug. 28, 2013), 

http://www.census.gov/popclock/, most of whom would have been subject to the Verizon 

(and similar) orders issued by the Foreign Intelligence Surveillance Court ("FISC"). This 

number eclipses the total number of U.S. citizens subject to one of the most egregious 

programs previously operated by the NSA, which gave rise to FISA in the first place. 

The telephony program also goes substantially beyond the previous surveillance 

operation in its focus on calls of a purely local nature. According to the Director the 

National Security Agency, Project MINARET did not monitor entirely domestic 

conversations.248 

In contrast, the Order issued in April 2013 by FISC specifically requires the 

collection of information "wholly within the United States, including local telephone 

calls."249 Set to expire July 19, 2013, the Office of the Director of National Intelligence 

has confirmed that FISC has again renewed the ordcr.250 

As discussed above, Congress designed the statute to be used in specific cases of 

foreign intelligence gathering. By limiting the targets of electronic surveillance, requiring 

probable cause, disallowing investigations solely on the basis of otherwise protected first 

amendment activities, and insisting on minimization procedures, Congress sought to 

restrict agencies' ability to violate U.S. citizens' privacy. The business records provision 

built on this approach, adopting the same definitions that prevailed in other portions of 

the statute, and requiring that agencies obtain orders to collect information on individuals 

believed to be foreign powers or agents of a foreign power. Congress later deliberately 

246 !d. 

247 I d. at 30, 33-34. 248 Church Committee Report, Vol. 5, supra, at 36 (testimony of General Lew Allen, Director, National 

Security Agency). 249 In reApplication of the Fed. Bureau oflnvestigation for an Order Requiring the Prod. of Tangible Things 

from Verizon Bus. Network Servs., Inc., Secondary Order, No. BR 13-80 (FISA Ct. Apr. 25, 2013). 250 Press Release, Office of the Dir. of Nat'! Intelligence, Foreign Intelligence Surveillance Court Renews 

Authority to Collect Telephony Metadata (July 19, 2013), http://ww~d!lL!i2Y/insJex_.Qllp!nc_w_s.r()O.J11/[)feS§_­

rel eascs 1 I 91 -press-r~k,Is.,_s- 20 1318 ~.:f9E<;lg)l- i ntell i ecnce:~u_ryei II ancC-:f.Q\Ifl -rcnews-authori tv-to-collect- !.<:kpj1_ony-metadata. -----

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130 

inserted "relevant" into the statute to ensure the continued specificity of targeted 

investigations. 

In addition, Congress empowered the FISC to consider each instance of placing an 

electronic wiretap. The NSA's program, in contrast, delegates such oversight to the 

executive, leaving all further inquiries of the databases to the agency involved. Once the 

NSA collects the telephony metadata, it is the NSA (and not the FISC) that decides which 

queries to use, and which individuals to target within the database. 

This change means that the FISC is not performing its most basic function: protecting 

U.S. persons from undue incursions into their privacy. Instead, it leaves the 

determination of whom to target to the agency's discretion. Traditional FISA, as well as 

authorities under §702, depend upon the criteria in the statute being met prior to 

collection of information. That is, the authorities apply at the moment data is acquirednot when it is subsequently analyzed for more information. 

Although the government argues that intelligence is not acquired until it is mined for 

more infonnation, or until a human operator is involved in the analysis, this is neither the 

statutory language nor the government's own internal position. The NSA's own 

minimization procedures with regard to §702 state: 

In addition to the definitions in sections I 0 I and 701 of the Act, the following 

definitions will apply to these procedures: 

(a) Acquisition means the collection by NSA or the FBI through electronic 

means of a non-public communication to which it is not an intended party ... 251 

2. Prior Targeting to Justify Collection of Data 

The government has indicated that the information obtained from this program is 

important because, "by analyzing it, the Government can determine whether known or 

suspected terrorist operatives have been in contact with other persons who may be 

engaged in terrorist activities, including persons and activities within the United 

States."252 The government sees the enormous number of records as central to the success 

of the program. 253 Once the records are obtained-i.e., once the "haystack" is createdthe government can then go about finding out who the threats are--i.e., the proverbial 

needles in the haystack.254 

This process is exactly backwards. The whole point ofFISA is for the government to 

first identify the target, and then to use this to obtain information. In contrast, the 

government is now arguing that it can obtain information, as a way of figuring out who 

the targets should be. This runs directly contrary to FISA' s design. 

3. Heightened Protections for U.S. Persons 

In addition, as detailed above, there are myriad ways in which FISA creates extra 

protections for U.S. persons. The statute itself came from revelations about the rather 

cavalier manner in which the intelligence agencies were treating Americans' right to 

25l Eric H. Holder, Jr., Att'y General of the United States, Minimization Procedures Used by the National 

Security Agency in Connection with Acquisitions of Foreign Intelligence Information pursuant to Section 

702 of the Foreign Intelligence Surveillance Act of 1978, as Amended (Jan. 8, 2007), available at 

http:/ /epic. org/20 13 /06/nsa-targeting-and-minimization.html. 252 Section 215 White Paper, supra note 223, at 2. 253 ld at 4 ("It would be impossible to conduct these queries effectively without a large pool of telephony 

metadata to search, as there is no way to know in advance which numbers will be responsive to the 

authorized queries."). 254 See, e.g., How Disclosed NSA Programs Protect Americans, and Why Disclosure Aids Our Adversaries: 

Hearing Before the H. Permanent Select Comm. on Intelligence, !13th Cong. (2013) (testimony of Deputy 

Att'y Gen. James Cole), available at h.t!Q:i.'i!1tcllig~cc.hous~.gqvi\'ideo/how-disclosed-nsa-progrmnsQf..QJect-amcricans-and-\\·hy-disclosurc-aids-our-adversarics. 

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131 

privacy. These protections related to the targeting of U.S. persons-not just the later 

analysis and dissemination of information. 

Outside of minimization procedures relating to the downstream manipulation and 

dissemination of information, the telephony metadata program does not recognize any 

protection for U.S. persons at the moment of data acquisition. This, too, contradicts the 

way the statute was structured. 

B. Role of the Foreign Intelligence Court 

In at least three important ways, the Foreign Intelligence Surveillance Court no longer 

serves the purpose for which it was designed. First, it was created to determine whether 

sufficient evidence existed to target individuals within the United States, prior to the 

collection of such information. But the Court has abdicated this responsibility to the 

executive branch generally, and to the NSA in particular. Continued noncompliance 

underscores concern about relying on the intelligence community to protect the Fourth 

Amendment rights of U.S. persons. Second, Congress did not envision a law-making 

role for the Court. Its decisions were not to serve as precedent, nor was the Court to offer 

lengthy legal analyses, crafting in the process, for instance, exceptions to the Fourth 

Amendment warrant requirement or defenses of wholesale surveillance programs. Third, 

instead of being a neutral, disinterested magistrate, the court appears to have become 

representative of one political approach. Question exists about the extent to which it acts 

as an effective check on the exercise of surveillance authorities. The manner of 

appointment of judges, lack of technical expertise, and absence of an effective adversarial 

process has here impacted perceptions-and potentially the workings-of the Court. 

1. Reliance on NSA to Ascertain Reasonable, Articulable Suspicion 

FISC's primary order authorizing the collection of telephony metadata required that 

designated NSA officials make a finding that there is "reasonable, articulable suspicion" 

("RAS") that a seed identifier proposed for query is associated with a particular foreign 

terrorist organization prior to its use. Documents recently released as a result of court 

orders in a related FOIA case establish that for nearly tluee years, the NSA did not follow 

these procedures255 -despite the fact that numerous officials at the agency were aware of 

the violation.256 Noncompliance incidents have continued. Collectively, these incidents 

raise serious question as to whether FISC is performing the functions it was designed to 

address. 

a. Failure to Report Initial Noncompliance 

255 In re Prod. of Tangible Things From [Redacted], Order Regarding Preliminary Notice of Compliance 

Incident Dated Jan. 15, 2009, No. BR 08-13 (FISA Ct. Jan. 28, 2009), available at 

http:/ /w\\·w. dn 1. rrov/fil es/ d9ct~~11cnts/section/pub Jan ~:(,:202 8 (Yo2 02 009~!()2 00rdcr(;{,2 0 Regard ing%2 0 Pre I i m%2 

0Notice%20of%20Compliance.pdt; see also DNI Clapper Declassifies Intelligence Community Documents 

Regarding Collection Under Section 501 of the Foreign Intelligence Surveillance Act (FISA), Sept. 10,2013, 

available at http://icontherecord.tumblr.com/. 256 Declaration of Lieutenant General Keith B. Alexander at 25, In re Prod. of Tangible Things from 

[REDACTED], No. BR 08-13 (FlSA Ct. Feb. 13, 2009), available at 

http :1/www. dn i. gov 1 fi 1 es /documents/ sccti on/pub Fe b~/020 1 2 ~~o2 0 2009%20fv1 cmorandum ~lo20ot ~·020 US. pdf 

(listing seven people in the Signals Intelligence Directive, two from the Office of the General Counsel, and 

one additional person [REDACTED] who knew, or may have known of the problem since May 2006). Three 

additional people from the General Counsel's office and from SID became aware of the use of non-RASapproved identifiers via email on May 25, 2006. !d. at 26. The DNI noted an additional "indeterminate 

number of other NSA personnel who knew or may have known the alert list contained both RAS and nonRAS selectors. !d. at 26-27. 

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132 

Although the NSA had been acting in contravention of the order since May 2006, it was 

not until early 2009, when representatives of the Department of Justice met with NSA 

representatives to be briefed on the NSA's handling of the telephony metadata, that the 

illegal behavior was brought to FISC's attention. 257 During the briefing and in 

subsequent discussions, DOJ representatives inquired about the alert process. Learning 

of the process being used, DOJ personnel expressed concern that the program had been 

misrepresented to FISC. 258 The NSA had been using identifiers employed to collect 

information pursuant to Executive Order 12333-not FISA-to search the telephony 

database. 259 

DOJ informed FISC within a week of the meeting that the government had been 

querying the business records in a manner that contravened both the original order and 

sworn statements of several Executive Branch officials.260 The Court was not amused. 

257 kf. at 27 

258 ld. 259 NSA's general S!G!NT authorities derive from (I) Exec. Order No. 12333, §1.7, 46 Fed. Reg. 59941 

(Dec. 4, 1981) (authorizing the NSA to "Collect (including through clandestine means), process, analyze, 

produce, and disseminate signals intelligence information for foreign intelligence and counterintelligence 

purposes to support national and departmental missions"); (2) Foreign Wireless and Radio Monitoring, 

National Security Council Intelligence Directive 6 (Dec. 12, 1947) available at 

http://I,V\\'W,foia.cia.gov/sites/default/files/document conversionsi50'NSCID No 6 Foreign \Vircless and 

Radio Monitoring 12 Dec 1947.PDF (noting that the DC! shall conduct all Federal monitoring of foreign 

propaganda and press broadcasts required for the collection of intelligence information to meet the needs of 

all Departments and Agencies in connection with the National Security and that the DC! shall disseminate 

such intelligence information to the various Departments and Agencies which have an authorized interest 

therein); and (3) Department of Defense Directive 5100.20 (Jan. 26, 2010) available at 

http://www .dtic.millwhs 'directives/corres/pdt/51 0020p.pdf. ("[T]he National Security Agency (NSA) is the 

U.S. Government (USG) lead for cryptology, and its mission encompasses both Signals Intelligence 

(SIGINT) and Information Assurance (lA) activities. The Central Security Service (CSS) conducts SIGINT 

collection, processing, analysis, production, and dissemination, and other cryptologic operations as assigned 

by the Director, NSA/Chief, CSS (DIRNSA/CHCSS). NSA/CSS provides SIGINT and lA guidance and 

assistance to the DoD Components, as well as national customers ... "). In addition, some, but not all, of the 

SIGINT activities undertaken by NSA are governed by FISA. Declaration of Lieutenant General Keith B. 

Alexander at 34, In re Prod. of Tangible Things from [REDACTED], No. BR 08-13 (FISA Ct. Feb. 13, 

2009), available at 

http ://Wl\·w .dn i. gov 1ti 1 es .'.documen~-~-~')ectio n/puQ._J'eb%20 12 %~ 02009%20 M em ora n dum~Yo20o~'020 US. QQ.f. 

When executing its SIGINT mission, NSA is only authorized to collect, retain, or disseminate 

information concerning U.S. persons consistent with Attorney General guidelines. The current procedures 

approved by the AG are located in the Department Defense Regulation 5240.1-R, Procedures Governing the 

Activities of DOD Intelligence components that Affect United States Persons at 24-37 (Dec. II, 1982), as 

well as a classified annex to the regulation overseeing NSA 's electronic surveillance. Declaration of 

Lieutenant General Keith B. Alexander at 34, In Re Prod. of Tangible Things from [REDACTED], No. BR 

08-13 (FISA Ct. Feb. 13, 2009), available at 

http://v~·w\v .d n i. u:ov/fi I cs/ documcn ts 'secti qn 1 Q~-~9____.E e b%291.~-~i:f 02009~·'02 0 Me nJqrf.t.!}dum (:~;)2 O.Q!~Q~ .. Q!J S. pd t~ 

To administer the program, the NSA constructed two lists: the first, an "alert list," includes all 

identifiers (foreign and domestic) of interest to counterterrorism analysts. Memorandum of the United States 

In Response to the Court's Order Dated Jan. 28,2009 at 10, In re Prod. ofTangible Things from 

[REDACTED], No. BR 08-13 (FISA Ct. Feb. 17, 2009), available at 

http: 1/www .dni. gov 'fi I cs.' doc uments/sectionfpu b F ebf!io2 QJ ~ (~~1:,20 1 009°~)20 i\1 cmorandum ~~~£Qgf~t0 :wu S :12_9f. 

The second, the "station table", is a historieallisting of all telephone identifiers that had undergone a 

reasonable, articulable suspicion determination, including the results. I d. But see Declaration of Lieutenant 

General Keith B. Alexander at 9, In re Prod. of Tangible Things from [REDACTED], No. BR 08-13 (FISA 

Ct. Feb. 13, 2009), available at 

h!!12){~yww .d1Jig_gv/fi lcs/ docum ents/sectio n/pu b Fe b%20 1 2%:::02009%20 M emorand~:!!!! %20of'\:Q__~_9 US, p4J 

(referring to the first source as the "Address Database" and describing it as "a master target database of 

foreign and domestic telephone identifiers"). 260 In Re Prod. of Tangible Things From [REDACTED], Order Regarding Preliminary Notice of Compliance 

Incident Dated Jan. 15,2009, No. BR 08-13, at 2 (FISA Ct. Jan 28, 2009), available at 

37 
133 

Judge Reggie Walton expressed concern "about what appears to be a flagrant violation of 

its Order in this matter."261 The NSA had repeatedly misled the Court in its handling of 

the database. 262 FISC immediately issued an order, directing the NSA to undertake a 

comprehensive review of the NSA's handling of telephony metadata.263 It gave the 

government until Feb. 17, 2009 to file a brief to defend its actions and to help the Court 

to determine whether further action should be taken against the government or its 

rcprcsentati ves. 264 

The NSA initially admitted only "that NSA's descriptions to the Court of the alert list 

process ... were inaccurate and that the Business Records Order did not provide the 

Government with authority to employ the alert list in the manner in which it did."265 It 

further acknowledged, "the majority of telephone identifiers compared against the 

incoming BR metadata in the rebuilt alert list were not RAS-approved."266 The actual 

numbers, reported to FISC in February 2009, were staggering: as of January 15, 2009, 

"only I ,935 of the 17,835 identifiers on the alert list were RAS-approved."267 

It was not that the NSA was unaware of the requirements established by the statute 

and by the Court. The Attorney General had, consistent with the primary order, 

established minimization procedures, amongst which was the following: 

Any search or analysis of the data archive shall occur only after a particular 

known telephone number has been associated with [REDACTED][3] More 

specifically, access to the archived data shall occur only when NSA has 

identified a known telephone number for which, based on the factual and 

practical considerations of everyday life on which reasonable and prudent 

persons act, there are facts giving rise to a reasonable, articulable suspicion that 

the telephone number is associated with [REDACTED] organization; provided, 

however, that a telephone number believed to be used by a U.S. person shall not 

h!!Q:/·'www.9_!_~J:_gg.v/files/dg_c:_l~}~nts ,.sect!Q!l P~,b~J.3![!~/o20]8~··i)~J!~.Q_()9~-·;J+OOrdcr%~0R~garding%20P.~lim .'o2 

0Notice%20of%20Compliancc.pslf. 

261 !d. at 4. 262 See, e.g., OFFICE OF THE INSPECTOR GEN., NAT'L SEC. AGENCY/CENT. SEC. SERV., ST-06-0018, REPORT ON 

THE ASSESSMENT OF MANAGEMENT CONTROLS FOR IMPLEMENTING THE FOREIGN INTELLIGENCE SURVEILLANCE 

COURT ORDER: TELEPHONY BUSINESS RECORDS (Sept. 5, 2006) (sec page 94 of 1846 and 1862 Production, 

Mar. 5, 2009), available at 

http :1/\V\\'\V. dn i. gov /files/ docum cnts/ section ipu b F eb%J2 0 12%2 02 009%.2 0 M em Qnl ndum~/020o :rn;;,:zo U S.pdf 

("The management controls designed by the Agency to govern the processing, dissemination, data security, 

and oversight of telephony metadata and U.S. person information obtained under the Order are adequate and 

in several aspects exceed the terms of the Order."). 263 In rc Prod. of Tangible Things From [Redacted], Order Regarding Preliminary Notice of Compliance 

Incident Dated Jan. 15, 2009, No. BR 08-13 (FISA Ct. Jan. 28, 2009), available at 

b!~p::/~y~\·w:9_~~-_gQv t}lc~~-:QQf!:!_fr~c}1ts/~ff_!iQg:J~~~b _Lal}~j:l_Q_~~~-0~0~0.Q_9(~·i~OOr_dgr~~,~-lQJ~~g~r:4.i.Jl£%20P~!Lm /02 

0Notice %20of'%20C'omplianc~. 264 !d. at 2. 265 Memorandum of the United States In Response to the Court's Order Dated Jan. 28, 2009 at 2, In re Prod. 

of Tangible Things From [REDACTED], No. BR 08-13 (F1SA Ct. Feb. 17, 2009), available at 

b_t_!p~{{\\~yw.dni.~Q_~:/fiJ_cs/doct~l!1~!!~~~f!iQ_l!iJ?.\!.I2_feb%,~9-L~~l_Q~Q0.9~o20MemQL'!lldum(~,o2Q.qj}~OUS:flQf. 

266 !d. at 11; see also id. at 6. Note the NSA refers to FISC-authorized Business Record mctadata as "BR 

metadata". In re Prod. ofTangib1c Things from [REDACTED]. Order, No. BR 08-13, at 4 (FISA Ct. Mar. 2, 

2009) available at 

http :i/ww11 ·. dni. gov 'files' documcn_t~ 'section 'pub l'v1arch %2 02%20 2 009%2 OOrdcr%2 Ofrom %2 0 FISC. pdf. 261 Memorandum of the United States in Response to the Court's Order Dated Jan. 28,2009 at 1 I, In re Prod. 

of Tangible Things From [REDACTED], No. BR 08-I3 (FISA Ct. Feb. I 7, 2009), available at 

http:/ /11 ww.dni.uov!fi les 'documents'section 'pub F eb%20 12%202009%20Memorandum%20of%20US.pdt; 

see also Declaration of Lieutenant General Keith B. Alexander at 8, In re Prod. of Tangible Things from 

[REDACTED], No. BR 08-13 (FISA Ct. Feb. 13, 2009), available at 

http: /\VW\\ .dni. goy 'files/docum<;pts.'scction ipub f..;:;Q~ o20 l2%202009 ~'o20Mcmorandum'~~020ofO/o20US.pQf 

38 
134 

be regarded as associated with [REDACTED] solely on the basis of activities that 

are protected by the First Amendment to the Constitution. 268 

Nevertheless, apparently, neither the Signals Intelligence Directorate nor the Office of 

General Council had caught the fact that nearly 90 percent of the queries to the bulk 

dataset had been illega1.269 Nor had they realized that their reports to FISC claiming that 

only RAS-approved numbers were being run against the bulk metadata were false. 270 

In the meantime, the NSA had disseminated 275 reports to the FBI as a result of 

contaet chaining and queries of NSA's archive of telephony metadata.271 Thirty-one of 

these had resulted directly from the automated alert process.272 In a careful use of 

language, the government noted, "NSA did not identifY any report that resulted from the 

use of a non-RAS-approved 'seed' identifier."273 The government did not detail how 

complete the NSA had been in considering the reports; nor did it claim that none of the 

reports had resulted from non-RAS-approved identifiers.274 The government also did not 

address the dissemination of metadata reports within NSA and subsequent actions taken 

as a result of the process. 

268 Memorandum of the United States in Response to the Court's Order Dated Jan. 28, 2009, In re Prod. of 

Tangible Things from [REDACTED], No. BR 08-13 at 4, (FISA Ct. Feb. 17, 2009), available at 

http://w\\'\\' .dni.gov ifilesldocuments/section/pub F eb%120 l2%202009%20M emorandum%20ofY020U S.QQ_f 

(citing Order No. BT 06-05, at 5). 269 !d. at II ("Based upon NSA's recent review, neither NSA SID nor NSA OGC identified the inclusion of 

non-RAS-approved identifiers on the alert list as an issue requiring extensive analysis."). 270 See, e.g., NSA Report to the FISC, Aug. 18, 2006, docket number BR 06-05 (Ex. B to the Government's 

application in docket number BR 06-08), at 12-15, quoted in Memorandum of the United States In Response 

to the Court's Order Dated Jan. 28,2009 at 13, In reProduction of Tangible Things From [REDACTED], 

No. BR 08-13 (FISA Ct. Feb. 17, 2009), available at 

http://v-.'V.·\v.dni.!.!ov/files/documents/section/pub Feb %2012~/~202009~lo20Memorandum~~]Oof%20JJ.~ 

("As of the last day of the reporting period addressed herein, NSA had included a total of 3980 telephone 

numbers on the alert list, which include foreign numbers and domestic numbers, after concluding that each of 

the foreign telephone numbers satisfied the standard set forth in the Court's May 24, 2006 [Order] .... To 

summarize the alert system: every day new contacts are automatically revealed with the 3980 telephone 

numbers contained on the alert list described above, which themselves are present on the alert list either 

because they satisfied the reasonable articulablc suspicion standard, or because they are domestic numbers 

that were either a FISC approved number or in direct contact with a number that did so."). See also 

Declaration of Lieutenant General Keith B. Alexander at 7, In rc Prod. of Tangible Things from 

[REDACTED], No. BR 08-13 (FISA Ct. Feb. 13, 2009), available at 

http://~ww.dni.go~'files/documcnts/s~~r~~m/pub Fcb%2012%202009~ ~20Mcmorandum%20of%20US.pdf 

(reprinting the same report text and stating, "in short, the reports filed with the Court incorrectly stated that 

the telephone identifiers on the alert list satisfied the RAS standard. In fact, the majority of telephone 

identifiers included on the alert list had not been RAS approved ... "). 271 Memorandum of the United States In Response to the Court's Order Dated Jan. 28,2009 at I 7, In re 

Production of Tangible Things From [REDACTED], No. BR 08-13 (FISA Ct. Feb. 17, 2009), available at 

~~l~~:Y.~:2~~.dni.go,·,files/documents/section 'pub Fcb%2012~/~202009°/020rvtcmoran!}um~·020ot~/~.:£9USJ.t9.!; 

Declaration of Lieutenant General Keith B. Alexander at 42, In re Production of Tangible Things From 

[REDACTED], No. BR 08-13 (FISA Ct. Feb. 13, 2009), available at 

http: '/www .dni.gov/files/documcnts/section/pub _ F cb /~20 11rq_202009%20MemQ.~<!QPumil;Q20ofi'o20USJ!4f 

(further noting that the 275 reports provided to the FBI tipped a total of2,549 telephone identifiers as being 

in contact with identifiers used to query the system). 

mId. 

273 !d. at 17. 274 See also Declaration of Lieutenant General Keith B. Alexander at 36, In reProduction ofTangibie Things 

From [REDACTED], No. BR 08-13 (FISA Ct. Feb. 13, 2009), available at 

http ://v.,'ww. d n i. gov/fi J es/ documents/ sccti on 'pub F e~%20 11 o/0202002%20M emorandum %t20o t~'020 US. pdf 

("[The NSA] has. , . conducted a review of all 275 reports of domestic contacts NSA has disseminated as 

result of contact chaining [REDACTED] of the NSA 's Archive of BR FISA material. NSA has identified no 

report that resulted from the use of a non-RAS approved identifier as the initial seed identifier for chaining 

through the BR FISA material.") (internal footnotes omitted). 

39 
135 

Despite the gross violation of FISC's order, the Government argued that FISC should 

neither rescind nor modify its order.275 As required by FISC, the NSA had undertaken an 

end-to-end system engineering and process review (technical and operational) of the 

NSA's handling of BR metadata; it had undertaken a review of domestic identifiers to 

ensure that they are RAS-compliant; and it had undertaken an audit of all queries made of 

the BR metadata repository since November 1, 2008 with the purpose of determining if 

any queries had been made using non-RAS-approvcd identifiers.276 The NSA had again 

trained its employees and adopted new technologies to limit the number of "hops" 

permitted from an RAS-approved seed identifier to three.277 The government offered to 

take additional steps to avoid having the program shut down, all of which amounted to 

involving DOl's National Security Division more deeply in the telephony mctadata 

program. 278 

b. Further Noncompliance 

Although the January 2009 incident represents the first admission of noncompliance that 

was made public, it is far from the first - or only time that the NSA acted outside the 

scope of its authority to collect records under §215 of the USA PTRIOT Act. 279 

Recently-released documents provide myriad further examples. 

In September 2006, for instance, the NSA's Inspector General expressed concern that 

the agency was collecting more data than authorized under the order.280 (The NSA had 

been obtaining 16-digit credit card numbers as .well as names/partial names contained in 

the records of Operator-assisted calls. 281 ) It later emerged that an over-collection filter 

inserted in July 2008 failed to function. 282 

275 Memorandum of the United States In Response to the Court's Order Dated Jan. 28, 2009 at 2, 15-21, In re 

Production of Tangible Things From [REDACTED], No. BR 08-13 (FISA Ct. Feb. 17, 2009), available at 

.b!!J?.: '\vv.·w .dni.gov/files 'docume~ts/scction/pub Feb%20 12~/0202009~~20M e!llorandum0Al20of%20US.pdf. 

Note that No. BR 06-05 is the initial authorization of the telephony metadata program, May 24,2006. No. 

BR-08 was a renewal application, filed Aug. 18,2006. No. BR 08-13 is a subsequent authorization. The 

May 2006 order, however, has seven tabs for different docket numbers, all of which have been redacted, 

suggesting that there are other, related programs underway. 276 !d. at 19. 

m !d. at 20. 278 !d. at 20-21 (listing under "Additional Oversight Mechanisms the government Will Implement": (I) 

NSA's OGC consulting with NSD on "all significant legal opinions that relate the interpretation, scope and/or 

implementation" of FISC orders related to BR 08-13; (2) NSA's OGC providing NSD with copies of the 

mandatory procedures; (3) NSA's OGC promptly providing NSD with copies of all formal briefing and/or 

training materials; (4) arranging meetings among NSA's OGC, NSD, and NSA's SID prior to seeking 

renewal of the orders; (5) meetings once per period of future orders between NSA's OJG and NSD; (6) 

review and approval of all proposed automated query processes prior to implementation). 279 See. e.g .. Memorandum of the United States In Response to the Court's Order Dated Jan. 28, 2009, In Re 

Production of Tangible Things From [REDACTED], Docket Number BR 08-13, p. 19, available at 

http://wwYv.dni. !.!Qv/fj lcs 'document~/scctionipub F eb0l020 12 ~;,202009%20l"v1emonlllQum~/t~20~qt Vo20U S.pdf 

(Citing notice of compliance filed Jan. 26, 2009, which reports that between Dec. I 0, 2008, and Jan. 23, 

2009, two analysts conducted 280 queries using non-RAS-approved identifiers). 280 OFFICE OF THE INSPECTOR GEN., NAT'L SEC. AGENCY/CENT. SEC. SERV., ST-06-0018, REPORT ON THE 

ASSESSMENT OF MANAGEMENT CONTROLS FOR IMPLEMENTING THE FOREIGN INTELLJGENCE SURVEILLANCE 

COURT ORDER: TELEPHONY BUSINESS RECORDS (Sept. 5, 2006) (see page 95-96 of 1846 and 1862 

Production, Mar. 5, 2009), available at 

llttp:/lwww.dni.goviJilesidocumcntsise_c:tion/pub feb%201 ~%202009%20Mcnl.Qrandum'2:~:1.Qof%20l!~· 

(''[M]anagement controls do not provide reasonable assurance that NSA will comply with the following 

terms of the Order: 'NSA may obtain telephony metadata, which includes comprehensive communications, 

routing information, including but not limited to session identifYing information, trunk identifier, and time 

and duration of a call. Telephony metadata does not include the substantive content of any communications, 

or the name, address, or financial information of a subscriber or customer."'). 281 OFFICE OF THE INSPECTOR GEN., NAT'L SEC. AGENCY/CENT. SEC. SERV., ST-06-0018, REPORT ON THE 

ASSESSMENT OF MANAGEMENT CONTROLS FOR IMPLEMENTING THE FOREIGN INTELLIGENCE SURVEILLANCE 

40 
136 

On October 17, 2008, the government reported to FISC that, after FISC authorized 

the NSA to increase the number of analysts working with the BR metadata, and had 

directed that the NSA train the newly-authorized analysts, thirty one (out of 85) analysts 

subsequently queried the BR metadata in April 2008 without even being aware that they 

were doing so.283 The upshot was that NSA analysts used 2,373 foreign telephone 

identifiers to query the BR metadata without first establishing reasonable, articulable 

suspicion.284 Despite taking corrective steps, on December 11, 2008, the government 

notified the Court that an analyst had not installed a modified access tool and, resultantly, 

had again queried the data using five identifiers for which no reasonable articulable 

suspicion standard had been· satisfied.285 

Just over a month later, the government informed the Court that, between December 

10, 2008 and January 23, 2009, two analysts had used 280 foreign telephone identifiers to 

query the BR metadata without first establishing RAS. 286 

The process initiated in January 2009 identified additional incidents where the NSA 

had failed to comply with FISC's orders. 287 In February 2009 the NSA brought two 

further matters to the court's attention. The first centered on the NSA's use of one of its 

analytical tools to query the BR metadata, using non-RAS-approved telephone 

numbers. 288 This tool had been used sinee the Court's initial Order in May 2006 to 

search both the BR metadata and other NSA databases.289 Also in February 2009, the 

NSA notified NSD that NSA's audit had identified three analysts who eondueted 

chaining the BR metadata using fourteen telephone identifiers that had not been RASapproved before the queries. 290 

COURT ORDER: TELEPHONY BUSINESS RECORDS (Sept. 5, 2006) (see page 96 of 1846 and 1862 Production, 

Mar. 5, 2009), available at 

h!.U2;/ 1\"-'\\·v;.dni. gov/iiles/documentslsection/pub F eb%20 12 %201009%,20M cmonmdum%20of%20U S .pdf 282 1n ReProduction ofTangib1e Things from [REDACTED] Order, Docket No. BR 08-13, Mar. 2, 2009, p. 

17, available at 

b_!tp_/~~I_':_'-~~.dni:@_y_(_f~I.~ .. ~J.9_QfUITICTI~?!~.~~-tionlpu_Q_~fh.~Q~.~jJ]&2009%20_Qf_Q£r%20frQg~)-~20fJSC'.pdf 

(citing Government's Response to the Court's Order of Jan. 16,2009, at 13). 283 Order at 9, In ReProduction of Tangible Things from [REDACTED], No. BR 08-13 (FISA Ct. Mar. 2, 

2009), available at 

http://www.dni.go~J}Jcs/dof_~'!l~.!l!s/scctiq!!/pub Mar'2h~:£~02%~Q~_qQ~%100J!f_~X }~o20from%20FISSd:?_QJ 

""'!d. 

285 !d. at 10 (citing Preliminary Notice of Compliance Incident at 2, No. BR 08-08, (FISA Ct. Dec. 11, 2008)) 

'"!d. (citing Notice of Compliance Incident at 2, No. BR 08-13, (FISA Ct. Jan. 26, 2009). 

m Memorandum of the United States in Response to the Court's Order Dated Jan. 28, 2009 (U), In Re 

Production of Tangible Things from [REDACTED], No. BR 08-13 (FISA Ct. Feb. 17, 2009), available at 

.http :/fw\-YW .dni. go\jfp es/docume~1~<:~cction/pu b f ~ b%~QJ 2%2 02 OQ2.%.~ OM cmqr.~mdum%20ot~.'020 US. pQf; 

see also DNI Clapper Declassifies Intelligence Community Documents Regarding Collection Under Section 

501 of the Foreign Intelligence Surveillance Act (FISA), Sept. 10,2013, available at 

!1t.tp;/ii£Onthcr\'C,()Td.tumb.lr:.c;om·; Section 215 White Paper, supra note 223, at 5 ("Since the telephony 

metadata collection program under Section 215 was initiated, there have been a number of significant 

compliance and implementation issues that were discovered ... The incidents, and the Court's responses, 

were ... reported to the Intelligence and Judiciary Committees in great detail.") 2

" Notice of Compliance Incidents (U) at 2, In ReProduction of Tangible Things from [REDACTED], No. 

BR 08-13 (FISA Ct. Feb. 26, 2009), available at 

http://www.dni.gov/files/documents/section/pub_Feb%2026%202009%20Notification%20of"/o20Compliance 

%20Incident.pdf. 

289 !d. at 3. 290 According to Keith Alexander's Supplemental Declaration, "One analyst conducted contact chaining 

queries on four non-RAS-approved telephone identifiers on November 5, 2008; A second analyst conducted 

one contact chaining query on one non-RAS-approved telephone identifier on November !8, 2008; and A 

third analyst conducted contact chaining queries on three non-RAS-approved telephone identifiers on 

December 31, 2008: one non-RAS approved identifier on January 5, 2009; three non-RAS approved 

identifiers on January 15, 2009; and two non-RAS approved identifiers on January 22, 2009." Supplemental 

Declaration of Lieutenant General Keith B. Alexander, United States Army, Director of the National Security 

41 
137 

In May 2009, two additional compliance issues arose. 291 The first compliance 

incident is completely redacted. The second notes a dissemination-related problem: 

namely, that the unminimized results of some queries of metadata had been "uploaded 

[by NSA] into a database to which other intelligence agencies ... had access."292 

According to the government, providing other agencies access to this information may 

have resulted in the dissemination of U.S. person information in violation of both US 

Signals Intelligence Directive 18 as well as the more restrictive restrictions imposed by 

the Court in BR 09-06.293 

c. FISC Response 

Repeatedly, instead of rescinding prior collection programs, FISC merely imposed further 

requirements on the government.294 By spring of 2009, the Court had become fed up 

with the NSA-yet, not enough to actually halt the program. Instead, it insisted on two 

procedures designed to give FISC greater insight into how the NSA was using and 

distributing information related to the telephony mctadata: that NSA return to FISC prior 

to each query of the database; and that NSA file weekly reports with FISC detailing any 

dissemination of the information. Both protections proved temporary. 

FISC's first temporary solution was to require what traditional FISA actually 

required: namely, NSA application to FISC prior to targeting. Between institution of the 

review and the final report, FISC required the NSA to seek approval to query the 

database on a case-by-case basis. The Court was particularly concerned that the NSA 

had averred that having access to all call detail records, 

"is vital to NSA's counterterrorism intelligence mission" because "[t]he only 

effective means by which NSA analysts are able continuously to keep track of 

[REDACTED] and all affiliates of one of the aforementioned entities [who arc 

taking steps to disguise and obscure their communications and identities], is to 

obtain and maintain an archive of metadata that will permit these tactics to be 

uncovered. "

295 

According to FISC, the NSA had also suggested that: 

Agency at 8, In ReProduction of Tangible Things, No. BR 08-13 (FISA Ct. Feb. 25, 2009), available at 

http://www.dni.gov/files/documents/section/pub_Feb%2026%202009%20Notification%20of'/u20Compliance 

%201ncident.pdf. 

291 Order at 4, In ReApplication of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things From [REDACTED], No. BR 09-06 (FISA Ct. Jnne 22, 2009) (referencing 

Government responses to the Court's May 29, 2009 Supplemental Order), available at 

http://www.dni.gov/filesldocuments/section/pub Jun%2022%202009%200rder.pdf. 292 !d. at 5 (quoting Preliminary Notice of Compliance Incident at 2, No. BR 09-06 (FISA Ct. June 16, 2009), 

in Docket No. BR 09-06, at 2. 293 ld 294 The government cites multiple other cases, with key information redacted as follows: "(REDACTED] 

Primary Order, docket number [REDACTED] at 11-12 (requiring, in response to an incident of noncompliance, NSA to tile with the Court every thirty days a report discussing, among other things, queries 

made since the last report to the Court and NSA's application of the relevant standard); see also 

[REDACTED] docket numbers [FULL LINE REDACTED] (prohibiting the querying of data using "seed" 

accounts validated using particular information)." Memorandum of the United States in Response to the 

Court's Order Dated Jan. 28,2009 (U) at 16, In ReProduction of Tangible Things From [REDACTED], No. 

BR 08-13 (FISA Ct. Feb. 17, 2009), available at 

http://w\Y~_dni. gO\'/files/docum~nts/section/pub F eb%120 l2%202009%20Memorandum% 1Qot~%20~~ 295 Order at2, In ReProduction of Tangible Things from [REDACTED], No. BR 08-13 (FISA Ct. M,~r, 2, 

2009) (quoting Application Exhibit A, Declaration of [REDACTED], Signals Intelligence Directorate Deputy 

Program Manager [REDACTED], NSA at 5, In ReProduction of Tangible Things from [REDACTED], No. 

BR 08-13 (FISA Ct. Dec. II, 2008)), available at 

http://www.dni.gov/files/documents/section/pub_March%202%202009%200rder%20from%20FISC.pdf. 

42 
138 

"[t]o be able to exploit metadata fully, the data must be collected in bulk ... The 

ability to accumulate a metadata archive and set it aside for carefully controlled 

searches and analysis will substantially increase NSA's ability to detect and 

identity members of [REDACTED]."296 

Because the Order being sought meant, if granted, that the NSA would be collecting call 

detail records of U.S. persons located within the United States, who were not themselves 

the target of any FBI investigation and whose metadata could not otherwise be legally 

obtained in bulk, FISC had adopted minimization procedures. It had required, inter alia, 

that: 

Access to the archived data shall occur only when NSA has identified a known 

telephone identifier for which, based on the factual and practical considerations 

of everyday life on which reasonable and prudent persons act, there are facts 

giving rise to a reasonable, articulable suspicion that the telephone identifier is 

associated with [REDACTED].297 

The Court had a difficult time believing the NSA's claim that its non-compliance with the 

Court's orders resulted from NSA personnel believing that the Court's restrictions on 

access to the BR metadata only applied to "archived data" (namely, data located in 

certain databases). "That interpretation of the Court's Orders," Judge Reggie Walton 

wrote, "strains credulity."298 The NSA had compounded its bad behavior by repeatedly 

submitting inaccurate descriptions of how it developed and used the alert list process?99 

In return for its claim that the program was vital for U.S. national security, the NSA had 

offered as evidence the rather paltry claim that, after nearly three years of sweeping up all 

telephony metadata, the NSA had generated 275 domestic security reports that, in turn, 

had spurred three preliminary investigations.300 

FISC objected to the government's assertion that "the Court need not take any further 

remedial action"301 Until the NSA completed the review, "the Court sees little reason to 

believe that the most recent discovery of a systemic, ongoing violation- on February 18, 

2009 will be the last."302 Accordingly, starting in March 2009, while the NSA could 

continue to collect data and to test the telephony metadata system, it would only be 

allowed to query it with a Court order-or, in an emergency, to query the database and 

then to inform the court by 5:00 pm, Eastern Time, on the next business day. 303 In 

September 2009, however, FISC lifted the requirement for the NSA to seek approval in 

every case. 

The second protection introduced by FISC was, starting on July 3, 2009, to require 

the NSA to file a weekly report with the Court, listing each time, over the seven-day 

period ending the previous Friday, in which the NSA had shared, "in any form, 

information obtained or derived from the [REDACTED] BR mctadata collections with 

296 /d. (quoting Application Exhibit A, Declaration of[REDACTED], Signals Intelligence Directorate Deputy 

Program Manager [REDACTED], NSA at 5-6, In ReProduction of Tangible Things from [REDACTED], 

No. BR 08-13 (FISA Ct. Dec. l I, 2008)). 297 ld. at 3 (referencing re-authorization to BR 08-13, dating from Dec. 12, 2008). 

298 I d. at 5. 299 ld. at 6. 300 !d. at 13 ("the mere commencement of a preliminary investigation, by itself, does not seem particularly 

significant. .. The time has come for the government to describe to the Court how, based on the information 

collected and analyzed during [the duration of the program], the value of the program to the nation's security 

justifies the continued collection and retention of massive quantities of U.S. person information.") 301 ld. at 14 (quoting Notice of Compliance Incident at 6, In ReProduction of Tangible Things from 

[REDACTED], No. BR 08-13 (FISA Ct. Feb. 26, 2009)). 302 ld. at 16. 303 !d. at 18· 19. 

43 
139 

anyone outside NSA." Again, consistent with traditional FISA, the Court added special 

protections for U.S. persons: 

For each such instance, the government shall specify the date on which the 

information was shared, the recipient of the information, and the form in which 

the information was communicated (e.g., written report, email, oral 

communication, etc.). For each such instance in which U.S. person information 

has been shared, the Chief oflnformation Sharing of NSA's Signals Intelligence 

Directorate shall certify that such official determined, prior to dissemination, the 

information to be related to counterterrorism information and necessary to 

understand the counterterrorism information or to assess its importance.304 

In August 2009 the government submitted its end-to-end assessment of the NSA 

telephony metadata system. 305 FISC lifted its requirements, leaving dissemination 

decisions in the future up to the NSA. It is at least questionable the extent to which the 

requirements with which the NSA was left perform an effective check on the exercise of 

authorities. Prior to the dissemination of information of U.S. persons' information outside 

the Agency, an NSA official must determine that the information is "related to 

counterterrorism information and is necessary to understand the counterterrorism 

information or assess its importance."306 Since the government already considers all of 

the information in the database to be relevant to counterterrorism investigations, and has 

already argued to FISC (and FISC as agreed), that the collection of such data is necessary 

to understand its counterterrorism information, the degree to which this really prevents 

such dissemination is open to question. 

d. Technological Gap 

A critical part of FISC's failure to provide effective oversight of the process relates to the 

Court's decision to have the NSA perform the targeting decision. Part of the problem also 

stems from the court's discomfort with the technological aspects of the collection and 

analysis of digital infonnation. For much of the discussion of noncompliance incidents, 

for instance, it appears that neither the NSA nor FISC has an adequate understanding of 

how the algorithms operate. Neither did they understand the type of information that had 

been incorporated into different databases, and whether they had been subjected to the 

appropriate legal analysis prior to data mining. 

A similar problem may accompany the reporting requirements to Congress. In March 

2009, for example, the Department of Justice had submitted several FISC opinions and 

Government filings relating to the discovery and remediation of compliance incidents in 

its handling of bulk telephony mctadata to the Chairmen of the Intelligence and Judiciary 

Committees.307 A subsequent letter noted that the House and Senate Intelligence and 

304 Order at 7, In ReApplication of the Federal Bureau oflnvestigation for an Order Requiring the 

Production of Tangible Things from [REDACTED], No. BR 09-06 (FISA Ct. June 22, 2009), available at 

http://www.dni.gov/files/documents/section/pub Jun%2022%202009%200rder.pdf. 305 Report of the United States, In Re Applicatio;;- of the Federal Bureau of Investigation for an Order 

Requiring the Production of Tangible Things from [REDACTED], No. BR 09-09, (FISA Ct. Aug. 13, 2009), 

available at 

http://www .dni.gov/tiles/documents/section/pub _ August%20 l9%202009%20Report%20ot%20the%20US% 

20with%20Attachments%2020 13091 O.pdf. 

"~ Section 215 White Paper, supra note 223, at 5. 307 Letter from M. Faith Burton, Acting Assistant Attorney General, to the Hon. Patrick J. Leahy, Chairman, 

Committee on the Judiciary, U.S. Senate; the Hon. Dianne Feinstein, Chairman, Select Committee on 

Intelligence, U.S. Senate, the Hon. John Conyers, Jr., Chairman, Committee on the Judiciary, U.S. House of 

Representatives, the Hon. Silvestre Reyes, Chairman, Permanent Select committee on Intelligence U.S. 

House of Representatives, Mar. 5, 2009, available at 

~~ww.dni.gov/fil~J>Idocuments/sect.ig_!)il]ub Mar%205%2Q.2Q09%20Cover~,o20Lctter%20to%)10Chainn 

an%20of'~/020lnte1 ~;020and%20Judiclary<;/o20Committees.pdf. 

44 
140 

Judiciary Committees had received briefings in March, April, and August, before 

receiving a copy of the NSA's review in September 2009. 308 To the extent that the 

representations of the agency are heavily dependent on technical knowledge, the 

implications may not be readily transparent to lawmaker. 

2. Detailed Legal Reasoning and Creation of Precedent 

To enforce the specialized probable cause standard encapsulated in the Foreign 

Intelligence Surveillance Act, Congress created a court of specialized but exclusive 

jurisdiction.309 Its job was, narrowly, to ascertain whether sufficient probable cause 

existed for a target to be considered a foreign power, or an agent thereof, whether the 

applicant had provided the necessary details for the surveillance, and whether the 

appropriate certifications and findings had been made. It is thus surprising that the 

government considers these orders now to be evidence of precedent, on the basis of 

which, it argues, the programs are legal.310 But even more surprising is the recent public 

discovery that the Foreign Intelligence Surveillance court has greatly broadened the 

"special-needs" exception to the Fourth Amendment to embrace wholesale data 

collection. 311 What is emerging is a complex body of law, establishing doctrines 

unrecognized by the Supreme Court, which is considered precedent for future 

applications to FISC. 

Specifically, in 2008 FISCR looked back at its decision in In re Sealed Case to 

confirm "the existence of a foreign intelligence exception to the warrant requirement."312 

It acknowledged that FISCR had "avoided an express holding that a foreign intelligence 

exception exists by assuming arguendo that whether or not the warrant requirements were 

met, the statute could survive on reasonableness grounds."313 

In In Re Directives, FISCR went on to determine that, as a federal appellate court, in 

the Fourth Amendment context, it would "review findings of fact for clear error and legal 

conclusions (including determinations about the ultimate constitutionality of government 

searches or seizures) de novo." 314 It then asserted, for the first time, a foreign 

intelligence surveillance exception to the Fourth Amendment: 

The question ... is whether the reasoning of the special needs cases applies by 

analogy to justifY a foreign intelligence exception to the warrant requirement for 

surveillance undertaken for national security purposes and directed at a foreign 

power or an agent of a foreign power reasonably believed to be located outside 

the United States. Applying principles derived from the special needs cases, we 

308 DNI Clapper Declassifies Intelligence Community Documents Regarding Collection Under Section 50! of 

the Foreign Intelligence Surveillance Act (FISA), Sept. 10,2013, available at 

http://icontherecord.tumblr.com/; and Letter from Ronald Weich, Assistant Attorney General, to the Han. 

Patrick J. Leahy, Chairman, Committee on the Judiciary, U.S. Senate; the Han. Dianne Feinstein, Chairman, 

Select Committee on Intelligence, U.S. Senate, the Hon. John Conyers, Jr., Chairman, Committee on the 

Judiciary, U.S. House of Representatives, the Hon. Silvestre Reyes, Chairman, Permanent Select committee 

on Intelligence U.S. House of Representatives, Sept. 3, 2009, available at 

http://www.dni.gov/files/documents/sectionlpub_Sep%203%202009%20Cover%20lettcr%20to%20Chairma 

n%20of'!.20the%20Intelligence%20and%20Judiciary%20Committees.pdf. 

309 See Theodore W. Ruger, Chief Justice Rehnquist's Appointments to the FISA Court: An Empirical 

Perspective, 101 Nw. U. L. REV. 239,244 (2007). 

JJO Hearing on Strengthening Privacy Rights and National Security: Oversight of F!SA Surveillance Program 

before the S. Judiciary Comm., !18th Cong. (July 31, 2013). 311 See also Eric Lichtblau, In Secret, Court Vastly Broadens Powers of N.S.A., NEW YORK TIMES, July 7, 

2013, at AI. 312 In Re Directives [REDACTED] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 

551 F.3d 1004, !010 (FISA Ct. of Rev. 2008). 

313 !d. 314 !d. at l 009. 

45 
141 

conclude that this type of foreign intelligence surveillance possesses 

characteristics that qualify it for such an exception. 315 

The court analogized the exception to the 1989 Supreme Court consideration of the 

warrantless drug testing of railway workers, on the grounds that a minimal intrusion on 

privacy could be justified by the government's need to respond to an overriding public 

dangcr.316 

The government subsequently cited In re Directives decision in its August 9, 2013 

White Paper, defending the telephony metadata program, in support of an exception to 

the Fourth Amendment warrant requirement.317 

The Foreign Intelligence Surveillance Court continues to go beyond its mandate. In 

August 2013, for instance, the Court issued a 29-page Amended Memorandum Opinion 

regarding the July 18, 2013 application by the FBI for the telephony metadata program. 318 

Appending the 17-page order to the opinion, Judge Claire V. Eagan considered Fourth 

Amendment jurisprudence, the statutory language of Section 215, and the canons of 

statutory construction, to justify granting the order.319 

Similarly, in a per curiam opinion of 2002, FISCR suggested "this case raises 

important questions of statutory interpretation, and constitutionality. After a careful 

review of the briefs ... we conclude that FISA, as amended by the Patriot Act, supports 

the government's position, and that the restrictions imposed by the FISA court are not 

required by FISA or the Constitution."320 

Congress did not design the Foreign Intelligence Surveillance Court or the Court of 

Review to develop its own jurisprudence. Particularly in light of the lack of adversarial 

process, it is deeply concerning that the Court's decisions have taken on a force of their 

own. 

3. Judicial Design 

Congress tried to construct an even-handed, neutral arbiter by requiring that (a) the 

FISC judges be selected by the Chief Justice of the Supreme Court from at least seven 

different federal districts; (b) the judges serve staggered terms of up to seven years; and 

(c) having once served, such judges are ineligible for further service. 321 To ensure 

diversity, any federal district court judge (including a senior judge), who has not 

previously served on FISC, may be selccted.322 The Foreign Intelligence Surveillance 

Court of Review, in tum, is comprised of judges selected by the ChiefJustice. 323 

This system has been called into question on two grounds: first, in the lack of 

diversity with regard to the appointment of judges to the court and, second, with regard to 

the high rate of applications being granted by FISC. Some observers point to these 

characteristics to question how effectively FISC operates as a check on the executive 

exercise of power. The observations are important, but without more information, it is 

difficult to detennine the extent to which the current state of affairs has substantively 

impacted the process. 

315 Id. at 1011. 316 Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602,620 (1989). 317 Section 215 White Paper, supra note 223, at 15. 318 In ReApplication of the Federal Bureau oflnvestigation for an Order Requiring the Production of 

Tangible things from [REDACTED], No. BR 13-109 (FISC. 2013). 

310 !d. 320 In Re Sealed Case No. 02-002, (FISA Ct. of Rev., Sept. 9, 2002). 

m 50 U.S.C. § l803e -d (2006 & Supp. V 20!!). 322 50 U.S.C. § !803a (2006 & Supp. V 2011). 323 50 U.S.C. § 1803b (2006 & Supp. V 2011). 

46 
142 

a. Appointments 

To the extent that political ideology reflects in the appointments process, the court is 

heavily weighted towards one side of the political spectrum. The past two Chief Justices 

have been appointed by Republican presidents, and their selections for the FISC and 

FISCR have strongly favored judges that have been nominated by Republican 

Administrations. (See Fig. 1) Only one of the current eleven judges serving on FISC is a 

Democratic nominee. Over the past decade, of the 20 judges appointed to FISC and 

FISCR, only three have been democratic nominees to the bench. 

While, as a presentational matter, this raises question about the even-handedness of 

the FISC appointments process, it would be premature to draw too many substantive 

conclusions based solely on the political makeup of the bench. Any meaningful 

examination of how it influences the outcome of cases would need to compare either 

decisions reached by FISC with other, more diverse, courts, or the individual decisions 

reached by FISC judges with decisions reached by judges appointed by the opposing 

party. 

The problem with such studies is that they would be almost impossible to conduct. 

FISC opinions are classified. Beyond this, they are sui generis, in that it is the only court 

that considers FISA applications. It also may be that there are extemalitics that influence 

which judges opt for membership of FISC-i.e., it may be that more Republican 

appointees than Democratic appointees inquire or make clear that they would be 

interested in serving on FISC. No studies have yet been done demonstrating why the 

appointments process aligns with political party-making any conclusions as to the 

effect, absent more information, somewhat arbitrary. 

To the extent that political ideology enters into the equation, the way in which it has 

interacted with the court's role in establishing precedent deserves notice, as it undermines 

the appearance of a neutral arbiter and emphasizes deference to and support for greater 

power for the executive. According to the public record, FISCR, for instance, has only 

met twice: once in 2002 and once in 2008. 324 On both occasions, the panels were 

constituted entirely of Republican appointees, some of whom had publicly argued that 

FISA was an unconstitutional usurpation of executive power. 

Laurence Silberman, from the DC Circuit, testified to Congress in 1978 (when FISA 

was being debated) that the legislation violated the U.S. Constitution. 325 Silberman, who 

had previously served as Deputy Attomey General, was "absolutely convinced that the 

administration bill, if passed, would be an enormous and fundamental mistake which the 

congress and the American people would have reason to regret."326 For Silberman, the 

judiciary's role in any national security electronic surveillance should be circumscribed. 

He explained, 

I find the notion that the President's constitutional authority to conduct foreign 

affairs and to command the armed forces precludes congressional intervention 

into the manner by which the executive branch gathers intelligence, by electronic 

or other means, to be unpersuasive, and in that respect I agree with my colleague 

here to the left. But to concede the propriety of a congressional role in this 

matter is by no means-and this is the burden of my testimony-to concede the 

324 See In reSealed Case, 310 F.3d 717, (FISA. Ct. Rev. 2002); In re Directives Pursuant to Section 105B of 

Foreign Intelligence Surveillance Act, 551 F.3d 1004 (FISA Ct. Rev. 2008). 325 Foreign intelligence Electronic Surveillance: Hearings on H.R. 5794, 9745, 7308, and 5632 Before the 

Subcomm. on Legislation of the Permanent Select Comm. an intelligence, 95th Cong., 2d Sess. 221 (1978) 

(statement ofLaurcnce H. Silberman, Feb. 8, 1978). 326 id. 

47 
143 

propriety or constitutionality of the judicial role created by the administration's 

bill.327 

The chief concern was not a so-called "imperial Presidency", but the advent of an 

"imperial judiciary." The authorities transferred to FISC thus represented an 

unconstitutional erosion of executive power. 328 Another FISC judge, Ralph Guy, 

similarly argued as a U.S. attorney for the government in U.S. v. U.S. District Court that 

the president did not need any type of a warrant to engage in national security 

surveillance.329 

Along with Judge Leavy, a Reagan appointee, Silberman and Guy heard the first 

appeal in the history of FISA--issuing a decision that made it possible for the 

government to use the looser restrictions in FlSA even in cases where the primary 

purpose of the investigation was criminal in nature.330 The FISCR panel that appears to 

have created a foreign intelligence exception to the Fourth Amendment warrant 

requirement similarly lacked a diverse political base. It included Chief Judge Selya and 

Senior Circuit Judges Winter and Arnold---the first two appointees of Ronald Reagan and 

the last of George H.W. Bush. 

To the extent that political appointments stand in as a proxy for political ideologies, 

such as greater deference to the executive branch, the lack of diversity in the 

appointments process--especially in regard to some of the most important and farreaching secret decisions issued by the court-raises important questions about the extent 

to which FISC, as conceived by Congress, is performing in a role as neutral arbiter. 

Without more detailed information about the judicial process, however-much of which 

could not, under the current system, be studied-the extent to which this is the case as a 

substantive matter remains in question. 

JUDGES APPOINTED TO THE FOREIGN INTELLIGENCE SURVEILLANCE COURT 

AND COURT OF REVIEW BY ORIGINAL APPOINTMENT TO THE BENCH331 

District Jud~e 

Rosemary M. Collyer* 

Claire Eagan* 

Michael W. Mosman* 

~ond J. Dearie* 

iam C. Bryson** 

ifer B. Coffman 

F. Dennis Saylor IV* 

Martin L.C. Feldman* 

Susan Webber Wright* 

Thomas Hogan* 

Morris Arnold** 

James Zagel* 

Mary A. McLaughlin* 

Reggie Walton* 

Roger Vinson 

327 !d. at2!9. 328 ld. 

Court 

FISC 

FISC 

FISC 

FISC 

FISCR 

FISC 

FISC 

FISC 

FISC 

FISC 

FISCR 

FISC 

FISC 

FISC 

FISC 

Dates of appointment Appointine: President 

3/8/2013-31712020 George W. Bush 

2/13/2013-5/18/2019 George W. Bush 

5/4/2013-5/3/2020 George W. Bush 

7/2/2012-7/1/2019 Ronald Reagan 

12/1/2011-5/18/2018 Bill Clinton 

5/19/2011- 1/8/2013 Bill Clinton 

5/19/20 II - 5118/2018 George W. Bush 

5/19/2010- 5118/2017 Ronald Reagan 

5/19/2009-5118/2016 George H.W. Bush 

5/19/2009 - 5/18/2016 Ronald Reagan 

6/13/2008 - 5118/2015 George H.W. Bush 

5/19/2008 5/18/2015 Ronald Reagan 

5/19/2008-5/18/2015 Bill Clinton 

5/19/2007-5/18/2014 George W. Bush 

5/4/2006 - 5/3/2013 Ronald Reagan 

329 United States v. U.S. Dis/. Ct./or the E. Dist. of Mich .• 407 U.S. 297 (1972). 330 In reSealed Case, 310 F.3d 717 (2002) .. 331 Dates of appointment obtained from the Federation of American Scientists, available at 

http://www.fas.org/. 

48 
144 

John D. Bates FISC 

Bruce M. Selva FISCR 

Malcolm Howard FISC 

Frederick J. Scullin FISC 

Dee Benson FISC 

Ralph Winter FISCR 

George Kazen FISC 

Robert Broomfield FISC 

Colleen Kollar-Kotelly FISC 

James G. Carr FISC 

James Robertson FISC 

John Edward Conway FISC 

Edward Leavy FISCR 

Nathaniel M. Gorton FISC 

Claude M. Hilton FISC 

Michael J. Davis FISC 

Ralph B. Guy, Jr. FISCR 

Harold A. Baker FISC 

Stanley S. Brotman FISC 

William Stafford FISC 

Royce C. Lamberth FISC 

Laurence Silberman FISCR 

Paul Roney FISCR 

John F. Keenan FISC 

James C. Cacheris FISC 

Earl H. Carroll FISC 

Charles Schwartz Jr. FISC 

Bobby Ray Baldock FISCR 

Ralph G. Thompson FISC 

Frank Freedman FISC 

Wendell A. Miles FISC 

Robert W. Warren FISCR 

Sidney Aronovitz FISC 

Joyce H. Green FISC 

Conrad K. Cyr FISC 

Collins Seitz FISCR 

• Denotes current members of FISC 

**Denotes current members of FISCR 

b. Order Rate 

2/22/2006 -- 2/2112013 Georg_e W. Bush 

5/19/2005-5/18/2012 Ronald Reagan 

5/19/2005- 5/18/2012 Ronald Reagan 

5119/2004 - 5/18/2011 Ronald Rea_g_an 

4/8/2004 - 4/7/2011 George W. Bush 

11/14/2003-5/18/2010 Ronald Reagan 

7/15/2003-5/18/2010 Jimmy Carter 

10/1/2002-5/18/2009 Ronald Reagan 

5/1912002-5/18/2009 Bill Clinton 

5/19/2002 - 5/18/2008 Bill Clinton 

5/19/2002- 12/19/2005 Bill Clinton 

5119/2002- 10/30/2003 Ronald Reagan 

9/25/2005 - 5/18/2008 Ronald Reagan 

5/19/2001-5/18/2008 Georg_e W. Bush 

5/18/2000 - 5/18/2007 Ronald Rea_gan 

5/18/1999-5118/2006 Bill Clinton 

10/8/1998 - 5/18/2005 Gerald Ford 

5/18/1998- 5/18/2005 Jimmy Carter 

7/17/1997 - 5118/2004 Gerald Ford 

5119/1996- 5/18/2003 Gerald Ford 

511911995 - 5!18/2002 Ronald Reagan 

6/18/1996 - 5118/2003 George W. Bush 

9/13/1994- 05/18/2001 Richard Nixon 

7/2711994-5/18/2001 Ronald Reagan 

9/10/1993-5/18/2000 Ronald Reagan 

2/23/1993 - 5/18/1999 Jimi11Y. Carter 

8/5/1992-5/18/1998 Gerald Ford 

611711992-5/18/1998 Ronald Reagan 

611111990- 5/18/1997 Gerald Ford 

5/30/1990-5/19/1994 Richard Nixon 

9/2111989-5/1811996 Richard Nixon 

10/30/1989- 5/18/1996 Richard Nixon 

6/8/1989- 5/18/1992 Gerald Ford 

5/1811988 -- 5118/1995 Jimmy Carter 

5/18/1987- 11/2011989 Ronald Reagan 

3/19/1987 - 3118/1994 Lyndon B. Johnson 

'" F1gure 1 

Augmenting the lack of diversity in terms of appointments to FISC and FISCR is the 

rather notable success rate enjoyed by the government in its applications to the court. 

Scholars have noted that it is "unparalleled in any other American court."332 Over the first 

two and a half decades, for instance, FISC approved nearly every single application 

without any moditication.333 Between 1979 and 2003, FISC denied only 3 out of 16,450 

applications.334 

332 Ruger, supra note 246, at 245. 333 See I KRIS & WILSON, supra note 139, at 469 .. ; Letter from Attorney General William French Smith to 

Director, Administrative Office of the U.S. Courts( Apr. 22, 1981, available at 

49 
145 

Looking more recently, since 2003, FISC has issued a ruling on 18,473 applications 

for electronic surveillance and/or physical search (2003-2008), and electronic 

surveillance (2009-2012). (See Fig. 2) Court supporters note that a significant number of 

these applications are either modified or withdrawn by the government prior to FISC 

ruling. But even here, the numbers arc quite low: 493 modifications still only comes to 

2.6% of the total number of applications. Simultaneously, only 26 applications have been 

withdrawn by the government prior to FISC ruling. (Sec Figure 2). 

These numbers do speak to the presence of informal processes, whereby FISC 

appears to be influencing the contours of applications. Without more information about 

the types of modifications that are being required, however, it is impossible to gauge 

either the level of oversight or the extent to which FISC is altering the applications. 

Critics also point to the risk of capture presented by in camera, ex parte proceedings, 

and note that out of 18,4 73 rulings, FISC has only denied eight in whole and three in part. 

Whatever the substantive effect might be, the presentational impact is of note. 

Year 

2003 336 

2004338 

2005"" 

2006342 

2007344 

2008346 

FISC RULINGS O:'ol 

ELECTRONIC SURVEILLANCE AND PHYSICAL SEARCH (2003-2008) 

AND ELECTRONIC SURVEILLANCE (2009- 2012)335 

# of Applications on # #Modified # #Denied # w/drawn 

which FISC ruled Approved Denied in Gov't prior 

in Part Whole FISC ruline 

1,727 1,724 79 0 3 ,, 0 

I, 756339 1,756 94 0 0 3 

2,072541 2,072 61 0 0 2 

2,176343 2,176 73 I 0 5 

2.371 2,370 86 I 3'"' 0 

2.082 2,083'"' 2 0 I 0 

by 

to 

http://www.fas.orgl_irp_!~_g_~ns;.y~Q.q.iL[!sJ/ l980rept.html ('"No orders were entered which modified or denied the 

requested authority, except one case in which the Court modified an order and authorized an activity for 

which court authority had not been requested.") 334 Laura K. Donohue, The Cost of Counterterrorism: Power, Politics and Liberty 232 (2008). 335 Starting in 2009, the Department of Justice began providing the breakdown ofthe number approved, 

modified, denied in part, denied in whole, or withdrawn by the government prior to the FISC ruling only for 

those applications involving electronic communications. Prior to that time, these numbers were combined. 336 Letter from William E. Moschella, Assistant Attorney Gen., to Mr. L. Ralph Mecham, Dir., Admin. Office 

of the U.S. Courts (Apr. 30, 2004),, available at https://www.fas.org/irp/agency/doj/fisa/2003rept.pdf. 337 An addition application was initially denied but later approved. !d. 338 Letter from Office of Legislative Affairs, U.S. Department of Justice, to The Honorable J. Dennis Hastcrt, 

Speaker, U.S. House of Representatives, (Apr. 1, 2005), available at 

https://www.fas.org/irp/agency/doj/fisa/2004rept.pdf. 

"'1758 submitted, 3 of which were withdrawn prior to FISC ruling and I of which was resubmitted. !d. 340 Letter from William E. Moschella, Assistant Attorney Gen., Office of Legislative Affairs, U.S. 

Department of Justice, to The Honorable J. Dennis Hastert, Speaker, U.S. House of Representatives (Apr. 28, 

2006), available at https://www.fas.org/irp/agency/doj/fisa/2005rept.html. 341 2,074 submitted, 2 of which were withdrawn prior to FISC ruling, and I of which was resubmitted. I d. 342 Letter from Richard A. Hertling, Acting Assistant Attorney Gen., to the Honorable Nancy Pelosi, Speaker, 

U.S. House of Representatives (Apr. 27, 2007), available at 

https://www.fas.org/irp/ageney/doj/fisa/2006rept.pdf. 

343 2,181 submitted, 5 of which were withdrawn prior to FISC ruling. !d. 344 Letter from Brian A. Benczkowski, Principal Deputy Assistant Attorney Gen., Office of Legislative 

Affairs, U.S. Department of Justice, to the Honorable Naney Pelosi, Speaker, U.S. House of Representatives 

(Apr. 30, 2008), available at https://www.fas.org/irp/agency/doj/fisa/2007rept.pdf. 345 Discrepancy in the numbers stems in part from holdover applications and denials. Two applications, for 

instance, filed in CY 2006 were not approved until 2007. !d. 

50 
146 

2009"' 1,321 54' 1,320 14 I 1 8 

2010"0 1,506'" 1,506 14 0 0 5 

2011 352 1,674353 1,674 30 0 0 2 

2012304 1,788"' 1 788 40 0 0 I 

Totals 18,473 18,469 493 3 8 26 

F1gure 2 

Setting modifications aside for the moment, the deference that appears to exist with 

regard to straight denials or granting of orders seems to extend to FISC rulings with 

regard to business records. Almost no attention, however, has been paid to this area. It 

appears that FISC has never denied an application for an order under this section. That 

is, of751 applications since 2005, all 751 have been granted. (See Fig. 3) 

ORDERS FOR THE PRODUCTION OF TANGIBLE GOODS 

Year Number of Applications to FISC under Number of Applications Granted 

50 USC t862(c)(2) by FISC 

2005'" 155 155 

2006·' 43 43 

346 Letter from Ronald Weich, Assistant Attorney Gen., Office ofLcgis1ative Affairs, U.S. Department of 

Justice, to the Honorable Harry Reid, Majority Leader, U.S. Senate (May 14, 2009) available at 

https://www.fas.org/irp/agency/doj/fisa/2008rept.pdf. 

347 Discrepancy in the numbers stems in part from holdover applications and denials. Two applications filed 

in CY 2007 were not approved until CY 2008). 348 Letter from Ronald Weich, Assistant Attorney Gen., Office of Legislative Affairs, U.S. Department of 

Justice, to The Honorable Joseph R. Biden, Jr., President, U.S. Senate (Apr. 30, 2010), available at 

https://www.fas.org/irp/agency/doj/fisa/2009reptpdf. 

349 For the first time since 2003, no numbers are available for modifications/denials for the full number of 

applications submitted (physical search, electronic surveillance, and combined applications). Instead, the 

report notes that of the 1,376 in total submitted in the former three categories, 1,329 were related to electronic 

surveillance. It was eight of these applications that were withdrawn, 1 denied in whole, 1 denied in part, and 

14 modifications, with 1,320 approved. The number of applications is thus missing the numbers for physical 

search and physical search combined applications. !d. 350 Letter from Ronald Weich, Assistant Attorney Gen., Office of Legislative Affairs, U.S. Department of 

Justice, to the Honorable Harry Reid, Majority Leader, U.S. Senate, (Apr. 29, 2011 ), available at 

https://www .fas .org/irp/agency/ doj/fisa/20 1 Orept. pdf. 351 Total number of electronic surveillance, physical search, and combined applications was 1,579. The 

report, however, isolates the electronic applications ( 1,511 ), and provides breakdowns for modifications, 

denials, etc., for just that category. Of the total of 1,511, five were withdrawn by the Government prior to 

FISC ruling. !d. 352 Letter from Ronald Weich, Assistant Attorney Gen., to The Honorable Joseph R. Bidcn, Jr., President, 

U.S. Senate (Apr. 30, 2012),, available at https://www.fas.org/irp/agency/dojlfisa/2011reptpdf. 353 Note that there were 1,745 total applications that included electronic surveillance and/or physical searches 

for foreign intelligence purpose. It appears that approximately 70 of the orders related solely to physical 

search, since the breakdown for electronic surveillance is only done for the 1,674. Two of the initial orders 

were withdrawn prior to FISC ruling. I d. 354 Letter from Peter J. Kadzik, Principal Depury Assistant Attorney Gen., to the Honorable Harry Reid, 

Majority Leader, U.S. Senate (Apr. 30, 2013), available at 

https://www.fas.org/irp/agency/doj/fisa/2012rept.pdf. 

355 The government made a total of 1,856 applications for electronic surveillance and/or physical searches; of 

those, l ,789 included requests for electronic surveillance. Of those, one was withdrawn by the Government 

prior to FISC ruling. !d. 356 Letter from William E. Moschella, Assistant Attorney Gen., to the Honorable Richard B. Cheney, 

President, United States Senate (Apr. 28, 2006), available at 

http://v.ww.justice.gov/nsdlfoia/foia _library/2005fisa-ltr.pdf. 357 Letter from Richard A. Hertling, Acting Assistant Attorney Gen., to the Honorable Richard B. Cheney, 

President, United States Senate (Apr. 27, 2007), available at 

http://www.justice.gov/nsd/foia/foia _library/2006fisa-ltr.pdf. 

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147 

2007'" 6 6 

2008"" 13 13 

2009'"" 21 21 

2010'"' 96 96 

2011 -'"' 205 205 

2012-'" 212 212 

Totals 751 751 .. Figure 3 

It is important to underscore that the lack of more contextual data cautions against 

drawing too much, however, from the nonexistent rate of denial. For one, Congress tied 

the Court's hands, requiring FISC to grant applications once the statutory conditions are 

met.364 To the extent, then, that FISC is deferential to the executive, responsibility lays at 

least in part at the door of the legislature. 

For another, it is almost impossible to tell, outside of the classified world, the extent 

to which the Court pushes back on the Department of Justice-not just in regard to 

specific orders, but in relation to broader rules and procedures, as well as in an oversight 

capacity. Two examples come to mind. 

In 2010, John D. Bates, the Presiding Judge of FISC issued a declassified Rules of 

Procedure, requiring notice and briefing of novel issues before the court 365 This 

document suggested that FISC would not, in the future, simply accept applications in new 

areas of the law, without first considering the underlying legal issues. 

In addition, the recently-released judicial opinions from 2009, in tum, suggest that 

FISC was pressuring the NSA with regard to their failure to ensure that the identifiers run 

against the database be subjected to a test of reasonable, articulable suspicion. The Court 

was clearly uncomfortable with the pattern of misinformation that had marked the 

government's previous representations to FISC. With that said, however, these same 

documents also reveal the extent to which the court relies on the NSA to police its own 

activities-again raising question about the extent to which FISC adequately performs 

the role envisioned for it. 

358 Letter from Brian A. Benczkowski, Principal Deputy Assistant Attorney Gen., to the Honorable Richard 

B. Cheney (Apr. 30, 2008), available at http://www.justice.gov/nsdifoia/foia_library/2007fisa-ltr.pdf. 359 Letter from Ronald Weich, Assistant Attorney Gen.!, to the Honorable Joseph R. Biden, Jr., President, 

United States Senate (May 14, 2009), available at http://www.justice.gov/nsdifoia/foia _library/2008fisaltr.pdf. 

360 Letter from Ronald Weich, Assistant Attorney Gen., to the Honorable Joseph R. Biden, Jr., President, 

United States Senate (Apr. 30, 2010), available at http://www.justice.gov/nsdifoia!foia_library/2009fisaltr.pdf. 

361 Letter from Ronald Weich, Assistant Attorney Gen., Department of Justice, to the Honorable Joseph R. 

Biden, Jr., President, U.S. Senate( Apr. 29, 2011), available at 

http://www .justice.gov/nsdifoia/foia _library /20 I Ofisa-ltr .pdf. 362 Letter from Ronald Weich, Assistant Attorney Gen., Department of Justice, to the Honorable Joseph R. 

Biden, Jr., President, U.S. Senate (Apr. 30, 2012), available at 

http://www.justice.gov/nsdifoia/foia library/20 II fisa-ltr.pdf. 363 Letter from Peter J. Kadzik, Principal Deputy Assistant Attorney Gen., Department of Justice,, to the 

Honorable Joseph R. Biden, Jr., President, U.S. Senate( Apr. 30, 2013), available at 

http://www .justice.gov /nsdifoia/foia _hbrary/20 12 fisa-ltr. pdf. 364 50 U.S.C. § 1861c(l) (2006) ("Upon an application made pursuant to this section, if the judge finds that 

the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte order as 

requested, or as modified approving the release of tangible things.") (emphasis added) 365 FISA CT. R. 11, available at https://www.fas.org/irp/agency/doj/fisa!fiscrules-201 O.pd( The current rules, 

issued November I, 2010, superseded both the February 17, 2006, Rules of Procedure and the May 5, 2006, 

Procedures for Review of Petitions Filed Pursuant to Section 50/(j) of the Foreign Intelligence Surveillance 

Act of 1978, As Amended. 

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As a final note, it is important to recognize that the sheer volume of the numbers 

associated with the tangible goods provisions (751) are remarkable not least because any 

one order, as we have seen with the telephony metadata program, could result in the 

collection of millions of records on millions of U.S. persons. In light of the in camera, ex 

parte proceedings, these numbers raise further questions about FISC's role. 

VI. BULK COLLECTION VIOLATES FISA's STATUTORY PROVISIONS 

The telephony metadata program violates the express statutory language in three primary 

areas: first, with regard to the language "relevant to an authorized investigation"; second, 

in relation to the requirement that the information sought can be obtained under subpoena 

duces tecum; and third, in its violation of the restrictions specifically placed on pen 

registers and trap and trace equipment. 

A. "Relevant to an Authorized Investigation" 

The government argues that the NSA's telephony metadata program is consistent with the 

language of 50 U.S.C. § 1861 in that all telephone calls in the United States, including 

those of a wholly local nature, are "relevant" to foreign intelligence investigations. 

The word itself, the administration states, "is a broad term that connotes anything 

'[b]earing upon, connected with, [or] pertinent to' a specified subject matter. 13 Oxford 

English Dictionary 56! (2d ed. 1989)."366 Turning to its "particularized legal meaning," 

It is well-settled in the context of other forms of legal process for the production 

of documents that a documents is "relevant" to a particular subject matter not 

only where it directly bears on that subject matter, but also where it is reasonable 

to believe that it could lead to other information that directly bears on that subject 

matter. 367 

The fact that massive amounts of data may be involved is of little import: 

Courts have held in the analogous contexts of civil discovery and criminal and 

administrative investigations that "relevance" is a broad standard that permits 

discovery of large volumes of data in circumstances where doing so is necessary 

to identify much smaller amounts of information within that data that directly 

bears on the matter being investigated.368 

Applied to the telephony metadata program, whilst recognizing that the telephony 

metadata program is "broad in scope", the government argues that there are nevertheless 

"reasonable grounds to believe" that the category of data (i.e., all telephone call data), 

when queried and analyzed, "will produce information pertinent to FBI investigations of 

international terrorism." 369 For communications data, the government argues, 

connections between individual data points can only be reliably identified through largescale data mining. 370 

There are two sets of responses to the government's arguments. The first centers on 

the government's claim that all telephony metadata is relevant to authorized 

investigations; the center revolves around the connection in the statutory language 

between the relevance of the information to be obtained and "an authorized 

investigation." 

366 Section 215 White Paper, supra note 223, at 8. 

367 !d. at 9. 368 !d. at 2-3. 369 !d. at 3, 

370 !d. 

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1. Relevance Standard 

The first problem with the government's argument is that it stretches credulity to 

state that there are "reasonable grounds" to believe that millions of daily telephone 

records are "relevant" to an authorized investigation. 

The records sought by the government under the telephony metadata program detail 

the interactions, personal and business relationships, religious and political connections, 

and other intimate details - on a daily basis - of millions of Americans, not themselves 

connected in any way to foreign powers or agents thereof. They include private and 

public interactions between Senators, between members of the House of Representatives, 

and between judges and their chambers, as well as information about state and local 

officials. They include parents communicating with their children's teachers, and 

zookeepers arranging for the care of animals. Rape hotlines, abortion clinics, and 

political party headquarters-all telephony metadata data is being collected by the NSA. 

Reading FISA to allow this type of collection would render meaningless the 

qualifying phrases contained in 50 U.S.C. § 1861 (b)(2)(A). The statute first requires that 

there be "reasonable grounds" to believe that the records being sought are relevant. 

Although FISA does not define "reasonable grounds", it has been treated as the 

equivalent of "reasonable suspicion".m This standard requires a showing of "specific 

and articulable facts, which, taken together with rational inferences from those facts, 

reasonably warrant" an intrusion into an individual's right to privacy. 372 

The FISC order requires that Verizon disclose all domestic telephone recordsincluding those of a purely local nature. According to Verizon Communications News 

Center, as of last year, the company has 107.7 million wireless customers, connecting an 

average of I billion calls per day.373 There is simply no way that the government 

provided specific and articulable facts relevant to each one of those customers or calls, 

sufficient to establish reasonable grounds to establish their relevance. Interpreting 

relevance as including all records is so broad as to make the "reasonable grounds" 

requirement obsolete. 

Precisely what, in turn, makes a tangible good "relevant" to an authorized 

investigation is not explained in the statute. Nevertheless, the act suggests that tangible 

things are "presumptively relevant where they: "pertain to - (i) a foreign power or an 

agent of a foreign power; (ii) the activities of a suspected agent of a foreign power who is 

the subject of such authorized investigation; or (iii) an individual in contact with, or 

known to, a suspected agent of a foreign power who is the subject of such authorized 

investigation.374 

This section also appears not to apply to the telephony metadata program. It would be 

impossible to establish that all customer and subscriber records pertain to a foreign power 

or an agent thereof, or to a particular, suspected agent of the same, who is the subject of 

an authorized investigation. Perhaps five or ten customers may fall into this category, but 

millions simply pushes the bounds of common sense. So the telephony metadata is 

neither relevant nor presumptively relevant. 

The government's interpretation is so broad that it establishes a dangerous precedent. 

If all telephony metadata is relevant to foreign intelligence investigations, then so is all 

email metadata, and all GPS metadata, all financial information, all banking records, all 

371 See, e.g., United States v. Banks, 540 U.S. 31,36 (2003); United States v. Henley, 469 U.S. 221,227 

(1985); United States v. Brinoni-Ponce, 422 U.S. 873, 881-82 (1975); Kris & Wilson, supra note 127, at 

§ 19:3. 

372 Terry v. Ohio, 392 U.S. I, 21 (1968). 373 Verizon Communications Company Statistics, reported by Vcrizon Communications News Center, Aug. 

I 0, 2012, available at http://www.statisticbrain.com/verizon-cornrnunications-company-statistics/. 374 50 U.S.C. §1861(b)(2)(A) (2006). 

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150 

social network participation, and all Internet use. Indeed, FISC has hinted that there may 

be other programs at there that operate in a similar fashion, and on September 28, 2013, 

the New York Times reported that the NSA began allowing analysis of phone call and 

email logs in November 2010 to begin examining American's networks of 

associations:175 If all telephony metadata is relevant, then so is all other data-which 

means that very little would, in fact, be irrelevant to such investigations. If this is the 

case, then such an interpretation radically undermines not just the limiting language in the 

statute, but the very purpose for FISA in the first place. 

Finally, the government's interpretation directly contradicts Congress' intent in 

adopting §215. At the introduction of the measure Senator Arlen Specter explained that 

the purpose of the language was to create an incentive for the government to use the 

authority only when it could demonstrate a connection to a particular suspected terrorist 

or spy.376 During a House Judiciary Committee meeting on July 17, 2013, Representative 

James Sensenbrenner (R-WI), reiterated that the reason Congress inserted "relevant" into 

the statute was to ensure that only information directly related to national security probes 

would be included-not to authorize the ongoing collection of all phone calls placed and 

received by millions of Americans not suspected of any wrongdoing.377 Members of the 

Committee made similar claims. 378 

2. CoiiDection to "an Authorized Investigation" 

There are three ways, in turn, in which the telephony metadata program violates 

FISA's requirement in §1861 that the order be sought for use in an "authorized 

investigation." First, the guidelines establishing when such an investigation exists relate 

solely to the moment of the collection of the information. The FISC order, in contrast, 

allows the collection of the data on an ongoing basis, tying instead the search of such 

information to authorized investigations. Second, under the Attorney General guidelines, 

for each of the levels, there is a predicate specificity required prior to the collection of 

information-namely, that the investigation be premised upon specific individuals, 

groups, or organizations, or violations of criminal law. The telephony metadata program, 

in contrast, requires no such specificity prior to the collection of the data. Third, the 

orders issued by FISC empower the NSA to conduct searches of the data in future 

authorized investigations. In other words, the collection of the metadata is relevant to the 

concept of investigations generally. This means that the orders do not, in fact, relate to 

(existing) authorized investigations. 

a. Collection of the Information 

FISA, as aforementioned, requires that the government submit a statement of facts 

demonstrating reasonable grounds to believe that the records being sought are relevant to 

an authorized investigation (other than a threat assessment). 379 It ties the definition of 

what constitutes an authorized investigation to guidelines approved by the Attorney 

General under Executive Order 12333.380 

The most recent set of guidelines, the FBI's 2008 Consolidated Domestic Operations 

Guidelines, provides for three or four main categories of investigations: assessments 

375 James Risen and Laura Poitras, NSA Gathers Data on Social Connections of U.S. Citizens, NEw YORK 

TIMES, Sept. 28, 2013, at AI. 376 151 Cong. Rec. 13,441 (2005). 377 Oversight of the Administration's Use of FISA Authorities: Hearing Before fl. Comm. on the Judiciary, 

!13th Cong. (2013). 378 !d. 

379 50 U.S.C. §1861(b)(2)(A) (2006). JRO fd. 

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151 

(i.e., "threat assessments" under the 2003 guidelines and section 215); preliminary 

investigations; full investigations; and enterprise investigations (a variant of full 

investigations).381 

FISA, as aforementioned, makes it clear that the tangible records in question may not 

be sought as part of the first level of national security investigations-i.e., the assessment 

stage. There is an important reason for this restriction. It is the most general level and, as 

such, lacks the factual predicate required for the use of more intrusive techniques of 

information-gathering. 

Between 2003 and 2008, for instance, at the threat assessment stage, the FBI could 

collect information on individuals, groups, and organizations "of possible investigative 

interest, and information on possible targets of international terrorist activities or other 

national security threats.''382 But the only types of methods allowed, as noted by the 

Attorney General, were "relatively non-intrusive investigative techniques." This 

included: 

[O]btaining publicly available information, accessing information available 

within the FBI or Department of Justice, requesting information from other 

government entities, using online informational resources and services, 

interviewing previously established assets, non-pretextual interviews and 

requests for information from members of the public and private entities, and 

accepting information voluntarily provided by governmental or private entities. 383 

Nowhere in the discussion of the threat assessment stage did the 2003 guidelines 

contemplate the use of court-ordered surveillance. 

In 2008, the Attorney General expanded the tools that could be used during the 

assessment stage to include: publicly available information; all available federal, state, 

local, tribal, or foreign governmental agencies' records; online services and resources; 

human source information; interviews or requests for information from members of the 

public and private entities; information voluntarily provided by governmental or private 

381 See Michael B. Mukasey, Att'y Gen., The Attorney General's Guidelines for Domestic FBI Operations 

(Oct. 3, 2008), !lliJEifwww.justi~,C~.gov/arrirea_dji1groonl!gtilll~:Jines.pdf; Departtnent of Justice, Fact Sheet: 

Attorney General Consolidated guidelines for FBI Domestic Operations (Oct. 3, 2008), 

llli!J:/!www.justice.gov/opaipr/2008l0ctober/08-ag-889.html (noting that the new, consolidated guidelines 

replace five existing sets of guidelines separately addressing criminal investigations, national security 

investigations, foreign intelligence collection, and other matters. "In contrast to previous guidelines, the new 

guidelines are generally unclassified, providing the public with ready access in a single document to the basic 

body of operating rules for FBI activities within the United States.") For previous guidelines, see The 

Attorney General's Guidelines for FBI National Security Investigations and Foreign Intelligence Collection 

at 3 (Oct. 31, 2003), hlliJ://w\y>yJascor!iirJl@genc;v/doj/fbjii1Sj@_icl~_ll!1"SJ'<lf [Redacted in part] [hereinafter 

AG NS! Guidelines]. See also DavidS. Kris, On the Bulk Collection of Tangible Things 17 (Sept. 29, 2013), 

available at b!!Q;//www.lawfareblog.com/wp-con(~nt/uploads/2013/Q2{l,?Wfare-Resear(;_h-Paper-Series-Ng.,: 

±_bQ<lf. Also note that on December 16, 2008, the FBI issued a Domestic Investigations and Operations 

Guide to help to implement the September 2008 Guidelines for Domestic FBI Operations. FBI Records: the 

Vault, Federal Bureau of Investigation, available at 

h!!P://vaultJbi.goy/fBI%20Domestic ,~20Invesri~ations%20and%200perationso/o20Guide%)20(Dl0G)/fbiQ_QD}~~tic-inve~tll!ations-and-operations-guide_-dioe:-2008-\~~f.:'>.t9l!· A new FBI Domestic Investigations and 

Operations Guide was released Oct. 15, 2011 and updated June 15, 2012. See Domestic Investigations and 

Operations Guide, Federal Bureau of Investigation, June 15, 2012, available at 

http:/ /ww,~, ac I u.org/fi lesipdfslemai !-content-foia/FB J~io20docs/ June%2020 I 2%20 FBI %20 D I OG. pdf. In 

addition to the AG-Dom (Attorney General's Guidelines for Domestic FBI Operations), and the DIOG 

(Domestic Investigations and Opermions Guide). every FBI HQ operational division has a PG (policy 

implementation guide) that supplements the DIOG.Jd., at xxix. 

382 !d. at 3. 

" 3 !d. at 3. 

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entities; observation or surveillance not requiring a court order; and grand jury subpoenas 

for telephone or electronic mail subscriber information.384 

The addition of the last two items broadened the type of information that could be 

obtained. Similarly, whereas previously the guidelines noted that mail covers, mail 

openings, and nonconsensual electronic surveillance or any other investigative technique 

covered by Title 18 U.S.C. §§2510-2521 shall not be used during a preliminary 

inquiry,385 the 2008 guidelines dropped any equivalent language. 

Even with the broadening, however, under FISA, tangible goods may not be obtained 

under Section 215 during the assessment stage. The purpose is to place a higher burden 

on the government to justify the use of more intrusive surveillance. If such methods are 

to be used, and the related information collected, there must be a factual predicate 

establishing a higher level of suspicion as to the presence of criminal activity or a threat 

to national security.386 

For preliminary investigations, this means that information or an allegation indicating 

the existence of criminal activity or a threat to U.S. national security exists. For a full 

investigation, there must be "an articulable factual basis for the investigation that 

reasonably indicates" criminal activity or a threat to U.S. national security.387 For an 

enterprise investigation (a variant of a full investigation), there must be an articulable 

factual basis for the investigation reasonably indicating "that the group or organization 

may have engaged or may be engaged in, or may have or may be engaged in planning or 

preparation or provision of support for" racketeering, intemational terrorism or other 

threats to U.S. national security, domestic terrorism, furthering political or social goals 

wholly or in pat through activities that involve force or violence and a violation of federal 

criminal law, or a closed range of other offenccs. 388 

In short, the guidelines distinguish between the different levels based on a factual 

predicate of wrongdoing, which then acts as a valve on the level of intrusiveness that the 

govemment can adopt in collecting more information. 

In contrast, the primary order for the telephony metadata program does not follow 

this approach. Instead, it authorizes the collection of data for 90-day periods without any 

factual predicate supporting the acquisition or collection of data. It is thus incompatible 

with the approach adopted in the attomey general guidelines. The order shifts the 

emphasis to the analysis of such data-which is to be conducted in connection with an 

authorized investigation. This is not, however, what is required by the FBI's own 

guidelines. It is the collection of such information that is premised upon the existence of 

an authorized investigation-not the subsequent analysis of data in the course of the 

same. 

b. Specificity 

According to the Attorney General guidelines, for predicate investigations (for which 

tangible items orders under section 215 may be sought) there is a specificity required 

prior to the collection of information-namely, that the investigation be premised upon 

384 /d.. at 20. 385 Office of the Att'y Gen., Attorney General's Guidelines on General Crimes, Racketeering Enterprise and 

Domestic Security/Terrorism Investigations Il(b)(5)(a)-(c) (1989), 

http://www.justice.gov/ag/readingroom/generalcrimea.htm#general. 

386 The guidelines explain: "A predicated investigation relating to a federal crime or threat to the national 

security may be conducted as a preliminary investigation or a full investigation. A predicated investigation 

that is based solely on the authority to collect foreign intelligence may be conducted only as a full 

investigation." Mukasey, The Attorney General's Guidelines for Domestic FBI Operations 21 (2008). 387 /d. at21-22. 388 /d. at 23. 

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the past or present wrongdoing or foreign intelligence activities of specific individuals, 

groups, or organizations. The telephony metadata program, in contrast, collects all call 

records, without specifying the individuals, groups, or organizations of interest. 

For the past decade, specificity has been integral to the guidelines' approach. Under 

the 2003 Attorney General guidelines, for instance, preliminary investigations were 

authorized "when there is information or an allegation indicating that a threat to the 

national security may exist."389 Such investigations were particular, in that they related to 

specific individuals, groups, and organizations.390 

Under the 2008 guidelines, a preliminary investigation must relate to "a" federal 

crime or threat to national security. For foreign intelligence gathering, the guidelines 

require that only full investigations may be used. These are defined in singular terms, 

such as "An activity constituting a federal crime or a threat to national security."391 

Alternatively, the circumstances may indicate that "An individual, group, organization, 

entity" is or may be a target of an attack, or "victimization, acquisition, infiltration, or 

recruitment in connection with criminal activity" is underway. 392 For enterprise 

investigations, the text of the guidelines clearly refers to "the group or organization".J93 

Not only are the investigations specific with regard to the targets, but they are 

specific with regard to the facts that support the initiation of the predicate investigation. 

For enterprise investigations, this means that there must be "an articulable factual basis 

for the investigation that reasonably indicates that the group or organization" was 

involved in the commission of certain crimes and activities.394 

Full investigations, in turn, require specific and articulable facts giving reason to 

believe that a threat to national security may exist.395 Like preliminary investigations, 

such inquiries as specific in that they may relate to individuals, groups, and 

organizations. 396 

In contravention of the Attorney General Guidelines, the telephony mctadata program 

collects data, using precisely those tools that are limited to preliminary and full 

investigations, absent the specificity otherwise required. 

c. Future Authorized Investigations 

Third, FISA contemplates the relevance of information to an investigation already in 

existence at the time the order is granted. The statutory language is very specific. 

Applications must include "a statement of facts showing that there are reasonable 

grounds to believe that the tangible things sought are relevant to an authorized 

investigation. " 397 The word "are" before "relevant" suggests that at the time the records 

are being sought, their relevance to an investigation must be established. 

The orders issued by FISC, however, depart from the statutory language, 

empowering the NSA to obtain the data in light of their relevance to "authorized 

investigations"-and requiring telecommunications companies to indefinitely provide 

such infonnation in the future. 398 How can the court know that all such telephony data 

"'AG NSI Guidelines, supra note 328, at 3. 

""Jd. at 4. 391 Michael B. Mukasey, The Attorney General's Guidelines for Domestic FBI Operations 21 (2008), 

available at http://www.justice.gov/ag/readingroom/guidelines.pdf. 

392 !d. 393 !d. at 23. 394 !d. 

J9l !d. 

396 !d. 397 50 U.S.C. ~186l(b)(2)(A) (2006). 

J9S Primary Order at 2, In ReApplication of the Federal Bureau oflnvestigation for an Order Requiring the 

Production of Tangible Things From [REDACTED], No. BR 13-80 (FISA Ct. Apr. 25, 2013), available at 

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will continue to be relevant to investigations that are not yet opened? Indeed, as noted by 

amici in In Re Electronic Privacy Information Center, Congress could have used any 

number of alternative auxiliary verbs-"such as 'can'; 'could'; 'will' or 'might.' But it 

chose not to do so. Instead, Congress required relevance to an investigation existing at 

the time of the application."399 

In addition, the information sought must be relevant "to an authorized investigation." 

This is both singular ("an") and past tense, in that is has already been "authorized." The 

House Report that accompanied the first introduction of the business records provisions 

explained that the purpose of this language was to provide "for an application to the FISA 

court for an order directing the production of tangible items such as books, records, 

papers, documents and other items upon certification to the court that the records sought 

are relevant to an ongoing foreign intelligence investigation."400 Yet how can the court 

with any certainty suggest that all investigations in the future will be authorized? 

The government's argument, instead of centering on a particular investigation, 

appears to create a categorical exception for the collection of records. Namely, it argues 

that when the government "has reason to believe that conducting a search of a broad 

collection of telephony metadata records will produce counterterrorism information", 

"the standard of relevance under Section 215 is satisfied."401 That is, it is the nature of 

the information extracted, not the prior existence of a directly related, authorized 

investigation, that is of moment. "Authorized investigations" thus become merely a 

category for which the information is useful. 402 Indeed, the language in the FISC order is 

not "an authorized investigation", but, rather, "authorized investigations." 

The fact that the government has one investigation open on al Qaeda-or even 

"thousands of open full or enterprise investigations on terrorist groups or targets and/or 

their sponsors, some or all of which could underlie the bulk telephony metadata 

collection applications and orders"403 fails to account for the fact that most of the records 

collected are not in any way directly connected to these authorized investigations. 

This interpretation, moreover, contradicts Congressional intent. As Representative F. 

James Sensenbrenner, one of the principal authors of the USA PATRIOT Act, noted, 

"Congress intended to allow the intelligence communities to access targeted information 

for specific investigations. How can every call that every American makes or receives be 

relevant to a specific investigation? This is well beyond what the Patriot Act allows.'.404 

B. Subpoena Duces Tecum 

The only express limit on the type of tangible item that can be subject to an order under 

50 U.S.C. ~ 186! is that it '·can be obtained with a subpoena duces tecum issued by a 

court of the United States in aid of a grand jury investigation or with any other order 

issued by a court of the United States directing the production of records or tangible 

things."""' FISC, accordingly, took the position in its order authorizing the telephony 

http://www.dni.gov/tiles/documents."PrimaryOrdcr Collection 215.pdf( "[T]he court finds as follows: (1) 

There arc reasonable grounds to believe that the tangible things sought are relevant to authorized 

investigations (other than threat assessments) being conducted by the FBI. .. ") 399 Brief for Cato Institute as Amicus Curiae Supporting Petitioner, In Re Electronic Privacy Information 

Center, No. BR 13-80 (FISA Ct. Apr. 25, 20I3) (No. 13-58), at *4. 400 H.R. REP. No. 107-236, at 6I (2001) (emphasis in original). 401 Section 215 White Paper, supra note 2, at 8-9. 

4D2 See id. at 6 ("The telephony metadata records are sought for properly predicated FBI investigations into 

specific international terrorist organizations and suspected terrorists.") 403 Kris, supra note 328, at 19-20. 404 Jim Sensenbrenner, This Abuse of the Patriot Act Must End, GUARDIAN (June 9, 2013 07:00 EDT), 

http://www.theguardian.com/commentisfree/2013/jun/09/abuse-patriot-act-must-end. 

4Ds 50 U.S.C. ~lo6l(clf2i(Dl !2001>1. 

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metadata program that "The tangible things sought could be obtained with a subpoena 

duces tecum issued by a court of the United States in aid of a grand jury investigation or 

with any other order issued by a court of the United States directing the production of 

records or tangible things."406 The court later explained, "Call detail records satisfy this 

requirement, since they may be obtained by (among other means) a 'court order for 

disclosure' under 18 U.S.C.A. §2703(d). Section 2703(d) permits the government to 

obtain a court order for release of non-content records, or even in some cases of the 

contents of a communication, upon a demonstration of relevance to a criminal 

investigation."407 

A subpoena duces tecum is a writ or process used to command a witness to bring 

with him and produce to the court books, papers, &c., over which he has control and 

which help to elucidate the matter in issue. 408 Unlike warrants, something less than 

probable cause is required. The rationale behind this is that the purpose of the instrument 

is not to conduct a search absent a suspect's consent, but, rather, to obtain documents and 

information that the prosecution has concluded will be material in a case.409 

The authority to issue a subpoena is not unlimited. Under the Federal Rules of Criminal 

Procedure, "the court. .. may quash or modify the subpoena if compliance would be 

unreasonable or oppressive."410 Precisely what counts as reasonable (or not) is heavily 

context-dependent. 411 In United States v. Nixon, the Court laid out a three-part test, 

requiring the Government to establish relevancy, admissibility, and specificity, in order to 

enforce a subpoena in the trial context.412 

The Nixon standard does not apply in the context of grand jury proceedings.413 In 

1991 the Court explained: 

Nixon's multi-factor test would invite impermissible procedural delays and 

detours while courts evaluate the relevance and admissibility of documents 

sought by a particular subpoena. Additionally, requiring the Government to 

explain in too much detail the particular reasons underlying a subpoena threatens 

to compromise the indispensable secrecy of grand jury proceedings. Broad 

disclosure also affords the targets of investigation far more information about the 

grand jury's workings than the Rules of Criminal Procedure appear to 

contemplate.414 

The Court went on to note that this does not mean that the grand jury's investigatory 

powers are limitless. To the contrary, it is still subject to Rule 17(c). Nevertheless, grand 

jury subpoenas are given the benefit of the doubt, with the burden of showing 

unreasonableness on the recipient seeking to avoid compliance. 415 For claims of 

irrelevancy, motions to quash "must be denied unless the district court determines that 

there is no reasonable possibility that the category of materials the Government seeks will 

produce information relevant to the general subject of the grand jury's investigation."416 

400 !d. at 3. 407 Supp. Op. at note 1, In ReProduction of Tangible Things from [REDACTED), No. BR 08-13, (FISA Ct. 

[date]) (emphasis in original). 

""' 3 WILLIAM BLACKSTONE. COMMENTARIES *382. 409 Joshua Gruenspecht, "Reasonable" Grand Jury Subpoenas: Asking for Information in the Age of Big 

Data, 24 HARV. J. OFL. & TECH. 544 (201!). 410 Fed. R. Crim. P. l7C. 411 New Jersey v. T.L.O., 469 U.S. 325,337 (1985). 412 United States v. Nixon, 418 U.S. 683, at 699-700 (1974). 413 United States v. R. Enterprises, Inc., 498 U.S. 292 (!99!). 414 !d. at 292-93. 415 !d. at 293. 416 !d. 

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156 

At the broadest level, then, FISC's assertion, at least with regard to a grand jury 

subpoena, appears to be valid. But there are three critical flaws in the court's reasoning: 

first, subpoenas may not be used for fishing expeditions; second, they must be focused on 

specific individuals or alleged crimes prior to the collection of information; and third, the 

emphasis is on past wrongdoing-not on potential future relationships and actions. In 

addition, remarkably, FISC has openly admitted that the telephony metadata order it 

issued violates the statutory language requiring that the information to be obtained 

comport with the requirements of a subpoena. 

1. Not for Fishing Expeditions 

Even with such deference granted to subpoenas issued by grand juries, such instruments 

may not be used for fishing expeditions-i.e., enabling individuals to obtain massive 

amounts of information whence evidence can be derived. 417 That is to say, a grand jury 

could not convene in Bethesda, Maryland, and simply begin collecting telephony 

metadata, which it could subsequently mine to find evidence of criminal behavior. 

To the contrary, an investigator must have a reasonable suspicion that some 

document or communication exists, in order for the Court to order its production. A 

general suspicion that collecting and analyzing all telephone records in the United States 

might yield some evidence of criminality is many steps removed from the prior suspicion 

of a particular act of criminality that characterizes grand jury subpoenas. 

Almost all of the telephony metadata collected is utterly unrelated to criminal 

activity. In Judge Reggie Walton's words, 

[N)early all of the call detail records collected pertain to communications of nonU.S. persons who are not the subject of an FBI investigation to obtain foreign 

intelligence information, arc communications of U.S. persons who are not the 

subject of an FBI investigation to protect against international terrorism or 

clandestine intelligence activities, and are data that otherwise could not be legally 

captured in bulk by the government. Ordinarily, this alone would provide 

sufficient grounds for a FISC judge to deny the application.41 s 

Precisely because the information is not connected, in any way, to criminal activity, 

Walton suggests that it could not, in any other way, even be collected. 

While new technologies may change what is possible in terms of the amount of 

records obtained or the level of insight that can be gleaned, they do not invalidate the 

underlying principle. In a world limited by the physical manifestation of evidence, 

practicality helped to cabin the scope of subpoenas. Digitization, however, does not alter 

the importance of tying the compulsion of evidence directly to an underlying crime. 

2. Specificity 

Grand jury investigations are specific. That is, they represent investigations into 

particular individuals, or particular entities, in relation to which there is reasonable 

suspicion that some illegal behavior has occurred. The compelled production of records 

or items is thus limited by reference to the target of the investigation. 

If a grand jury were, for instance, focused on the potentially criminal acts of the head 

of a crime family in New York, absent reasonable suspicion of some sort of connection to 

417 !d. at 299 ("Grand juries are not licensed to engage in arbitrary fishing expeditions."). 418 FISC Order, Mar. 5, 2009, p. 12, available at 

http://www.dni.gov!fi!csldocumentslscctionlpub March%202%202009%200rdcr%20from%20FlSC.pd[ 

Order at 9, In ReProduction of Tangible Things from [REDACTED], No. BR 08-13 (FISA Ct. Mar. 2, 

2009), available at 

]lttp:l/www.dni.gov/tiles/docuf!Jcnts'scctionlpub March%202%20200')\}'o200rder01.,20from%20F!SC.pill', 

61 
157 

the syndicate, it would not issue a subpoena for the telephone records of the ParentTeacher's Association at Briarwood School in Santa Clara, California. 

In contrast, the Section 215 orders are broad and non-specific. That is, on the basis 

of no particular suspicion, all call records, the "vast majority" of which (according to 

FISC's own language) are of a purely local nature, are swept up by the NSA.419 

3. Past Crimes 

Grand jury investigations are also retroactive, searching for evidence of a past crime. 

The telephony metadata orders, in contrast, are both past and forward-looking, in that 

they anticipate the possibility of illegal behavior in the future. Most of the individuals in 

the database are suspected of no wrongdoing whatsoever. Yet the minimization 

procedures allow for any information obtained from mining the data to then be used in 

criminal prosecution. This is an unprecedented use of subpoena information-gathering 

authority. It amounts to a permanent, ongoing grand jury investigation into all, possible, 

future criminal acts. 

4. March 2009 FISC Opinion 

FISC has openly recognized that the information it obtains from the metadata program 

could not otherwise be collected with any other legal instrument-including a subpoena 

duces tecum. In a secret opinion in March 2009 Judge Reggie Walton wrote: 

Because the collection would result in NSA collecting call detail records 

pertaining to [REDACTED] of telephone communications, including call detail 

records pertaining to communications of United States (U.S.) persons located 

within the U.S. who are not the subject of any FBI investigation and whose 

metadata could not otherwise be legal(v captured in bulk, the government 

proposed stringent minimization procedures that strictly controlled the 

acquisition, accessing, dissemination, and retention of these records by the NSA 

and FBI.420 

Later in the document, he again noted that the information "otherwise could not be 

legally captured in bulk by the government".421 

This assertion directly contradicts the statutory requirement that the information 

could otherwise be obtained via subpoena duces tecum. It amounts to an admission, by 

the Court, that the program violated the statute. 

What makes the failure of the Court to prevent the illegal program from continuing 

even more concerning, perhaps, is Judge Walton's explanation of why, even though the 

information could not legally be obtained in any other way, FISC allowed the 

government to proceed. He continues, 

Nevertheless, the FISC has authorized the bulk collection of call detail records in 

this case based upon: (1) the government's explanation, under oath, of how the 

collection of and access to such data are necessary to analytical methods that are 

vital to the national security of the United States; and (2) minimization 

procedures that carefully restrict access to the BR metadata and includes specific 

oversight requirements. 422 

419 FISC Order at 2, No. 06-05 (FISA Ct. May 24, 2006), available at 

http://s3.documentcloud.orgidocuments/785206/pub-may-24-2006~order-from-fisc.lli!f: 

420 In reProduction of Tangible Things From [REDACTED], Order, No. BR 08-13, at 2-3 (FISA Ct. Mar. 2, 

2009), available at 

~'.,t{J2.:flwv-:_w,dnl,gov/fil_e.s/docmn@ts/~ecti<''}/p!lb_l'vf?rch%2.0.21:{>f02009%2QOrd""129frsnn%2Q!'I~.G •. P<If • ld. at 12. 422 !d. 

62 
158 

In other words, FISC allowed an illegal program to operate because the government (1) 

promised that it was vital to U.S. national security, and (2) was directed by the court to 

police its own house by following the minimization procedures. The former is a flimsy 

excuse for allowing the executive branch to break the law. The latter highlights the 

extent to which the Court, precisely because of the size of the collection program in 

question, was dependent on the NSA: "in light of the scale of this bulk collection 

program, the Court must rely heavily on the government to monitor this program to 

ensure that it continues to be justified ... and that it is being implemented in a manner 

that protects the privacy interests of U.S. persons."423 

Returning to the earlier point, in relation to FISC's abdication of its responsibilities: 

it was to protect U.S. persons' privacy interests that FISC was created in the first place. 

Congress did not anticipate that FISC would simply hand over this responsibility to the 

NSA, once the NSA requested such a sweeping surveillance program that FISC lost the 

ability to conduct oversight. 

C. Evisceration of Pen/Trap Provisions 

All of the information obtained through the telephony metadata program is provided for 

in FISA 's pen register and trap and trace provisions. In contrast to the process followed 

by the government with regard to section 215, however, the pen/trap provisions require 

prior targeting and limited collection of information. The use of second 215 to obtain 

seemingly limitless information amounts to an end-run around the pen/trap provisions. 

D. Potential Violation of Other Provisions of Criminal Law 

There are, in addition, other statutory provisions that raise question about the legality of 

the current telephony metadata program. Namely, in December 2008 FISC issued a 

Supplemental Opinion, noting the Court's reasons for concluding that the records to be 

produced pursuant to the telephony metadata orders were properly subject to production 

under 50 U.S.C. §1861.424 The reason behind the document appears to be that although 

such orders were previously approved, for the first time the government cited 18 

U.S.C.A. bas identified the provisions of 1R U.S.C.A. ~~2702-2703 as releYant to the 

question. 

Under 50 U.S.C. §!R6l. Congress empowered the go\'Cmment to apply to the FISC 

"for an order requiring the production of at7)" tangible things (including books. records. 

papers. documents. and other itcms."''2

' The Court placed special emphasis on the usc of 

the word "any", suggesting that it "naturally connotes ·an expansive meaning,' extending 

to all members of a common set, unless Congress employed 'language limiting [its] 

breadth."""' 

The Court had apparently considered "any" to be without limit, until 18 U.S.C.A. 

§§2702-2703 was brought to its attention. This statute bid out an apparently e\haustiYe 

set of circumstances under which telephone service proYidcrs could provide customer or 

423 /d. 424 In reProduction of Tangible Things From [REDACTED], Supplemental Opinion, No. BR 08-13 (FISA 

Ct. Mar. 2, 2009), available at 

http:.'.twwv.,_dni.go_y/filesldocuments/sectiq!l/pub Dec%2012(%20200S~·020Suim1ementai~:::o200pinions%20fro 

m%20the%20FlSC.pd[ 

415 50 U.S.C.A. s I X61(o)( 1) (2006)(~mphosis added). 426 In reProduction ofTangib1e Things From [REDACTED], Supplemental Opinion, No. BR 08-13, at 1 

(FISA Ct. Mar. 2, 2009), available at 

http_:{h,y"~'U:li1LRCJ.'!i_f'iles/ docu_me n!,';/secti()!]/Qub j)_ef1o2 0 1 2 ~~_Q_~08 %2 0 SuJlpJcll'lentaJY~200pini ot}s~QOtro 

rn"/220the%20FJSC.pdf (citing United States v. Gonzales, 520 U.S. l, 5 (!997); accord Ali v. Federal Bureau 

of Prisons, 128 S. Ct. 831,836 (2008)). 

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159 

subscriber records to the gorernmcnt.~" An order under 50 U.S.C. ~ 1 S61 was not 

included in this list. At the same time that Congress had passed Section 2!5 of the USA 

PATRIOT Act_ morcowr. it had amended sccticms 2702 and 2703 in ways that appeared 

to re-affirm that communications service prm iders could only divulge records to the 

gorcrnmcnt in particular circumstances-without specifically noting FISC ordcrs. 4

" 

Judge Reggie Walton reconciled this tension in a most curious manner. He pointed 

to National Security Letters-a completely different form of subpoena (i.e., an 

administrative subpoena), noting that Congress, in the USA PATRIOT Act, empowered 

the FBI, without prior judicial review, to compel a telephone service provider to produce 

"subscriber information and toll billing records information", on the basis of FBI 

certification of relevance to an authorized foreign intelligence investigation.429 Judge 

Walton pointed to the heightened requirements of ~ 1861. i.e .. that the gO\-crnmcnt 

pro ride a "'statement of facts sho\ving that there arc reasonable grounds to bclic\'c tint the 

tangible things ;;ougllt arc relevant" to a foreign intelligence inrestigatillll. and that FISC 

determine that the application is sufficient. He then noted that 02703(c)(2) expressly 

permits the government to usc adminio;trativc subpoenas to obtain certain categories of 

non-content information from a provider-and concluded that. surely. Congress could not 

ha\C intended a higher standard for FISC orders. 

The problem, of course. with his reasoning is that despite the precision of !8 U.S.C. 

~~2702-2703, and the concurrent amendment of these sections with the introduction of 

USA PATRIOT Act ~215. Congress nowhere includes in the language of lR USC 

~~1703-2703 pro1·ision for FISC orders as an exception to the closed set. Instead. it 

allmYs the pro1·ision uf tclcphuny mctadata to the government only in t1vo cases: first. 

when the governmental entity uo;cs an administrative subpoena authorized by a Federal or 

State statute; or. o;ccond. when a Federal or State grand jury or trial subpoena issucs. 4Y' 

The next paragraph. moreover. tics the provision directly to the actual commission of a 

crime. A court order for disclosure under ~2703(cl may only be issued by a court of 

competent jurisdiction where the government can pnwidc "specific and articulablc facts 

;;ho11·ing that then; arc reasonable grounds to believe that. the records or other 

information sought. arc rdc1·ant and material to an ongoing criminal investigation:·4!

1 

The types of records being sought by the F131 from FISC, in contrast. extended well 

beyund records either rclc\ ant or material to an ongoing criminal i1wcstigation. 

Furthermore. under I g USC ~2703(d). the judiciary is empowered to quash or modify 

such orders where the records being requested "arc unusually Hlluminous in naturc:·4

'' 

It would be diftlcult to imagine any tckpbony mctadata database more voluminous than 

one collecting all call data in the United States. As ;;uch. the statute contemplates yet 

fi.1rthcr limits on the collection of information. 

427 18 U.S.C.A. § 2702(a)(3) (2013) (except as provided in §2702(c), a provider "shall not knowingly divulge 

a record or other [non-content] information pertaining to a subscriber or customer. .. to any governmental 

entity"); 18 U.S.C.A. §2703(c)(l) (2013) ("A governmental entity may require a provider ... to disclose a 

record or other [non-content] information pertaining to a subscriber ... or customer. .. only when the 

governmental entity" proceeds according to one of the potential routes laid out in §2703(c)(l)(A)-(E) 

(2013)). 

428 In reProduction of Tangible Things From [REDACTED], Supplemental Opinion, No. BR 08-13, at 3 

(FISA Ct. Mar. 2, 2009), available at 

h!1Q:.iiwww .dni. gov ililes/ documents/section/pub Dec%2 0 12 _'Yo2 0200~ %20Supp I em en_hal %200pinions%2 0 fro 

m%20the%20FISC.pdf. 

429 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct 

Terrorism (USA Patriot Act) of2001, 18 U.S.C.A. § 2709(a) (2006). 430 ld. at ~2703(c)(2). 431 Jd. at ~27031d). 432 !d ' 

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VII. CONSTITUTIONAL CONSIDERATIONS 

The government argues that the telephony metadata collection program complies with the 

Constitution.433 In doing so, it relies on Smith v. Maryland, in which the court held that 

participants in telephone calls lack a reasonable expectation of privacy (for purposes of 

the Fourth Amendment) in the telephone numbers dialed and received on one's phone. 

The government also argues that the national security interests at stake override whatever 

privacy intrusion arises from the bulk collection of telephony metadata. 434 These 

arguments are problematic. 

The telephony metadata program amounts to a general warrant, the prohibition of 

which gave rise to the Fourth Amendment. Reliance on Smith v. Maryland, moreover is 

misplaced: the case involved individualized, reasonable cause to believe that the target of 

the pen register had engaged in criminal behavior and threatening and obscene conduct. 

The placement of the pen register was obtained via consent. Significant technological and 

societal changes in the interim further render the third party doctrine a moot point. While 

lower courts might follow the Third Party Doctrine, the Supreme Court appears poised to 

recognize exceptions in light of modem interaction. 

A. The Fourth Amendment Prohibition on General Warrants 

At the time of the founding, English courts rejected general warrants. A different 

standard, however, marked the crown's treatment of the American colonies. This 

angered the colonists, who saw themselves, first and foremost, as Englishmen-and 

therefore deserving of all the rights and privileges accorded to English subjects. 

Perhaps the most famous case establishing the right of Englishmen to be free of a 

general writ dates from November 1762, when King George III's messengers broke into a 

man's home to execute a warrant issued by the Secretary of State.435 The warrant 

empowered the king's men "to make strict and diligent search for ... the author, or one 

concerned in the writing of several weekly very seditious papers."436 The men, who 

searched John Entick's home for four hours without his consent and against his will 

"broke open, and read over, pried into and examined all [of his] private papers [and] 

433 See Section 215 White Paper, supra note 223, at 3. 434 Id. 

435 Entick v. Carrington, 19 Howell's State Trials 1029 (1765). 436 The full warrant read: 

!d. 

George Montagu Dunk, earl of Halifax, viscount Sunbury, and baron Halifax one of the 

lords of his majesty's honourable [sic.] privy council, lieutenant general of his majesty's 

forces, lord lieutenant general and general governor of the kingdom of Ireland, and 

principal secretary of state, etc. these are in his majesty's name to authorize and require 

you, taking a constable to your assistance, to make strict and diligent search for John 

Entick, the author, or one concerned in writing of several weekly very seditious papers, 

entitled the Monitor, or British Freeholder, No 357, 358, 360, 373, 376, 378, 379, and 

380, London, printed for J. Wilson and J. Fell in Pater Noster Row, which contains gross 

and scandalous reflections and invectives upon his majesty's government, and upon both 

houses of parliament; and him, having found you are to seize and apprehend, and to 

bring, together with his books and papers, in safe custody before me to be examined 

concerning the premisses, and further dealt with according to law; in the due execution 

whereof all mayors, sheriffs, justices of the peace, constables, and other majesty's 

officers and military, and all loving subjects whom it may concern, are to be aiding and 

assisting to you as there shall be occasion; and for so doing this shall be your warrant. 

Given at St. James's the 6th day of November 1762, in the third year of his majesty's 

reign, Dunk Halifax. To Nathan Carrington, James Watson, Thomas Ardran, and Robert 

Blackmore, four of the majesty's 'messengers in ordinary.' 

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books."437 Upon departure, the men seized Entick's documents, charts, pamphlets, and 

other materials. 438 

Chief Justice of the Common Pleas Charles Pratt, First Earl Camden, ruled that both 

the search and the seizure was unlawful. He explained: 

Suppose a warrant which is against law be granted, such as no justice of peace, or 

other magistrate high or low whomsoever, has power to issue, whether that 

magistrate or justice who grants such warrant, or the officer who executes it, are 

within the [statute] 24 Geo. 2, c. 44? To put one case ... suppose a justice of 

peace issues a warrant to search a house for stolen goods, and directs it to four of 

his servants, who search and find no stolen goods, but seize all the books and 

papers of the owners of the house, whether in such a case would the justice of 

peace, his officers or servants, be within the [statute ]?439 

Two aspects to the case proved particularly troubling: first, the writ had empowered the 

crown to seize all documents-not just those of a criminal nature; and, second, no 

demonstration had been made prior to the search and seizure, establishing the probability 

that Entick was engaged in criminal activity: 

The warrant in our case was an execution ... without any previous summons, 

examination, hearing the plaintiff, or proof that he was the author of the supposed 

libels; a power claimed by no other magistrate whatever. .. it was left to the 

discretion of these defendants to execute the warrant in the absence or presence 

of the plaintiff, when he might have no witness present to see what they did; for 

they were to seize all papers, bank bills, or any other valuable papers they might 

take away if they were so disposed; there might be nobody to detect them. 440 

The court suggested that since the Glorious Revolution and the restoration of William 

and Mary to the throne, such powers had been denied to the crown. It was precisely such 

aggrandizement of power that had led to revolution in the first place. The Chief Justice 

stated "we can safely say there is no law in this country to justify the defendants in what 

they have done; if there was, it would destroy all the comforts of society; for papers are 

often the dearest property a man can have."441 The Court flatly rejected the use of such 

general warrants. 

The use of writs of assistance played a central role in lending speed to the American 

Revolution. Acting under writs established by Parliamentary statute, officers of the crown 

had permission to search the homes, papers, and belongings of any person.442 As early as 

1660 legislation to prevent Fraudes and Concealments of His Majestyes Customes and 

Subsidyes empowered magistrates to: 

[I]ssue out a Warrant to any person or persons thereby enableing him or them 

with the assistance of a Sheriffe Justice of the Peace or Constable lo enter into 

any House in the day time where such Goods are suspected to be concealed, and 

in case of resistance to breake open such Houses and to seize and secure the same 

goods soe concealed, and all Officers and Ministers of Justice are hereby 

required to be aiding and assisting thereunto. 443 

437 Jd 

438 !d. 

439 !d. 

440 Jd 

441 !d. 442 Officials could "enter and go into any House, Warehouse, Shop, Cellar, or other Place" to seize goods. 

M.H. SMITH, THE WRITS OF ASSISTANCE CASE I (1978) (quoting a 1767 measure by Parliament, establishing a 

new writ of assistance in America). 443 An Act to Prevent Fraudes and Concealments of His Majcstyes Customes and Subsidyes, 12 Car. II, c. 19 

(1660). See also Act for Preventing Fraudes and Regulating Abuses in his Majesties Customes, 14 Car. II, c. 

II (1662). A good discussion of the early writs of assistance is located in Joseph R. Frese, EARLY 

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162 

The writs came to be seen as the worst instrument of arbitrary power, turning colonists 

against the crown. 

Their use was part of a general crack-down engineered by British Prime Minister 

William Pitt, who directed the American colonial governors and royal customs officers to 

more strictly enforce trade and navigation laws -specifically, to "make the strictedst [sic.] 

and most diligent [sic.] Enquiry into the State of this dangerous and ignominious Trade." 

He ordered that every step authorized by law be taken "to bring all such heinous 

Offenders to the most exemplary and condign [sic.] Punishment."444 

In response to Pitt's order, the governor of Massachusetts Bay Colony began making 

use of the writ, prompting Boston merchants to hire James Otis to challenge their 

constitutionality. In what has become one of the most famous examples of early 

American legal oration, Otis argued that the writs were contrary to "the fundamental 

principles of law". Scholars hail Otis' argument in the case as helping "to lay the 

foundation for the breach between Great Britain and her continental colonies."445 As A.J. 

Langguth observed, at the Writs of Assistance trial, "James Otis stood up to speak, and 

something profound changed in America."446 

One of our best accounts of Paxton's Case comes from John Adams, who was present 

at the argument and whose mentor, Jeremiah Grindley, the most distinguished member of 

the bar in Boston, opened the case for the crown.447 In replying to Grindley, Otis stated 

that his efforts were being made "out of regard to the liberties of the subject." The rights 

of British subjects were under assault, compelling him to oppose "all such instruments of 

slavery on the one hand and villainy on the other as this Writ of Assistance is." 

For Otis, the writ was "the worst instrument of arbitrary power." He ignored the 

crown's claim of necessity-and current practice-noting that "the writ prayed for in this 

petition, being general, is illegal." He highlighted four concerns: first, it was universali.e., it could be executed by anyone in possession with it; second, it was perpetual in that 

it indefinitely allowed the holder of the writ to conduct searches; third, no prior evidence 

of wrongdoing need be involved in its execution; and fourth, there was no requirement to 

swear to suspicion of wrongdoing or, following execution, to inquire into its exercise. 

"One of the most essential branches of English liberty is the freedom of one's house," 

Otis opined. General warrants would annihilate the privilege associated with that right. 448 

Although the court ruled against Otis, John Adams later wrote that his arguments 

"breathed into this nation the breath of Iife."449 Indeed, on June 12, 1776 the Virginia 

Constitutional Convention adopted the Virginia Declaration of Rights-a document that 

deeply influenced the Declaration of Independence, as well as other states' constitutions, 

PARLIAMENTARY LEGISLATION ON WRJTS OF ASSISTANCE, PUBLICA TJONS OF THE COLONIAL SOCIETY OF 

MASSACHUSETTS (1959). 444 Horace Gray, Writs of Assistance in JOSIAH QUINCY, JR., REPORTS OF CASES ARGUED AND ADJUDGED IN 

THE SUPER! OR COURT OF JUDICATURE OF TilE PROVINCE OF MASSACHUSETTS BAY BETWEEN 1761 AND 1772 

407-08 (Samuel M. Quincy ed. (1865). 445 LAWRENCE HENRY GIPSON, THE COMING OF THE REVOLUTION, 1763-1777 39 (1954). 446 A.J. LANGGUTH, PATRJOTS: THE MEN WHO STARTED THE AMERJCAN REVOLUTION 22 1998. For excellent 

studies of the case Otis argued see Gray, supra note 444, at 395-511; M. H. SMITll, THE WRJTS OF ASSISTANCE 

CASE (1978); James M. Farrell, The Child Independence is Born: James Otis and Writs of Assistance in 

RHETORJC, INDEPENDENCE AND NATIONHOOD, Stephen E. Lucas ed., Vol. 2 of A Rhetorical History of the 

United States: Significant Moments in American Public Discourse (Martin J. Medhurst ed.). 447 Farrell, supra note 446, at 16. See also Paxton's Case of the Writ of Assistance in JOSIAH QUINCY, JR., 

REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF 

MASSACHUSETTS BAY BETWEEN 1761 AND 1772 (Samuel M. Quincy ed. (1865) 448 Otis' speech is taken from L. KIN'VIN WROTH & HILLER D. ZOBEL, LEGAL PAPERS OF JOHN ADAMS VOL. 2 

139-144 (1965). See also discussion in Farrell, supra note 446, at 19-22. 449 TilE WORKS OF JOHN ADAMS VOL. X. 276. 

67 
163 

and became the basis for the Bill of Rights-without which, the Constitution would never 

have been ratified. 

The Virginia Declaration of Rights stated, inter alia, "That general warrants, whereby 

an officer or messenger may be commanded to search suspected places without evidence 

of a fact committed, or to seize any person or persons not named, or whose offense is not 

particularly described and supported by evidence, are grievous and oppressive and ought 

not to be grantcd."450 The Massachusetts Constitution of 1780 similarly objected to the 

use of general warrants: 

Every subject has a right to be secure from all unreasonable searches and seizures 

of his person, his houses, his papers, and all his possessions. All warrants, 

therefore, are contrary to this right, if the cause or foundation of them be not 

previously supported by oath or affirmation, and if the order in the warrant to a 

civil officer, to make search in suspected places, or to arrest one or more 

suspected persons, or to seize their property, be not accompanied with a special 

designation of the persons or objects of search, arrest, or seizure; and no warrant 

ought to be issued but in cases, and with the formalities, prescribed by the 

laws.451 

The New Hampshire Constitution of 1784 lifted the clause almost verbatim.452 The 

Virginia ratifying convention of 1788 made a point to ensure that the subsequent 

Constitution would incliude a provision affirming that "every freeman has a right to be 

secure from all unreasonable searches and siezures of his person, his papers and his 

property." 453 New York, in turn, required nearly identical language, as did North 

Carolina-even as Virginia, New York and North Carolina all condemned overbroad 

warrants as '"therefore' unreasonable-'grievous,' 'oppressive, and 'dangerous."' 454 

Consistent with these states' understandings, James Madison's first draft of the Fourth 

Amendment addressed the right of the people "to be secured in their persons, their houses, 

their papers, and their other property, from all unreasonable searches and seizurcs."455 

Madison understood the clause as a ban against general warrants.456 

In 1886 the Supreme Court recognized the importance of the writs and the Founders' 

rejection of the same as encapsulated in the Fourth Amendment: 

In order to ascertain the nature of the proceedings intended by the Fourth 

Amendment ot the Constitution under the terms "unreasonable searches and 

450 Va. Decl. of Rights§ 10. 451 Mass. Cons!. of 1780, pt. 1, art. XIV. 452 New Hampshire Canst. 1784, Art. XIX. 

!d. 

Every subject hath a right to be secure from all unreasonable searches and seizures of his 

person, his houses, his papers, and all his possessions. All warrants, therefore, are 

contrary to this right, if the cause or foundation of them be not previously supported by 

oath, or affirmation; and if the order in the warrant to a civil officer, to make search in 

suspected places, or to arrest one or more suspected persons, or to seize their property, be 

not accompanied with a special designation of the persons or objects of search, arrest, or 

seizure; and no warrant ought to be issued but in cases, and with the formalities 

prescribed by the laws. 

453 EDWARD DUMB AULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 184 (1957), quoted in Akhil Reed 

Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30 Suffolk U. L. Rev. 53,68 (1996). 454 !d., at 184, 191, 200-01, quoted and cited in Amar, supra note 453, at 68, 455 !d., at 207, quoted in Amar, supra note 453, at 68. (emphasis added). Note that the historical antecedent 

suggests a broad reading of the "persons, houses, papers, and effects" language of the Fourth Amendment. 456 Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV., 547, 555 (1999). See 

a/soN. Lasson, THE HISTORY AND DEVELOPMEi'iT OF THE FOURTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION I 03 (1937); Robert M. Bloom, Warrant Requirement- The Burger Court Approach, 53 UNIV. 

OF COLORADO L. REV. 691, 692 (1982). 

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164 

seizures," it is only necessary to recall the contemporary or then recent history of 

the controversies on the subject, both in this country and in England. The 

practice had obtained in the colonies of issuing writs of assistance to the revenue 

officers, empowering them, in their discretion, to search suspected places for 

smuggled goods, which James Otis pronounced "the worst instrument of 

arbitrary power, the most destructive of English liberty, and the fundmcntal 

principles of law, that ever was found in an English law book;" since they placed 

"the liberty of every man in the hands of every petty officer." This was in 

February, 1761, in Boston, and the famous debate in which it occurred was 

perhaps the most prominent event which inaugurated the resistance of the 

colonies to the oppressions of the mother country. "Then and there," said John 

Adams, "then and there was the first scene of the first act of opposition to the 

arbitrary claims of Great Britain. Then and there the child !dependence was 

born.457 

The Court acknowledged the importance of Lord Camden's decision in Entick v. 

Carrington, saying, 

[Camden's] great judgment on that occasion is considered as one of the 

landmarks of English liberty. It was welcomed and applauded by the lovers of 

liberty in the colonies, as well as in the mother country. It is regarded as one of 

the permanent monuments of th eBritish Constitution, and is quoted as such by 

the English authorities on that subject down to the present time.458 

It was precisely general warrants that the Framers meant when referring to unreasonable 

searches and seizures.459 

The Supreme Court has continued, throughout U.S. history, to recognize the special 

role played by general warrants and writs of assistance in shaping the contours of the 

Fourth Amendment. In 1980 the Court recognized that it is "familiar history that 

indiscriminate searches and seizures conducted under the authority of 'general warrants' 

were the immediate evils that motivated the framing and adoption of the Fourth 

Amendment."460 General warrants were presumptively unreasonable. To drive the point 

home, the first Congress, which started out with just one sentence outlawing 

unreasonable search and seizure, went on to add a second clause to the Fourth 

Amendment, requiring that no warrant shall issue but upon probable cause-ensuring in 

the process that government officials could not issue general warrants and still comport 

with the Fourth Amendment. 

Consistent with this reading, Professor Akhil Amar, inquiring as to what the warrant 

clause means-and what the relationship is between it and the earlier reasonableness 

clause-suggests that "broad warrants-warrants that fail to meet the various 

specifications of clause two-are inherently unreasonable under clause one."461 Such a 

general warrant would immunize the officer who carried it out from a subsequent trespass 

suit.462 In the case of Entick v. Carrington, "Armed with sweeping warrants issued by 

executive officials, various govenrment henchmen broke into Englishmen's houses, 

searched their papers, arrested their persons, and rummaged through their effects, in 

hopes of finding" wrongdoing.463 

457 Boyd v. United States, I 16 U.S. 616,624-25 (1886). 458 !d. at 626. 459 !d. at 627. 460 Payton v. New York, 445 U.S. 573,583 (1980). 461 See Amar, supra note 453, at 60. 462 ld. 463 !d., at 65. 

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165 

Professor Thomas Davies similarly recognizes that "[t]he historical statements about 

search and seizure" in the fourth Amendment "focused on condemning general warrants. 

In fact, the historical concerns were almost exclusively about the need to ban house 

searches under general warrants.',464 Evidence suggests that "unreasonable searches and 

seizures" was a proxy for "the inherent illegality of any searches or seizures that might be 

made under general warrants." 465 Davies posits that the reason the Framers even 

bothered "to adopt constitutional bans against general warrants in light of the apparent 

consensus that the general warrant was illegal at common law" was because of genuine 

concern that Congress might edanger the right in the future. 466 

The FISC Order authorizing the telephony metadata program is, precisely, a general 

warrant. It authorizes the government to rummage through our papers and effects in the 

hope of finding wrongdoing. There is no previous suspicion of criminal activitiy. FISC 

admits that almost none of the information obtained relates to illegal behavior. 

It matters little whether one stores ones papers in a filing cabinet in one's den, or 

places all financial documents on the iCloud-the digital equivalent, in modern times, of 

a filing cabinet. Sheer volume of information requires individuals to arrange for storage 

of everything from medical records to family photos. Email, in turn, holds our 

correspondence-papers that we place on a server with a company with whom we have a 

contractual relationship. Banking records may be accessible over the Internet. 

This is our modern day equivalent of the papers and effects held by Entick in his 

home, and allowing the govenrment to obtain records of all of this information is the 

equivalent of a digital trespass on our private lives.467 The trespass in which the NSA is 

engaging is not supported by probable cause, it is not even supported by reasonable 

suspicion-indeed, no suspicion of any wrongdoing whatsoever is contemplated by the 

collection of myriad records of all U.S. persons. It is the equivalent of a general warrant 

and, as such, is odius to the Fourth Amendment. 

B. Third Party Data 

In defending the telephony metadata program, the government relies on the Court's 

construction of a reasonable expectation of privacy in Katz v. United States (1967) and 

argues that, consistent with Smith v. Maryland (1979) third party information is not 

constitutionally-protected. This argument fails to appreciate the fact pattern in Smith v. 

Maryland, the evolution of technology, and the manner in which society now operates. It 

also ignores that the shadow majority in U.S. v. Jones (2012), that suggests that the 

Supreme Court is moving to recognize the world in which we now live and to re-evaluate 

the level of protection afforded, consistent with the Fourth Amendment. 

464 Davies, supra note 456, at, 551. 465 Id 466 !d., at 657. 

467 Lord Camden explained in Entick v. Carrington: 

By the laws of England, every invasion of private property, be it ever so minute, is a 

trespass. No man can set his foot upon my ground without my license, but he is liable to 

an action, though the damage be nothing, which is proved by every declaration in trespass 

where the defendant is called upon to answer for bruising the grass and even treading 

upon the soil. If he admits the fact, he is bound to show, by way of justification, that 

some positive law has justified or excused him. The justification is submitted to the 

judges, who are to look into the books, and see if such a justification can be maintained 

by the text of the statute law, or by the principles of the common law. If no such excuse 

can be found or produced, the silence of the books is an authority, against the defendant, 

and the plaintiff must have judgment. According to this reasoning, it is now incumbent 

upon the defendants to show the law by which this seizure is warranted. If that cannot be 

done, it is a trespass. 

See Entick v. Carrington, 19 Howell's State Trials 1029 (1765). 

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In 1967 the Supreme Court held that the Fourth Amendment protects people, not 

places.468 Justice Potter Stewart, writing for Court, explained, "What a person knowingly 

exposes to the public, even in his own home or office, is not a subject of Fourth 

Amendment protection. But what he seeks to preserve as private, even in an area 

accessible to the public, may be constitutionally protected."409 

The government suggests that a Section 215 order is not a "search" as to any person 

because the Supreme Court "has expressly held, participants in telephone calls lack any 

reasonable expectation of privacy under the Fourth Amendment in the telephone numbers 

dialed."470 In the case in question, Smith v. Maryland, the Court held that a pen register 

placed on a telephone line did not constitute a search within the meaning of the Fourth 

Amendment, because persons making phone calls do not have a reasonable expectation 

that the numbers they dial will remain private.471 The key sentence from the decision 

centered on the customer's relationship with the telephone company: namely "a person 

has no legitimate expectation of privacy in information he voluntarily turns over to third 

parties."472 The government argues: 

Although the telephony mctadata obtained through Section 215 includes, in 

addition to the numbers dialed, the length and time of the calls and other similar 

dialing, routing, addressing, or signaling information, under the reasoning 

adopted by the Supreme Court in Smith, there is no reasonable expectation of 

privacy in such infonnation, which is routinely collected by telecommunications 

service providers for billing and fraud detection purposes.473 

For the government, the breadth of the program does not convert the collection of bulk 

data into a search.474 Further, the government argues that even if it were a search, it 

would still satiszy the reasonableness standard established by the Supreme Court to 

govern large-scale, but minimally intrusive suspicionlcss searches. Of particular 

importance here is the overriding government interest in protecting national security.475 

The problem with the government's argument is that it glosses over some glaring 

differences between the bulk collection program and the facts of Smith v. Maryland. On 

March 5, 1976, Ms. Patricia McDonough was robbed in Baltimore, Maryland. After 

giving the police a description of the robber and a 1975 Monte Carlo she had seen near 

the scene of the crime, she started receiving threatening and obscene phone calls from a 

man who identified himself as the robber. At one point, the caller asked her to go out in 

front of her house. When she did so, she saw the 1975 Monte Carlo moving slowly past 

her home. On March 16, the police observed a car of the same description in her 

neighborhood. Tracing the license plate, police discovered that the car was registered to 

Michael Lee Smith. 476 

The following day, the police asked the telephone company to install a pen register to 

trace the numbers called from Smith's home telephone. The company agreed, and that 

468 Katz v. United States, 389 U.S. 347,351 (1967) (citation omitted). 

"' !d. 470 Section 215 White Paper, supra note 223, at 19. 471 !d., citing Smith v. Maryland, 442 U.S. 735, 743-46 (1979). 472 Smith v. Maryland, 442 U.S. 735, 743-44 (1979). 473 Section 215 White paper, supra note 223, at 20, citing in support SEC v. Jerry T. O'Brien, Inc., 467 U.S. 

735,743 (1984); United States v. Miller, 425 U.S. 435,443 (1976). 474 Section 215 White Paper, supra note 223, at 20 ('The scope of the program does not alter the conclusion 

that the collection of telephony metadata under a Section 215 eourt order is consistent with the Fourth 

Amendment. Collection of telephony metadata in bulk from telecommunications service providers under the 

program does not involve searching the property of persons making telephone calls. And the volume of 

~~~ords does not convert that activity into a search.") 

!d., at 21. 476 Smith v. Maryland, 442 U.S. 735 (1979). 

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day Smith called Patricia McDonough's home. On the basis of this and other 

information, the police applied for and obtained a search warrant. Upon executing the 

warrant, police found a telephone book in Smith's home, with the comer turned down to 

Patricia McDonough's name and number. In a subsequent six-man lineup, McDonough 

identified Smith as the person who robbed her. 477 

Although the police did not obtain a warrant prior to placing the pen register, at a 

minimum, reasonable suspicion had been established that the target of the surveillance, 

Michael Lee Smith, had robbed, threatened, intimidated, and harassed Patricia 

McDonough. The police, accordingly, placed the pen register consistent with their 

reasonable suspicion that Michael Lee Smith was engaged in criminal wrongdoing. 

The telephony metadata program is an entirely different situation. The NSA is 

engaging in bulk collection absent any reasonable suspicion that the individuals, whose 

telephone information is being collected, are engaged in any wrongdoing. To the 

contrary, the Foreign Intelligence Surveillance Court acknowledges that almost all of the 

information thus obtained will bear no relationship whatsoever to criminal activity. The 

government, however, wants to place a pen register and trap and trace on all U.S. 

persons-essentially treating everyone in the United States as though they are Michael 

Lee Smith. 

In Smith v. Maryland, moreover, the police wanted only to record the numbers dialed 

from the suspect's telephone. Although it is now often forgotten, at the time the case was 

decided, telephone companies were treated as utilities, with local telephone calls billed by 

the minute. What was unique about the technology involved in the pen register was that 

it could both identifY and record the numbers dialed from a telephone-a function that 

the phone company itself did not have. 

In contrast, the bulk collection program now collects the numbers dialed, the 

numbers who call a particular number, trunk information, session times, and the like. 

And it has the ability to do that for not just one person, but for the entire country. 

Whereas the police in 1979 were concerned with whether Michael Lee Smith was calling 

a particular number, the NSA mctadata program now collects all numbers called-in the 

process obtaining significant amounts of information about individuals. Calls to a rape 

crisis line, an abortion clinic, a suicide hotline, or a political party headquarters reveal 

significantly more information than what was being sought in Smith. The sheer amount of 

information available is thus significantly different from what was at stake in the pen 

register placed on Michael Lee Smith's line. 

Further characteristics distinguish the case. In 1979, the telephone company 

consented to placing the pen register on the line. Today, however, under the FISC order, 

telephone service providers arc forced to comply with the government's request. Unlike 

the voluntary behavior that marked the case, the bulk collection program relies on 

coercive government power to obtain records on all telephone subscribers. And it is not 

for a limited time. In Smith v. Maryland, the police sought the information for an 

extremely limited period. The bulk metadata collection program has been operating for 

seven years now-and, the NSA argues-should be a permanent part of the government 

surveillance program. 

Perhaps the most important difference between the two situations lies in the realms of 

technology and social construction. The extent to which we rely on electronic 

communications to conduct our daily lives is of a fundamentally different scale and 

complexity than the situation that existed at the time the Court heard arguments in Smith. 

Resultantly, the extent of information that can be learned about not just individuals, but 

neighborhoods, school boards, political parties, girl scout troops-indeed, any social, 

477 Id. 

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political, or economic network, is light years ahead of what the Court contemplated in 

1979. The logic of the government's position has virtually no limit. Not only is 

telephony metadata more revealing than previously, but all forms of metadata are at 

stake. 

Americans have a contractual relationship with myriad corporate entities now, to 

whom they have entrusted parts of their lives, such as friendships, correspondence, 

buying patterns, and financial records. Creating a contractual relationship with Safcway, 

however, to gain access to reduced prices for food, is something different in kind than 

giving all information to the federal government. Americans reasonably expect that their 

movements, communications, and decisions will not be recorded and analyzed by the 

intelligence agencies. And a majority of the Supreme Court seems to agree. 

In 2012 the Court considered a case involving 28-day surveillance. The government 

had obtained a search warrant permitting it to place a Global-Positioning System (GPS) 

tracking device on a car registered to the wife of a suspected drug dealer. The day after 

the warrant expired, agents installed the device and followed the car's movements for 

nearly a month. Information thus obtained allowed the government to indict Antoine 

Jones and others on drug trafficking conspiracy charges.478 The Supreme Court held that 

attaching the GPS device to the car and tracing its movements amounted to a search 

within the meaning of the Fourth Amendment.479 

This case is important for determining the constitutionality of the telephony metadata 

program in two important ways. First, it recognized that Katz's reasonable expectation of 

privacy test did not supplant the rights in existence at the time the Fourth Amendment 

was forged. Justice Scalia, writing for the Court, explained: 

It is important to be clear about what occurred in this case: The Government 

physically occupied private property for the purpose of obtaining information. 

We have no doubt that such a physical intrusion would have been considered a 

"search" within the meaning of the Fourth Amendment when it was adopted.480 

Justice Scalia cited En tick v. Carrington, noting that the Court had previously described it 

as a "'monument of English freedom' 'undoubtedly familiar' to 'every American 

statesman' at the time the constitution was adopted, and considered to be 'the true and 

ultimate expression of constitutional law' with regard to search and seizure."481 For 

Justice Scalia, and for the Court, the reasonable expectation of privacy test was of no 

consequence: "At bottom, we must 'assur[e] preservation of that degree of privacy 

against government that existed when the Fourth Amendment was adopted."482 

Just as the Court eschewed the test in Katz v. United States as being inapposite for 

consideration of the rights that existed when the Fourth Amendment was adopted, it 

would be equally inapposite to dismiss the Fourth Amendment's rejection of general 

warrants. "[AJt a minimum," Justice Scalia wrote, the "l81

h century guarantee against 

unreasonable searches .... must provide ... the degree of protection it afforded when it 

was adopted. "483 

The concept of a general warrant and the Court's conception of the tort of trespass 

are historically connected. The reason that general warrants were rejected at the time of 

the Founding was because they provided a carte blanche to the government to trespass at 

will upon one's property and to search through ones papers and effects without any 

reasonable suspicion. 

478 United States v. Jones, 132 S. Ct. 945 (2012). 479 !d. at 949. 480 !d. 

"' Id. 482 !d., at 947. 4

" !d. at 953. 

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169 

The second point to draw out of Jones is that what can be considered a shadow 

majority appears to recognize that changed circumstances exist, so as to augment the 

need for new protections for privacy. At least five justices indicated unease with the 

intrusiveness of modem technology in light of changed times, offering in the process 

different aspects of a mosaic theory of privacy. 

Even though he adopted Katz as the relevant standard, Justice Samuel Alito, joined 

by Justice Ginsburg, Justice Breyer, and Justice Kagan, suggested that in most criminal 

investigations, long-term monitoring "impinges on expectations of privacy." New 

technologies mattered: 

Recent years have seen the emergence of many new devices that permit the 

monitoring of a person's movements. In some locales, closed-circuit television 

video monitoring is becoming ubiquitous. On toll roads, automatic toll collection 

systems create a precise record of the movements of motorists who choose to 

make use of their convenience. Many motorists purchase cars that are equipped 

with devices that permit a central station to ascertain the car's location at any 

time so that roadside assistance may be provided if needed and the car may be 

found if it is stolen. 484 

Unlike in the past, the daily business of living one's life creates a digital record with 

privacy implications. "Perhaps most significant," Justice Alito added, "cell phones and 

other wireless devices now permit wireless carriers to track and record the location of 

users-and as of June 2011, it has been reported, there were more than 322 million 

wireless devices in use in the United States."485 Before computers, practicality proved 

one of the greatest protectors of individual privacy. It was difficult and expensive to 

conduct long-term surveillance. But technology has changed the equation. The 

government now is more able to engage in long-term surveillance; but while relatively 

short-term monitoring of individuals' movements in public space might be consistent 

with the Fourth Amendment, "the use of longer term GPS monitoring in investigations of 

most offenses impinges on expectations ofprivacy."486 

Justice Sotomayor went one step further. She suggested that, in light of the level of 

intrusiveness represented by modem technology, "it may be necessary to reconsider the 

premise that an individual has no reasonable expectation of privacy in information 

voluntarily disclosed to third parties." 487 She pointed out: 

This approach is ill suited to the digital age, in which people reveal a great deal 

of information about themselves to third parties in the course of carrying out 

mundane tasks. People disclose the phone numbers !hat they dial or text to the 

cellular providers; the URLs that they visit and the e-mail addresses with which 

they correspond to their Internet service providers; and the books, groceries, and 

medications they purchase to online retailers. 488 

Justice Sotomayor added, "I would not assume that all information voluntarily disclosed 

to some member of the public for a limited purpose is, for that reason alone, disentitled to 

Fourth Amendment protection."489 

VIII. CONCLUDING REMARKS 

484 Id. at 963 (Alito, J., concurring). 

485 !d. 

""!d. at 964. 487 !d. at 957 (Sotomayor, J., concurring). 

"'Id. 

489 Id. 

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170 

The 1978 Foreign Intelligence Act sought to empower the NSA and others to take 

advantage of new technologies and to engage in necessary foreign intelligence gathering, 

while preventing the intelligence community from engaging in sweeping surveillance of 

U.S. citizens. Congress enacted a series of restrictions, requiring that the target of such 

surveillance be a foreign power, or an agent thereof, insisting that probable cause support 

such claims, and heightening the protections afforded to the domestic collection of U.S. 

citizens' information. FISA's expansion gradually brought physical searches, pen 

registers and trap and trace devices, as well as business records and tangible goods, 

within its remit. These new authorities retained much of the structure that defined the 

statute. 

The NSA' s bulk collection of metadata contradicts the general approach adopted 

by Congress in enacting FISA. The FISC orders lack the particularization required prior 

to the acquisition of information and the role FISC now plays departs from that 

envisioned by Congress. The bulk collection program, moreover, violates the statutory 

language in at least three ways: it does not comport with the requirement that the tangible 

goods sought "are relevant to an authorized investigation"; it violates the requirement that 

the information be otherwise obtainable via subpoena duces tecum; and it bypasses the 

statutory provisions governing pen registers and trap and trace devices. Compounding the 

illegality of the program are serious constitutional concerns. The FISC order governing 

the telephony metadata program amounts to a general warrant, which the Fourth 

Amendment precludes. Efforts by the government to save the program on grounds of 

third party doctrine are unpersuasive in light of the unique circumstances of Smith v. 

Maryland, new technologies, and changed circumstances. An end to the telephony 

metadata program and FISA reform are necessary to bring surveillance operations and 

emerging technologies within the bounds of the Constitution. 

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Written Testimony of Edward W. Felten 

Professor of Computer Science and Public Affairs, Princeton University 

United States Senate, Committee on the Judiciary 

Hearing on 

Continued Oversight of the Foreign Intelligence Surveillance Act 

October 2, 2013 

Chairman Leahy; Ranking Member Grassley, and members of the Committee, I thank 

you for the opportunity to testify about technical issues related to surveillance. 

My name is Edward W. Felten. I am a Professor of Computer Science and Public Affairs 

at Princeton University. I also serve as the founding Director of the Center for 

Information Technology Policy, an interdisciplinary research and teaching center at 

Princeton that focuses on public policy issues relating to computers and the Internet. My 

primary field is computer science, and my main research areas are computer security 

and privacy, and Internet technologies. 

Throughout my career, I have worked to help policymakers respond effectively to 

technological change. In 2011-12 I served as the first Chief Technologist at the Federal 

Trade Commission. I have testified several times at Senate and House hearings. I am a 

member of the National Academy of Engineering and the American Academy of Arts and 

Sciences. 

Today, I will provide an overview of the tools and methods that computing technology 

can bring to the broad collection and analysis of metadata. I am not an expert on the law 

and I offer no opinion on the legal status of any program. Nor do I presume to say how 

best to balance the legitimate goals of conducting foreign intelligence surveillance 

against the legitimate goals of protecting privacy and promoting civil liberties. I hope 

that my testimony will help you appreciate the power of metadata and control its use 

appropriately, consistent with the need for effective foreign intelligence. 

Metadata can now yield startling insights about individuals and groups, particularly 

when collected in large quantities across the population. It is no longer safe to assume 

that this "summary" or "non-content" information is less revealing or less sensitive than 

the content it describes. Just by using new technologies such as smart phones and social 

media, we leave rich and revealing trails of metadata as we move through daily life. Many 

details of our lives can be gleaned by examining those trails. Taken together, a group's 

metadata can reveal intricacies of social, political, and religious associations. Metadata is 

naturally organized in a way that lends itself to analysis, and a growing set of computing 

tools can turn these trails into penetrating insights. Given limited analytical resources, 

analyzing metadata is often a far more powerful analytical strategy than investigating 

content: It can yield far more insight with the same amount of effort. 
172 

Advances in technology have transformed the role and importance of metadata. When 

focused on intelligence targets, metadata collection can be a valuable tool. At the same 

time, unfocused collection of metadata on the American population gives government 

access to many of the same sensitive facts about the lives of ordinary Americans that 

have traditionally been protected by limits on content collection. Metadata might once 

have seemed much less informative than content, but this gap has narrowed dramatically 

and will continue to close. 

Today's hearing is a vital step in a process that must continue. Technical expertise is 

essential for effective oversight of these technologically complex programs, and I would 

respectfully urge you to consider how best to integrate technical expertise into the 

oversight system. The United States has the world's strongest and deepest community of 

technical experts. This community is eager to contribute constructively to the national 

discussion. 

The NSA Is Collecting Massive Amounts of Telephony Meta data 

On June 5, 2013, The Guardian disclosed an order issued by the Foreign Intelligence 

Surveillance Court ("FISC") pursuant to Section 215 of the Patriot Act (the "Verizon 

Order").' This order compelled Verizon to produce to the NSA on "an ongoing daily basis 

... all call detail records or 'telephony metadata' created by Verizon for communications 

(i) between the United States and abroad; or (ii) wholly within the United States, 

including local telephone calls." Director of National Intelligence (DNI) James R. 

Clapper subsequently acknowledged the authenticity of the Verizon Order. 2 Officials 

also acknowledged that the NSA's acquisition of call detail records extends to the 

country's three largest phone companies: Verizon, AT&T, and Sprint3. Because these 

companies provide at least one end of the vast majority of calls in this country, these 

statements suggest that the NSA is maintaining a record of the metadata associated with 

nearly every telephone call originating or terminating in the United States. 

This is a large volume of data. Assuming that there are approximately 3 billion calls 

made every day in the United States, and that each call record takes approximately so 

1 Secondary Order, In reApplication of the FBI for an Order Requiring the Production of 

Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc'n Servs., Inc. 

djbfa Verizon Bus. Servs., No. BR 13-80 at 2 (FISA Ct. Apr. 25, 2013), available at 

http:/ /bit.ly/11FY393· 2 James R. Clapper, DNI Statement on Recent Unauthorized Disclosures of Classified 

Information, Office of the Director of National Intelligence (June 6, 2013), 

http:// 1. usa.gov / 13jwuFc. 

3See Siobhan Gorman eta!., U.S. Collects Vast Data Trove, WALL ST. J., June 7, 2013, 

http:/ /on.wsj.com/uuDoue ("The arrangement with Verizon, AT&T and Sprint, the country's 

three largest phone companies means, that every time the majority of Americans makes a call, 

NSA gets a record of the location, the number called, the time of the call and the length of the 

conversation, according to people familiar with the matter. ... AT&T has 107.3 million wireless 

customers and 31.2 million landline customers. Verizon has 98.9 million wireless customers and 

22.2 million landline customers while Sprint has 55 million customers in total."). 

2 
173 

bytes to store, the mass call tracking program collects about 140 gigabytes of data every 

day, or about so terabytes of data each year. Assuming that a page of text takes two 

kilobytes of storage, the program collects the equivalent of about 70 million pages of 

information every day, or about 25 billion pages every year. 

The Verizon Order requires the production of "call detail records" or "telephony 

metadata." According to the order itself, that term encompasses, among other things, the 

originating and terminating telephone number and the time and duration of any call. 

Call detail records also typically include information about the location of the parties to 

the call.4 

Although this latter definition of "call detail information" includes data identifying the 

location where calls are made or received, I will not address mobile phone location 

information in this testimony. While I understand that senior intelligence officials have 

asserted that they have the legal authority under Section 215 to collect mobile phone 

location information, they have stated that the NSA is not collecting phone location 

information "under this program."s 

The information acquired from Verizon also includes "session identifying information"-

e.g., originating and terminating telephone number, International Mobile Subscriber 

Identity (IMSI) number, and International Mobile station Equipment Identity (IMEI) 

number. These are unique numbers that identify the user or device that is making or 

receiving a call. Although people who want to evade surveillance can make it difficult to 

connect these numbers to their individual identities, for the vast majority of ordinary 

Americans these numbers can be connected to the specific identity of a person. 

The information acquired from Verizon also includes the "trunk identifier" of telephone 

calls. This provides information about how a call was routed through the phone network, 

which naturally reveals information about the location of the parties. For example, even 

if the NSA never obtains cell site location information about a call,6, trunk identifier 

4 See 47 C.F.R. § 64.2003 (2012) (defining "call detail information" as "[a]ny information that 

pertains to the transmission of specific telephone calls, including, for outbound calls, the number 

called, and the time, location, or duration of any call and, for inbound calls, the number from 

which the call was placed and the time, location, or duration of any call"). 5 See Siobhan Gorman & Julian E. Barnes, Officials: NSA Doesn't Collect Cellphone-Location 

Records, WALL ST. J., June 16,2013, http://on.wsj.com/I3MnSsp; Perna Levy, NSA FISA 

Metadata Surveillance: Is The Government Using Cell Phones To Gather Location Data?, INT'L 

Bus. TIMES, Aug. 2, 2013, http:/ jbit.lyj18WKXOV. 6 Cell site location information ("CSLI'') reflects the cell tower and antenna sector a phone is 

connected to when communicating with a wireless carrier's network. Most carriers log and retain 

CSLI for the start and end of each call made or received by a phone, and some carriers log CSLI 

for text messages and data connections as well. Wireless carriers can also obtain CSLI by 

"pinging" a phone whenever it is turned on, even if it is not engaged in an active call. The 

precision of CSLI varies according to several factors, and "[f]or a typical user, over time, some of 

that data will inevitably reveallocational precision approaching that of GPS." The Electronic 

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information revealing that a domestic call was carried by a cable from Hawaii to the 

mainland United States will reveal that the caller was in the state of Hawaii at the time 

the call was placed. 

Although officials have stated that the orders issued under the telephony metadata 

program do not compel the production of customers' names, it would be easy for the 

NSA to correlate many telephone numbers with subscriber names using publicly 

available sources. I understand that federal agencies also have available a number of 

legal tools to compel service providers to produce their customer's information, 

including their names, without probably cause or judicial preclearance.? 

Metadata Is Easy to Analyze 

Telephony metadata is easy to aggregate and analyze because it is, by its nature, 

structured data. Telephone numbers are standardized, and are expressed in a 

predictable format: in the United States, a three digit area code, followed by a three digit 

central office exchange code, and then a four digit subscriber number. Likewise, the time 

and date information associated with the beginning and end of each call will be stored in 

a predictable, standardized format. 

By contrast, the contents of calls are unstructured. Some people speak English, others 

Spanish, French, Mandarin, or Arabic. Some speak using street slang or a pidgin dialect, 

which can be difficult for others to understand. Conversations lack a common structure: 

Some people get straight to the point, others engage in lengthy small talk. Speakers have 

different accents, and exhibit verbal stutters and disfluencies. Although automated 

transcription of speech has advanced, it is still a difficult and error-prone process. 

The structured nature of metadata makes it easy to analyze massive datasets using 

sophisticated data-mining and link-analysis programs. That analysis is greatly facilitated 

by technological advances over the past decades in computing, electronic data storage, 

and digital data mining. Those advances have radically increased our ability to collect, 

store, and analyze personal communications, including meta data. 

Further, the massive increases in electronic storage permit us to maintain, cheaply and 

efficiently, vast amounts of data. The ability to preserve data on this scale is, by itself, an 

unprecedented development-making possible the maintenance of a digital history that 

was not previously within the easy reach of any individual, corporation, or government. 

Communications Privacy Act (ECPA), Part 2: Geo/ocation Privacy and Surveillance: Hearing 

Before the Subcomm. on Crime, Terrorism, Homeland Sec. & Investigations of the H. Comm. On 

the Judiciary, 113th Cong. (2013) (statement of Matt Blaze, Associate Professor, University of 

Pennsylvania), http:/ /Lusa.gov/IawvgOa. 7 See 18 U.S.C. § 2709 (national security letter); 18 U.S.C. § 2703(c), (d) (court order for records 

concerning electronic communication service). 

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175 

This newfound data storage capacity has led to new ways of exploiting the digital record. 

Sophisticated computing tools permit the analysis oflarge datasets to identify embedded 

patterns and relationships, including personal details, habits, and behaviors. As a result, 

individual pieces of data that previously carried less potential to expose private 

information may now, in the aggregate, reveal sensitive details about our everyday 

lives-details that we had no intent or expectation of sharing. 

IBM's Analyst's Notebook and Pen-Link are two such computing tools. Both are widely 

used by law enforcement and intelligence agencies for this purpose.8 

IBM's Analyst's Notebook product is a multi-purpose intelligence analysis tool that 

includes specific telephony metadata analysis features, which are "routinely" used to 

analyze large amounts of telephony metadata.9 IBM even offers training courses entirely 

focused on using Analyst's Notebook to analyze telephone call records. 10 

Pen-Link is a tool that is purpose-built for processing and analyzing surveillance data. It 

is capable of importing subscriber Call Detail Record ("CDR") data from the proprietary 

formats used by the major telephone companies," it can import and export call data to 

several federal surveillance databases,'2 as well as interact with commercial providers of 

public records databases such as LexisNexis. Pen-Link can perform automated "call 

8 Public Safety & Law Enforcement Operations, International Business Machines (last visited 

Aug. 22, 2013), http://ibm.co/1avGitq ("IBM® i2@ solutions help law enforcers to turn huge 

volumes of crime data into actionable insights by delivering tools for tactical lead generation, 

intelligence analysis, crime analysis and predictive analysis."); see also Defense and National 

Security Operations, International Business Machines (last visited Aug. 22, 2013), 

http://ibm.co/18nateN ("IBM i2 solutions for military and national security organizations have 

been used across the world to process and analyze the vast quantities of information that they 

collect, to generate actionable intelligence and to share insights that help identify, predict and 

prevent hostile threats."); see also Pen-Link, Unique Features of Pen-Link vB at 16 (Apri117, 

2008), http://bit.ly/153ee9g ("Many U.S. Federal Law Enforcement and Intelligence agencies 

have acquired agency-wide site license contracts for the use of Pen-Link in their operations 

throughout the United States ... Pen-Link systems are also becoming more frequently used by U.S. 

intelligence efforts operating in several other countries."). 9 Case Studies: Edith Cowan University, IBM i2 Solutions Help University Researchers Catch a 

Group of Would-Be Hackers, International Business Machines (Mar. 27, 2013), 

http://ibm.co/13J2o36 ("Analyzing this volume of data is nothing new to many law enforcement 

users who routinely analyze tens of thousands of telephone records using IBM® i2@ Analyst's 

Notebook@."). 

1

° Course Description: Telephone Analysis Using i2 Analyst's Notebook, International Business 

Machines (last visited Aug. 22, 2013), http://ibm.co/1d5QIB8 ("This intermediate hands-on 3-

day workshop focuses on the techniques of utilizing i2 Analyst's Notebook to conduct telephone 

toll analysis ... Learn to import volumes of call detail records from various phone carriers, analyze 

those records and identify clusters and patterns in the data. Using both association and temporal 

charts, discover how to use different layouts and more advanced tools to analyze telephonic data 

quickly and effectively."). 11 See Pen-Link, Unique Features of Pen-Link vB at 4 (Apr. 17, 2008), http://bit.ly/153ee9g 

(describing the capability to import 170 different data formats, used by phone companies to 

provide call detail records). 12 Id. at4. 

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176 

pattern analysis," which "automatically identifies instances where particular sequences 

of calls occur, when they occur, how often they occur, and between which numbers and 

names.''~:; As the company notes in its own marketing materials, this feature "wonld help 

the analyst determine how many times Joe paged Steve, then Steve called Barbara, then 

Steve called .Toe back. "14 

~~, {d""" ~ 

(""'"""·~--"''~' 

~"""-~'""''""'''~ 

Figure 1: Screenslwt of IBM:~ Analyst's Note1Jook. 1

5 

The contents of calls are far more difficult to analyze in an automated fashion due to 

their unstructured nature. The NSA would first have to transcribe the calls and then 

determine which parts of the conversation are interesting and relevant. Assuming that a 

call is transcribed correctly, the NSA must still try to determine the meaning of the 

conversation: When a surveillance target is recorded saying "the package will be 

delivered next week," are they talking about an order they placed from an online retailer, 

a shipment of drugs being sent through the mail, or a terrorist attack? Automatically 

parsing and interpreting such information, even with today's most sophisticated 

computing tools, is exceptionally difficult. To do so in an automated way, transcribing 

and data-mining the contents of hundreds of millions of telephone calls per day is an 

even more difficult task. 

It is not surprising, then, that intelligence and law enforcement agencies often turn first 

to metadata. Examining metadata is generally more cost-effective than analyzing 

content. Of course, the NSA will likely still have analysts listen to every call made by the 

13 Id.at7. 

'·' Id. 15 Image taken from Data Analysis and Visualization for Effective Intelligence Analysis, 

International Business Machines (last visited Aug. 22, 2013), http:/ /ibm.coj16qT3hw. 

6 
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highest-value surveillance targets, but the resources available to the NSA do not permit it 

to do this for all of the calls of 300 million Americans. 

Americans Inevitably Create Metadata That Can Reveal Sensitive Details of 

Their Lives 

Over the last three decades, and especially with the widespread adoption of mobile 

phones in the past decade, our reliance on telecommunications has significantly 

increased. Mobile phones are today ubiquitous, and their use necessarily requires 

reliance on a service provider to transmit telephone calls, text messages, and other data. 

These communications inevitably produce telephony metadata, which is created 

whenever a person places a call. There is no practical way to prevent the creation of 

telephony meta data, or to erase it after the fact. The only reliable way to avoid creating 

such metadata is to avoid telephonic communication altogether. 

As a general matter, it is practically impossible for individuals to avoid leaving a 

metadata trail when engaging in real-time communications, such as telephone calls or 

Internet voice chats. 

After decades of research (much of it supported by the U.S. government), there now exist 

many tools that individuals and organizations can use to protect the confidentiality of 

their communications content. Smartphone applications are available that let individuals 

make encrypted telephone calls and send secure text messages.16 Freely available 

software can be used to encrypt email messages and instant messages sent between 

computers, which can frustrate surveillance efforts traditionally performed by 

intercepting communications as they are transmitted over the Internet. 

However, most of these secure communication technologies protect only the content of 

the conversation and do not protect the metadata. Government agents that intercept an 

encrypted email may not know what was said, but they will be able to learn the email 

address that sent the message and the address that received it as well as the size of the 

message and when it was sent. Likewise, Internet metadata can reveal the parties making 

an encrypted audio call and the time and duration of the call, even if the voice contents of 

the call are beyond the reach of a wiretap. 

Some security technologies are specifically designed to hide metadata trails, but those 

technologies do not work quickly enough to allow real-time communication. The general 

technique for hiding the origin and destination information for an Internet 

communication involves sending data through a series of intermediaries before it 

reaches the destination, thus making it more difficult for an entity such as a government 

agency to learn both the source and destination of the communication. (Such 

16 Somini Sengupta, Digital Tools to Curb Snooping, N.Y. TiMES, July 17, 2013, 

http:/ jnyti.msj12JKz1s (describing RedPhone and Silent Circle). 

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information is conventionally encrypted so that the intermediaries cannot capture it; and 

a series of intermediaries is used so that no one intermediary knows the identities of 

both endpoints.) 

The most popular and well-studied of these metadata hiding systems is The Tor Project, 

which was originally created by the U.S. Naval Research Lab, and has since received 

significant funding from the State Department. One important and widely acknowledged 

limitation of Tor is the noticeable delay introduced by using the tool. Web browsing 

conducted through Tor is much slower than through a direct connection to the site, as all 

data must be sent through a series of Tor relays, located in different parts of the world. 

These volunteer-run relays are oversubscribed-that is, the demands on the few relays 

from hundreds of thousands of Tor users are greater than the relays can supply, leading 

to slowdowns due to "traffic jams" at the relays. 

Browsing the web using Tor can be painfully slow, in some cases requiring several 

seconds or longer to load a page. Real-time audio and video communications require a 

connection with minimal delay, which Tor cannot deliver. Internet telephony and video 

conferencing services are simply unusable over metadata-protecting systems like Tor. 

As a result, although individuals can use security technologies to protect the contents of 

their communications, there are significant technical barriers that make it difficult, if not 

impossible, to hide communications metadata, particularly for real-time 

communications services such as Internet telephony and video conferencing. 

Telephony Metadata Reveals Content 

Telephony metadata can be extremely revealing, both at the level of individual calls and, 

especially, in the aggregate. 

Although this metadata might, on first impression, seem to be little more than 

"information concerning the numbers dialed,"17 analysis of telephony metadata often 

reveals information that could traditionally only be obtained by examining the contents 

of communications. That is, metadata is often a proxy for content. 

In the simplest example, certain telephone numbers are used for a single purpose, such 

that any contact reveals basic and often sensitive information about the caller. Examples 

include support hotlines for victims of domestic violence18 and rape.'9 Similarly, 

17 Administration White Paper, Bulk Collection of Telephony Metadata Under Section 215 of the 

USA Patriot Act 15 (Aug. 9, 2013), http:jjhuff.toj1ey9uas. 18 National Domestic Violence Hotline, The Hotline (last visited Aug. 22, 2013), 

http://www.thehotline.org. 

19 National Sexual Assault Hotline, RAINN: Rape, Abuse & Incest National Network (last 'Visited 

Aug. 22, 2013), http://www.rainn.org/get-help/national-sexual-assault-hotline. 

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numerous hotlines exist for people considering suicide,20 including specific services for 

first responders,21 veterans,22 and gay and lesbian teenagers. 2 3 Hotlines exist for sufferers 

of various forms of addiction, such as alcohol,24 drugs, and gambling. 2s 

Similarly, inspectors general at practically every federal agency-including the NSA26-

have hotlines through which misconduct, waste, and fraud can be reported, while 

numerous state tax agencies have dedicated hotlines for reporting tax fraud. 2 7 Hotlines 

have also been established to report hate crimes,28 arson, 2 9 illegal firearms3° and child 

abuse.3' In all these cases, the metadata alone conveys a great deal about the content of 

the call, even without any further information. 

The phone records indicating that someone called a sexual assault hotline or a tax fraud 

reporting hotline will of course not reveal the exact words that were spoken during those 

calls, but phone records indicating a 30-minute call to one of these numbers will still 

reveal information that virtually everyone would consider extremely private. 

In some cases, metadata is even more sensitive than the contents of a communication. 

For example, wireless telephone carriers permit subscribers to donate to certain charities 

by sending a text message from their mobile phones. These systems require the 

subscriber to send a specific text message to a special number, which will then cause the 

wireless carrier to add that donation to the subscriber's monthly telephone bill. For 

example, by sending the word HAITI to 90999, a wireless subscriber can donate $10 to 

the American Red Cross. 

20 District of Columbia/Washington D.C. Suicide & Crisis Hotlines, National Suicide Hotlines 

(last visited Aug. 22, 2013), http:/ /www.suicidehotlines.com/distcolum.html. 21 Get Help Now! Contact us to Get Confidential Help via Phone or Email, Safe Call Now (last 

visited Aug. 22, 2013), http:/ jsafecallnow.org. 22 About the Veterans Crisis Line, Veterans Crisis Line (last visited Aug. 22, 2013), 

http:/ jwww.veteranscrisisline.net/ About/ AboutVeteransCrisisLine.aspx. 23 We Provide Crisis Intervention and Suicide Prevention for LGBTQ Youth, The Trevor Project 

(last visited Aug. 22, 2013), thttp:/ jwww.thetrevorproject.org 24 Alcohol Addiction HelplineLAlcohol Hotline (last visited Aug. 22, 2013), 

http:/ jwww.alcoholhotline.com. 25 What is Problem Gambling?, National Council on Problem Gambling (last visited Aug. 22, 

013), http:/ /bit.lyjcyosu. 

Barton Gellman, NSA Statements to the Post, WASH. PosT, Aug. 15, 2013, 

http:/ jwapo.st/1SLliAB. 27 Report Tax Fraud- Tax Fraud Hotline, North Carolina Department of Revenue (last visited 

Aug. 22, 2013), http:/ /www.dor.state.nc.usjtaxesjreportfraud.html. 28 Report Hate Crimes, LAMBDA GLBT Community Services (last visited Aug. 22, 2013), 

http:/ jwww.lambda.orgjhatecr2.htm. 29 ATF Hotlines -Arson Hotline, Bureau of Alcohol, Tobacco, Firearms and Explosives (last 

visited Aug. 22, 2013), http:/ /www.atf.gov/contact/hotlinesjindex.html. 30 ATF Hot lines- Report Illegal Firearms Activity, Bureau of Alcohol, Tobacco, Firearms and 

Explosives (last visited Aug. 22, 2013), http:/ jwww.atf.govjcontactjhotlines/index.html. 31 Childhelp National Child Abuse Hotline, Childhelp (last visited Aug. 22, 2013), 

http:/ /www.childhelp.org/pages/hotline-home. 

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Such text message donation services have proven to be extremely popular. Today, 

wireless subscribers can use text messages to donate to churches,32 to support breast 

cancer research,33 and to support organizations such as Planned Parenthood.34 Similarly, 

after a policy change in 2012 by the Federal Election Commission, political candidates 

such as Barack Obama and Mitt Romney were able to raise money directly via text 

message.Js 

In all these cases, the most significant information-the recipient of the donation-is 

captured in the metadata, while the content of the message itself is less important. The 

metadata alone reveals the fact that the sender was donating money to their church, to 

Planned Parenthood, or to a particular political campaign. 

Metadata can expose an extraordinary amount about our habits and activities. Calling 

patterns can reveal when we are awake and asleep; our religion, if a person regularly 

makes no calls on the Sabbath, or makes a large number of calls on Christmas Day; our 

work habits and our social attitudes; the number of friends we have; and even our civil 

and political affiliations. 

Aggregated Telephony Metadata Reveals Our Relationships 

When call metadata is aggregated and mined for information across time, it can be an 

even richer repository of personal and associational details. 

Metadata can identify our closest relationships. Two people in an intimate relationship 

may regularly call each other, often late in the evening. If those calls become less 

frequent or end altogether, metadata will tell us that the relationship has likely ended as 

well-and it will tell us when a new relationship gets underway. More generally, someone 

you speak to once a year is less likely to be a close friend than someone you talk to once a 

week. Analysis of metadata on this scale can reveal the network of individuals with 

whom we communicate-commonly called a social graph. 

Metadata also reveals the structure and activities of organizations. By building a social 

graph that maps all of an organization's telephone calls over time, one could obtain a set 

of contacts that includes a substantial portion of the organization's membership, donors, 

political supporters, and so on. Analysis of the metadata belonging to these individual 

callers, by moving one "hop" further out, could help to classify each one, eventually 

yielding a detailed breakdown of the organization's associational relationships. 

32 Several Ways to Give, The Simple Church (2013), http:/ jbit.ly/1508Mgw; Other Ways to Give, 

North Point Church (last visited Aug. 22, 2013), http:/ jbit.ly/16S3IkO. 33 Donate by Text, Susan G. Komen for the Cure (last visited Aug. 22, 2013), 

http:/ jsgk.mn/19AjGP7. 34 Help Support a New Future for Illinois Women and Families, Planned Parenthood of Illinois 

(last visited Aug. 22, 2013), http:/ /bit.ly/1bXI2TX. 35 Dan Eggen, Text to 'GNE' to Obama: President's Campaign Launches Cellphone Donation 

Drive, WASH. PosT, Aug. 23,2012, http:/ /bit.ly/16ibjCZ. 

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Even our relative power and social status can be determined by calling patterns. As The 

Economist observed in 2010, "People at the top of the office or social pecking order often 

receive quick callbacks, do not worry about calling other people late at night and tend to 

get more calls at times when social events are most often organized (sic), such as Friday 

afternoons."36 

At times, by placing multiple calls in context, metadata analysis can even reveal patterns 

and sensitive information that would not be discoverable by intercepting the content of 

an individual communication. 

For example, although metadata revealing a single telephone call to a bookie may 

suggest that the caller is placing a bet, analysis of meta data over time could reveal that 

someone has a gambling problem, particularly if the call records also reveal a series of 

calls to payday loan services. 

With a database of telephony metadata reaching back five years, many of these kinds of 

patterns will emerge once the collected phone records are subjected to even the most 

basic analytic techniques. 

In short, aggregated telephony metadata allows the NSA to construct social graphs and 

to study their evolution and communications patterns over days, weeks, months, or even 

years. Metadata analysis can reveal the rise and fall of intimate relationships, the 

diagnosis of a life-threatening disease, the telltale signs of a corporate merger or 

acquisition, or the social dynamics of a group of associates. 

Data-Mining Across Many Individuals Is More Revealing 

Advances in the area of "Big Data" over the past few decades have enabled researchers to 

observe even deeper patterns by mining large pools of metadata that span many 

telephone subscribers. 

Researchers have studied databases of call records to analyze the communications 

reciprocity in relationships,37 the differences in calling patterns between mobile and 

landline subscribers,38 and the social affinity and social groups of callers.39 

36 Mining Social Networks: Untangling the Social Web, ECONOMIST, Sep. 2, 2010, 

http:/ jecon.stjgiH1P7. 37 La uri Kovanen, J ari Saramaki & Kimma Kaski, Reciprocity of Mobile Phone Calls, Dynamics of 

Socio-Economic Systems (Feb. 3, 2010), http:/ jarxiv.org/pdf/1002.0763.pdf. 38 Heath Hohwald, Enrique Frias-Martinez & Nuria Oliver, User Modeling for 

Telecommunication Applications: Experiences and Practical Implications 8, (Data Mining and 

User Modeling Group, Telefonica Research, 2013), http:/ /bit.lyj1d7WkUU ("Interestingly, 

Monday is the day with most calls for landline users, while Friday is the day with most calls for 

mobile users ... Mobile users spend less time on the phone than landline users."). 

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Researchers have discovered that individuals have unique calling patterns, regardless of 

which telephone they are using,4° they have figured out how to predict the kind of device 

that is making the calls (a telephone or a fax machine),41 developed algorithms capable of 

predicting whether the phone line is used by a business or for personal use,42 identified 

callers by social group (workers, commuters, and students) based on their calling 

patterns,43 and even estimated the personality traits of individual subscribers. 44 

The work of these researchers suggests that the power of metadata analysis and its 

potential impact on the privacy of individuals increases with the scale of the data 

collected and analyzed. Just as multiple calls by the same person reveal more than a 

single call, so too does a database containing calling data about millions of people reveal 

more information about the individuals contained within it than a database with calling 

data about just one person. 

The privacy impact of collecting all communications metadata about a single person for 

long periods of time is qualitatively different than doing so over a period of a few days. 

Similarly, the privacy impact of assembling the call records of every American is vastly 

greater than the impact of collecting data about a single person or even groups of people. 

Mass collection not only allows the NSA to learn information about more people, but it 

also gives the NSA the ability to learn new, previously private facts about innocent 

Americans that it could not have learned simply by collecting the information about a 

few, specific individuals. 

Technical Expertise Bolsters Oversight and Public Understanding 

Some of the frustration voiced by the Foreign Intelligence Surveillance Court in its 

declassified opinions seems to stem from the Court's discovery that the NSA had not 

disclosed significant technical information in earlier proceedings. One need not 

39 Sara Motahari, Ole J. Mengshoel, Phyllis Reuther, Sandeep Appala, Luca Zoia & Jay Shah, The 

Impact of Social Affinity on Phone Calling Patterns: Categorizing Social Ties from Call Data 

Records, The 6th SNA-KDD Workshop (Aug. 12, 2012), http://b.gatech.eduj1d6i4RY. 4

° Corrina Cortes, Daryl Pregibon & Chris Volinsky, Communities of Interest, AT&T Shannon 

Research Labs, http://www.research.att.comj-volinsky jpapers/portugal.ps. 41 Haim Kaplan, Maria Strauss & Mario Szegedy, Just the Fax- Differentiating Voice and Fax 

Phone Lines Using Call Billing Data, AT&T Labs, http://bit.ly/1gAa8Ua. 42 Corinna Cortes & Daryl Pregibon, Giga-Mining, AT&T Labs-Research, http://bit.ly/153PMCI. 43 Richard A. Becker, Ramon Caceres, Karrie Hanson, Ji Meng Loh, Simon Urbanek, Alexander 

Varshavsky & Chris Volinsky, Clustering Anonymized Mobile Call Detail Records to Find Usage 

Groups, AT&T Labs-Research, http://soc.att.com/16jmKdz. 44 Rodrigo de Oliveira, Alexandros Karatzoglou, Pedro Concejero, Ana Armenta & Nuria Oliver, 

Towards a Psychographic User Mode/from Mobile Phone Usage, CHI 2011 Work-in-Progress 

(May 7-12, 2011), http://bit.ly/1f51mOy; see also Yves-Alexandre de Monljoye, Jordi Quoidbach, 

Florent Robie & Alex (Sandy) Pentland, Predicting People Personality Using Novel Mobile 

Phone-Based Metrics. Social Computing, Behavioral-Cultural Modeling and Prediction (2013), 

http://bit.ly/1867VWU. 

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postulate bad faith on the NSA's part to explain how this could have happened. 

Technologists within the NSA surely knew how their program operated, but this 

knowledge had to pass through intermediaries, some of them less attuned to the 

significance of certain technical details, before reaching the Court. A good faith effort to 

simplify the technical explanation for the Court's benefit could have led to the omission 

of information that the Court later found highly relevant. And the Court, without access 

to technical advice, was not able to ask the sort of probing technical question that might 

have elicited the missing information. 

In order to ensure strong oversight of these complex programs, the overseers must have 

independent access to robust technical expertise. Fortunately, the United States has the 

world's strongest pool of experts in these areas. I look forward to your questions today 

and, more broadly, to continued constructive engagement between oversight officials 

and technical experts. 

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Statement for the Record 

United States Senate 

Committee on the Judiciary 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Carrie F. Cordero 

Director of National Security Studies 

& Adjunct Professor of Law 

Georgetown University Law Center 
185 

Introduction 

Mr. Chainnan, Ranking Member Grassiey, members of the Committee, thank you for this 

opportunity to share my views on the important issue of continued oversight of intelligence 

activities conducted under the Foreign Intelligence Surveillance Act (FISA). I am honored to be 

here with you today, and so pleased to share the panel today with my colleague at Georgetown 

Law, Professor Laura Donohue, as well as with Professor Edward Felten of Princeton. 

I am currently the Director of National Security Studies and an Adjunct Professor of Law 

at Georgetown University Law Center, where, among other things, I teach a course on 

Intelligence Refonn. The views presented in this statement and at this hearing are my own, and 

should not be construed to reflect the views of any employer, current or former. This statement 

was reviewed by the government for classification purposes. 

Prior to joining Georgetown Law in November 20 II, I spent my career as a practicing 

national security lawyer in the Executive Branch. In 2009, I served as Counsel to the Assistant 

Attorney General for National Security at the United States Department of Justice, where I cochaired an interagency group created by the Director of National Intelligence (DNI) to improve 

FISA processes. From 2007-2009, I served in a joint duty capacity as a Senior Associate General 

Counsel at the Office of the Director of National Intelligence, where I worked behind the scenes 

on matters relating to the legislative efforts that resulted in the FISA Amendments Act of 2008. 

Once that law was passed, I was involved in many aspects of implementing the FISA 

Amendments Act, as well as standing up the internal executive branch interagency oversight 

structure. Prior to my tour at ODNI, I served for several years as an attorney in the office now 

called the Office of Intelligence, which is part of the National Security Division at the 

Department of Justice, and appeared frequently before the Foreign Intelligence Surveillance 

Court (FISC). I handled both counterterrorism and counterintelligence national security 

investigations. Later, I became involved in policy matters, including contributing to the 

development of the Attorney General's Guidelines for FBI Domestic Operations and updated 

FISA minimization procedures. I also did a short stint as a Special Assistant United States 

Attorney in the Northern District of Texas. Early in my career, I spent considerable time 

preparing infonnation that was reported to both the Intelligence and Judiciary Committees of 

Congress as part ofthe annual public reports on FISA as well as the comprehensive semi-annual 

reports on FJSA. In short, I am one of a very small handful of attorneys currently outside of 

government who has direct experience with the operational, legislative, policy, and oversight 

aspects of FISA, as it was practiced from 2000-20 I 0. More recently, I have had the added benefit 

of having spent the past three years outside of government to reflect, and to engage with the 

academic community, and to some extent the public, regarding some of the issues this 

Committee is considering today. 

In addition, there is another aspect of my experience that may not be readily apparent, but 

that significantly impacts my views on FISA refonn: I started working in the national security 

component of the Justice Department in January 2000. Later that year, I supported investigative 

efforts after the bombing of the USS Cole. On the morning of September II, 200 I, I was 

dispatched to the FBI's Strategic Infonnation Operations Center, or SIOC, to help stand up our 

office's base there for the days and months to come. I remember the moment that morning when 

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186 

we thought it was possible that there could be as many as fifty to one hundred thousand people in 

the Twin Towers. I remember the announcement in SIOC that former FBI New York Special 

Agent John O'Neill had perished in the attack. And I remember the minutes when we were not 

sure whether there was an additional plane over Washington, D.C., only to learn later that it had 

been brought down in a field in Pennsylvania. I would also be remiss in recounting my memories 

from that morning if I did not mention perhaps the finest example of leadership I had ever seen, 

then, or, since: that of former FBI Director Mueller walking the floor of SIOC, just over a week 

into the job, alongside the rest of us: visible, present, reassuring. 

But I remember other things, too, from that morning, and the hours and days that 

followed. I recall senior leaders of the Department of Justice racing to obtain the signatures of 

the Attorney General and the FBI Director on emergency FISA applications because, at that 

time, the law only provided 24 hours from the time of the Attorney General's oral authorization 

to the time the application had to be presented to a judge. I also remember being responsible for 

obtaining pages and pages of secure faxes, which we taped up onto the wall of our small, overcrowded office in SIOC. The faxes contained the signatures of federal prosecutors and analysts 

who were on the criminal side of the so-called "wall" that had been erected between law 

enforcement and intelligence investigators as a result of cautious interpretations of FISA that had 

developed, and then cemented, over time. In accordance with the FISC's orders, we had to obtain 

their signatures before passing them intelligence information that would assist the FBI's 

investigation of the attacks. We were tripping over process, but dutifully following court orders, 

even then. 

As a result, I had an up-front view regarding how the USA Patriot Act of2001, the 

Intelligence Reform and Terrorism Prevention Act of 2004, and later the FISA Amendments Act 

of2008, all vastly improved the Intelligence Community's ability to protect the nation from 

another attack on the scale of September II th. 

Which brings me to where we are today. From my perspective, the challenge for 

members of this Committee is to identify whether there are actual problems with either the law 

or process, and then craft remedies that address those specific issues. I am here to urge caution in 

implementing "quick fixes" that may sound appealing based on public or media-driven pressure, 

but that could have lasting consequences at a practical level that could negatively impact 

Intelligence Community operations and the nation's security for years to come. 

On that point, it is worth noting that the FISA process, for approximately the preceding 

fifteen years, was subject to the exact opposite criticism that it seems to be today: the 

Department of Justice was accused of being too reticent, too cautious, too unwilling to be 

aggressive under the law in order to protect the national security. This Committee is very 

familiar with this history. To provide just a few examples: in May 2000, the Report of the 

Attorney General's Review Team on the Handling of the Los Alamos National Laboratory 

Investigation was issued. 1 That report concerned the handling of the Wen Ho Lee case, a 

counterintelligence investigation, and included a critical analysis of the interaction between, and 

1 Final Report, Attorney General's Review Team on the Handling of the Los Alamos National Laboratory 

Investigation (AGRT Report, also known as the Bellows report). (available 

at:/ /www.j ustice.gov /agj read ingroom/bellows. htm ). 

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the legal judgment of, the FBI and the Department of Justice concerning their interpretations of 

FISA standards, such as probable cause, in the late 1990s? In a separate review ofthe FISA 

process, this Committee issued a report in February 2003 on FISA Implementation Failures. That 

report focused primarily on deficiencies in FBI operations, but focused in significant part on 

problems that prevented the FBI from "aggressively pursuing FISA applications ... " 3 

A third example arose five years later. In an exchange of letters in October 2008, New 

York City Police Commissioner Raymond Kelly criticized the Department of Justice under 

Attorney General Michael Mukasey's tenure of being unwilling to present close or borderline 

cases to the FISC for consideration.4 Attorney General Mukasey strongly rejected the NYPD's 

claims and defended the Department's practice before the Court, stating in part, "[o]ur successful 

advocacy before the Court depends on the accuracy of our factual representations and the 

reliability of our assessments of those facts .... "5 Although today's criticisms ofF! SA operations 

have now shifted from targeting one agency (FBI) to another (NSA), for those, like me, who 

worked in national security operational law components during these years, it is an ironic twist to 

hear today's criticisms that the Department of Justice attorneys in this process may not be 

adequately representing both the national security as well as civil liberties interests of Americans 

in their presentations made to the Court; that we need more lawyers scrutinizing already wellscrubbed applications; and that the government should be putting forth more cautious 

interpretations of the law. 

So let's turn to what may or may not need fixing in FISA as it currently stands. Based on 

the public and legislative debate since the unauthorized disclosures by Edward Snowden in the 

Guardian and Washington Post beginning earlier this summer, I have observed three main 

critiques. These include: (i) that collection under section 702 of FISA and/or Section 215 of the 

USA Patriot Act are illegal; (ii) that there is a crisis of public confidence in NSA, the Intelligence 

Community, and activities conducted under FISA, and that this confidence could be restored by 

opening FISA practice to some form of adversarial process; and (iii) that FISA activities and 

legal rulings should be more transparent. Let me take each ofthose three critiques and some of 

the proposed reforms one-by-one. 

2 See, eg. Chapter 11, AGRT Report. 3 Interim Report on FBI Oversight in the 101"' Congress by the Senate Judiciary Committee: FISA Implementation 

Failures, February 2003 (available at www.fas.org/irp/congress/2003_rpt/fisa.html). The report criticized, in 

particular, FBI and DOJ's "too high" standard to establish probable cause, among other statutory requirements. 

'Letter from NYPD Police Commissioner Raymond W. Kelly to Attorney General Michael Mukasey, October 27, 

2008 (available at http://online.wsj.com/public/resources/documents/Mukaseyl11908.pdf). 5 Letter from Attorney General Michael Mukasey to NYPD Police Commissioner Raymond W. Kelly, October 31, 

2008 (available at http://online.wsj.com/public/resources/documents/WSJ_200811202Kelly.pdf).ln response to 

the NYPD's request that the Department lower the legal standard of submitting matters to the Court, the Attorney 

General stood firm, stating: 

"We are acutely aware of the stakes1 and, as a result. already try to be as aggressive in our approach as 

we can within the bounds of reason and the law. If we were to lower the standard, the risk would not be 

limited, as you suggest, to a few more rejected applications. Rather, as should be apparent ... the result 

would be counterproductive and would impair our ability to seek FISA coverage on worthy targets around 

the country. This I cannot, and will not, do." 

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Proposals to Restrict Foreign Intelligence Collection Under FlSA 

From my perspective, the arguments that these programs- and I am referring to both the 

section 7026 collection and the section 2157 collection- are illegal are mostly arguments about 

what the law should be, not what the law is. I note that the analysis under each of these sections 

is a different one, and, I would submit that the government's interpretation of section 215 is a 

more forward-leaning interpretation of the law than is its implementation of section 702. But 

generally, the arguments that either or both ofthese programs may be unlawful focus on the 

changes to technology, the differences in how our information is retained and how we 

communicate today versus decades ago, and on the Fourth Amendment concept concerning what 

constitutes a reasonable expectation of privacy. 

Section 702 collection is targeted against non-U.S. persons reasonably believed to be 

outside the United States. These are not individuals with Constitutional protections, and the 

collection against them is conducted in accordance with the statutory framework passed by 

Congress in the FlSA Amendments Act of2008. The FISA Amendments Act enhanced 

protections for U.S. persons worldwide by requiring that an individual probable cause-based 

order be obtained from the FISC for electronic surveillance or physical search no matter where in 

the world that U.S. person is located. The minimization procedures governing 702 collection 

have now been declassified, and demonstrate the detailed procedures with which the NSA 

handles U.S. person information. The 702 framework was debated extensively and publicly, and 

members ofthis Committee have been kept informed of its implementation in accordance with 

the reporting provisions of FISA. 

With respect to the metadata collection under section 215, it is a fair characterization that 

this program is large in scale. And reasonable minds can and do disagree about whether its 

interpretations of relevance under the statute, or reasonableness under the Fourth Amendment, 

are overly broad. But I would submit that the Government's arguments in this case are consistent 

with existing precedent, no matter what direction the courts may go in the future. Current 

Supreme Court precedent still holds that there is no expectation of privacy in our telephone 

metadata, that is, the numbers we dial or the numbers that dial us. A warrant is not required to 

obtain this information.8 Likewise, Supreme Court precedent also still holds that we do not have 

a reasonable expectation of privacy in records voluntarily turned over to a third party. 9 The legal 

justification, both statutory and constitutional, is outlined in the Administration's White Paper 

dated August 9, 2013. 10 

In addition, the recently declassified opinion and order by FISC Judge Claire Eagan dated 

August 29, 2013, approving continuation ofthe business records metadata program, offers a 

straightforward analysis of the law. Judge Eagan wrote: 

5 Section 702 of FISA was added to FISA by the FISA Amendments Act of 2008. 7 Section 215 refers to Section 215 of the USA Patriot Act, which can be found in section 501 of FISA. 8 Smith v. Maryland, 442 U.S. 735 (1979). 9 United States v. Miller, 425 U.S. 435 (1976). 10 Administration White Paper on Bulk Collection of Telephony Metadata Under Section 215 of the USA Patriot Act, 

August 9, 2013 (available at http://www.scribd.com/doc/159211491/0bama-administration-white-paper-on·NSA· 

surveillance-oversight) 

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In conducting its review ofthe government's application, the Court considered whether 

the Fourth Amendment to the U.S. Constitution imposed any impediment to the 

government's proposed collection. Having found none in accord with U.S. Supreme 

Court precedent, the Court turned to Section 215 to determine if the proposed collection 

was lawful and that Orders requested from this Court should issue. The Court found that 

under the terms of Section 215 and under operation of the canons of statutory 

construction such Orders were lawful and required, and the requested Orders were 

therefore issued. 11 

I do not mean to suggest that, over the course of the next several years or longer, that 

courts, including the Supreme Court, may come to different conclusions about expectation of 

privacy that may impact intelligence collection under FISA. They very well may. But I do 

suggest that the current collection activities, based on the FISC opinions and accompanying 

materials that have been declassified by the government, are consistent with current precedent 

and existing interpretations ofthe laws. 

Moreover, with respect to 215 in particular and intelligence programs generally, I believe 

that they should be regularly reviewed and evaluated to determine whether they continue to be 

necessary and valuable. It is wholly appropriate to end a collection program that has outlived its 

usefulness, or perhaps is no longer necessary based on new technologies or methods of collecting 

intelligence that may be more efficient or productive. But, based on what senior leaders of the 

Intelligence Community are advising today, the 215 program remains a valuable part of the 

protective infrastructure that was implemented after September II'h. Therefore, in my view, it 

would be premature for Congress to end it altogether, abruptly through legislation. 

Proposals Regarding a FISA Special Advocate and Efforts to Restore Public Confidence 

A second critique of FISA is that it is a one-sided enterprise that only permits the 

government to argue its case to the FISC. That, of course, was by design in the original I 978 

law, both in alignment with the manner in which federal criminal electronic surveillance 

applications and search warrants are presented to judges for review, as well as in order to protect 

the classified information, sources and methods that are involved in conducting national security 

electronic surveillance or search activities. 

Two themes emerge in proposals to add a special advocate, or public interest advocate, to 

the FISA process. One view, suggested separately by two different two former FISC judges, is 

that the Court would benefit from an additional view, particularly in cases involving technical 

complexity and/or novelle gal issues. 12 A second view is that a special advocate would go a long 

11 Amended Memorandum Opinion, In ReApplication of the Federal Bureau of Investigation for an Order Requiring 

the Production of Tangible Things From [Redacted], BR 13-109, dated August 29, 2013, at p.3 {available at 

http:/ /www.uscourts.gov/uscourts/courts/fisc/br13-09-primary-order.pdf). 12 James G. Carr, A Better Secret Court, N.Y. Times, July 22, 2013 {available at 

http:/ /www.nytimes.com/2013/07 /23/opinion/a-better-secret-court.html). Former FISC Judge James Robertson 

similarly endorsed the idea of an adversary in public remarks. Charlie Savage, Nation Will Gain by Discussing 

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way in restoring public confidence in the FISA process. I have concerns about both proposals, 

both as a matter of principle as well as a practical matter. 

To begin, it would truly be a sea change to start litigating foreign intelligence collection 

before it takes place. There are already lawyers in the government who view it as their job to 

work in the public interest. In particular, the lawyers in the National Security Division in the 

Department of Justice work in the best tradition of ex parte in camera practice, where they 

present both supportive and derogatory information to the Court, when presenting a matter that 

raises factual or other issues. There are also legal advisors who work for the court who are an 

additional layer of independent review. And then there are the judges themselves, who are 

independent Article Ill federal district court judges. 13 

This is one area where the proposals put forth in Congress may not quite match the 

desired objective. In this case, if what the Court seeks- and it would be helpful to hear from the 

current Court on this issue- is simply an additional view beyond that which is presented by the 

Justice Department on behalf of the Intelligence Community, then I would submit that 

empowering the existing Civil Liberties Protection Officer (CLP0) 14 to present his views 

directly to the FISC would serve that purpose. The CLPO is a statutory-based position created by 

the Intelligence Reform and Terrorism Prevention Act, which amended the National Security Act 

of 1947. While this proposal would not provide the optic some may desire to add an outside 

government component, it certainly would address the substantive concern that the Court could 

benefit from an additional view when considering particularly complex issues that impact 

privacy and civil liberties. And it would do so without adding substantial layers of additional 

bureaucracy. 

On the public confidence point, I would suggest that an outside advocate would not carry 

the weight that is hoped it might provide with the public in the longer term. If done in a manner 

protective of classified information, the advocate would necessarily work in secret, alongside the 

Executive Branch. On that count, with the passage of time, outside observers will just see the 

advocate as another participant in a secret process. As a practical matter, an outside advocate 

would require a tremendous amount of start-up time, effort and money in order to perform 

effectively. By start-up time and effort, what I am referring to is, in significant part, the 

knowledge and expertise that government participants in the FISA process maintain on an 

ongoing basis. For example, the recently declassified report of the 702 joint interagency 

oversight team reveals how frequently the interagency participants meet, discuss and are briefed 

Surveillance, Expert Tells Privacy Board, N.Y. Times, July 9, 2013 (http:/ /www.nytimes.com/2013/07 /10/us/nationwill-gain-by-discussing-surveillance-expert-tells-privacy-board.html?_r=O). 

13 Judge Walton, Presiding Judge of the FISC, provided a detailed accounting of the interaction between the 

government and the Court, and the Court's consideration of matters before it, in a letter to Chairman Leahy on July 

29, 2013 (available at http:/ /www.uscourts.gov/uscourts/courts/fisc/honorable-patrick-leahy.pdf). 14 The CLPO reports directly to the Director of National Intelligence and, by law, is responsible for ensuring "that 

the protection of civil liberties and privacy is appropriately incorporated into the policies and procedures 

developed for and implemented by the Office of the Director of National Intelligence and the elements of the 

intelligence community within the National Intelligence Program," among other duties. Section 103D of the 

National Security Act of 1947, as amended (50 U.S.C. § 403-3d]. 

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on ongoing implementation matters. 15 It would be very difficult for an outsider to enter a 

proceeding on a complex issue, and meaningfully participate, without this substantial 

background and expertise. It would take time for the outside advocate to become sufficiently 

knowledgeable for the proceedings to begin. Accordingly, the start-up efforts likely would not 

provide an environment for the advocate to work expeditiously when important national security 

collection objectives may be at stake. 

It is also useful to think about just what would the advocate's role be with respect to 

representing the public interest? Thinking back to the example of the wall that was corrected by 

the change to FISA's purpose standard by the USA Patriot Act in 2001 and the subsequent 

decision by the Foreign Intelligence Surveillance Court of Review in 2002, 16 the perpetuation of 

the wall was probably the most significant incorrect legal interpretation regarding FISA ever 

made by the Department of Justice and the FISC. According to the Foreign Intelligence 

Surveillance Court of Review in 2002, the conventional interpretation of the purpose 

requirement turned out to be a false premise. 17 Would an outside special advocate, had it existed 

back then, have argued for a lessening of restrictions that had been imposed by the Justice 

Department and later the FISC? In hindsight, that probably would have been in the public 

interest. Current conceptions of the public interest advocate seem only to focus on the public 

interest in terms of protecting the public's privacy and civil liberties. But acting in the public 

interest can sometimes mean making fulsome or even aggressive arguments under the law in 

order to protect the public from terrorist attacks and other threats to the national security. 

So what would enhance public confidence? Perhaps the most frustrating part of the 

reaction to the leaks from my perspective has been the nearly complete lack of confidence in or 

comfort by the existing oversight mechanisms, particularly with respect to 702 collection. This 

oversight structure includes oversight internally at NSA, through its Office of the Director of 

Compliance, General Counsel's office, and Inspector General's office; by the Department of 

Justice and the Office of the Director ofNational Intelligence; by the FISC; and by Congress. 

The oversight is extensive, and exhaustive. The results of the oversight reviews are reported to 

the Intelligence and Judiciary Committees. The recently declassified report issued in August 

2013 18 provides insight into the granularity of how this oversight process takes place, as well as 

into the nature of the compliance incidents themselves. Assuming that we intend to keep the 

basic framework of internal executive branch oversight and Congressional oversight through the 

committee structure, 19 then an area that requires focus is achieving a place where the 

15 Semiannual Assessment of Compliance With Procedures and Guidelines Issued Pursuant to Section 702 of the 

Foreign Intelligence Surveillance Act, Submitted by the Attorney General and the Director of National Intelligence, 

covering the period June 1, 2012-November 30, 2012, August 2013 (available at 

~ttp://www.scribd.com/doc/159211491/0bama-administration-white-paper-on-NSA-surveillance-oversight). 

In ReSealed Case, 310 F.3d 717,743 (For.lntei.Surv.Rev. 2002). 17 /d. at 743. 18 Semiannual Assessment of Compliance With Procedures and Guidelines Issued Pursuant to Section 702 of the 

Foreign Intelligence Surveillance Act, Submitted by the Attorney General and the Director of Notional Intelligence, 

covering the period June 1, 2012-November 30, 2012, August 2013 (available at 

http://www.scribd.com/doc/159211491/0bama-administration-white-paper-on-NSA-surveillance-oversight). 

19 Prepared statement of Benjamin Wittes before the Senate Select Committee on Intelligence, "legislative 

Changes to the Foreign Intelligence Surveillance Court," September 26, 2013 (available at 

8 
192 

Congressional oversight committees can both gain, and then communicate to the public, their 

satisfaction with the oversight process and the underlying activities themselves. Here are a few 

suggestions for what might be steps in the right direction: 

First, Congress can ensure that the offices conducting oversight, including the Office of 

the Director of Compliance at NSA, the Oversight Section in the Office of Intelligence, National 

Security Division, and the Office of General Counsel and Civil Liberties Protection Office, in the 

Office of the Director of National Intelligence, and any other offices involved in the compliance 

process at these or other Intelligence Community elements, are staffed and funded appropriately 

to their responsibilities. The internal Executive Branch oversight process that has been built 

requires a lot of man-hours to do right. The quality of oversight will suffer if any of these offices 

are stretched beyond their capabilities. 

Second, Congress could consider requiring an annual or semi-annual public report that 

produces information currently contained in the classified joint compliance assessment in a 

summary fashion, instead of relying on the heavily redacted lengthy report. This report might 

help better inform Members of Congress beyond the Judiciary and Intelligence Committees 

regarding the oversight and compliance process. 

Third, Congress should focus its oversight efforts in working with the NSA, the Justice 

Department, and other components of the Intelligence Community to reduce the complexity of 

internal procedures?0 I recognize that this recommendation may sound counterintuitive, and may 

also be, perhaps, a role more appropriate for the Intelligence committees. But I will expand 

briefly, nonetheless. One aspect of reducing compliance incidents is reducing the complexity of 

internal operating procedures to ensure that operators at the working level have a clear 

understanding of what rules they are operating under. Several years ago, the Department of 

Justice had success in this area by reducing several sets of FBI investigative guidelines into one 

set of rules, and similarly redesigning several different sets of minimization procedures into 

clearer, more streamlined rules. 

In my experience, various elements of the Intelligence Community tend to have different 

philosophies and practices on this front. Some elements, through their offices of General 

Counsel, believe that it is better for the lawyers to be the primary readers and interpreters of 

certain procedures and court orders, and then produce summary documents and training 

materials that operators at the line level can read, understand and use on a daily basis. Other legal 

offices tend to provide the underlying documents themselves to the line operators, and expect 

them to read and understand them, in addition to training that is provided. This practice would be 

more akin to criminal practice where law enforcement officers executing a search warrant read 

and understand it, before executing a search. What may be happening in the FISA context, is that 

the court orders and underlying procedures are so complicated, so complex, that, in some cases, 

http:/ /www.lawfareblog.com/wp-content/uploads/2013/09/Wittes-SSCI-Hearing-Statement_FinaiDraft_9.26.13.pdf). 

20 See, eg., the recently declassified Minimization Procedures Used by the National Security Agency in Connection 

with Acquisitions of Foreign Intelligence Information Pursuant to Section 702 of the Foreign Intelligence 

Surveillance Act of 1978, os Amended (available at http://www.dni.gov/files/documents/ 

Minimization%20Procedures%20used%20by%20NSA%20in%20Connection%20with%20FISA%20SECT%20702.pdf) 

9 
193 

only the lawyers understand what they mean. That opens the door for internal summary 

documents for the workforce and training materials to inadvertently depart from what the 

procedures actually are. Or, the converse happens, where the procedures are written in language 

or format that has come to be expected, but something gets lost in translation from what the 

technical or operational personnel originally intended. Accordingly, my own view is that the 

better practice is to have clear, straightforward, comprehensible rules from the outset. 

Note that I am not suggesting, in any way, a loosening of restrictions. Indeed, the FISC's 

approvals of the collection programs at issue are heavily reliant on the substance and rigor of the 

underlying procedures.21 And I am also not suggesting that what I am describing is necessarily 

responsible for the specific compliance matters described in the documents that have recently 

been declassified. But, although the current compliance incident rate is very low, there is always 

value in continuing to find ways to improve compliance. The committees should know that 

undertaking work in this area is hard, time consuming and completely unglamorous. But it might 

go some distance in reducing the gap in translation between what the rules are, and what is 

actually happening at the ground level, thereby reducing compliance incidents and improving 

confidence. 

Proposals to Enhance Transparency 

The third main critique is that the FISA process, both in terms of collection activities and 

legal interpretations, should be more transparent. There are a number of constituencies that have 

called for greater transparency for some time. The current Administration, in the post-Snowden 

environment, similarly seems to have embraced a level of transparency the Intelligence 

Community has not previously experienced.22 On this point, J would suggest that there is room 

for Congress to act. My own view is that the seemingly ad hoc nature of the recent government 

declassification releases is not actually helping the Intelligence Community as much as they 

might think. To some extent, the periodic and sudden releases of significant legal opinions only 

continues to feed the media frenzy and keeps attention on the Intelligence Community. Congress 

needs to help the Intelligence Community get out of the news, and one way to do that would be 

to work with the Director of National Intelligence and Attorney General to determine what might 

be a more regularized and consistent method of releasing information. For example, Congress 

could amend the reporting provisions in FISA to provide additional public information-whether 

it is statistics, declassified legal opinions, summaries of implementation actions or reports on 

compliance matters-semi-annually, quarterly, or at some other appropriate regular interval. In 

my view, this would cut back on each release being an event unto itself. 

21 See, eg., Amended Memorandum Opinion, In ReApplication of the Federal Bureau of Investigation for an Order 

Requiring the Production af Tangible Things From [Redacted], BR 13-109, dated August 29, 2013. at p.3 (available 

at http:/ /www.uscourts.gov/uscourts/courts/fisc/br13-09-primary-order.pdf). 22 Prepared remarks of DNI James Clapper before the Senate Select Committee on Intelligence, September 26, 

2013 (available at http:/ /icontherecord.tumblr.com/tagged/testimony). 

10 
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Conclusion 

At the end of the day, the Committee will need to evaluate whether it seeks to scale back 

the actual intelligence activities that the Intelligence Community advises continues to provide 

important protection for our national security, or instead focus on measures that will 

substantively enhance the Congress' own confidence in the Intelligence Community, and 

subsequently, public confidence. As I have outlined above, my perspective is that the intelligence 

activities currently conducted under FISA are conducted lawfully, and with care. That said, 

there is substantial value in restoring public confidence in these activities through focusing 

oversight efforts on substantive areas that will achieve the intended results. I thank the Chairman, 

Ranking Member and Committee Members for providing me with this opportunity to share my 

views on current FISA reform proposals. 

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195 

Statement of Senator Patrick Leahy (D-Vt.), 

Chairman, Senate Judiciary Committee, 

Hearing on "Continuing Oversight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Today, the Judiciary Committee meets to conduct further oversight of the intelligence 

community's use of the Foreign Intelligence Surveillance Act, or FISA. No one knows for sure 

how long the Federal government will be shut down, but I feel strongly that the Senate Judiciary 

Committee must continue its work on this important subject. I consulted with Senator Grassley 

about this, and I appreciate that Director Clapper and General Alexander have agreed to proceed 

with the hearing today as scheduled. I am certain that they join me in thanking all of the 

dedicated intelligence community professionals who are also doing their jobs today despite the 

needless shutdown of the Federal government. That said, I have decided to cancel the 

committee's weekly business meeting tomorrow in light of the government shutdown. 

As we continue to re-examine the intelligence community's use ofFISA authorities, let's be 

clear that no one underestimates the threats that our country continues to face, or the difficulty of 

identifying and meeting those threats. We can all agree that we should equip the intelligence 

community with the necessary and appropriate tools to help keep us safe. But I hope that we can 

also agree that there have to be limits on the surveillance powers we give to the government. 

Just because something is technologically possible, and just because something may be deemed 

technically legal, does not mean that it is the right thing to do. 

This summer, many Americans learned for the first time that Section 215 of the USA PATRIOT 

Act has for years been secretly interpreted to authorize the collection of Americans' phone 

records on an unprecedented scale. The American public also learned more about the 

government's collection of internet content data through the use of Section 702 ofFISA. 

Since the Committee's last hearing on these revelations in late July, the American people have 

learned a great deal more. They have learned that the NSA has engaged in repeated, substantial 

legal violations in its implementation of both Section 215 and Section 702 ofFISA. For 

example, the NSA collected, without a warrant, the content of tens of thousands of wholly 

domestic emails of innocent Americans. The NSA also violated a FISA Court order by regularly 

searching the Section 215 phone records database without meeting the standard imposed by the 

Court. 

These repeated violations led to several reprimands from the FISA Court for what it called 

"systemic noncompliance" by the government. The Court also has admonished the government 

for making a series of substantial misrepresentations to the Court. Though we have seen no 

evidence of intentional abuse of FISA authorities, this pattern of misuse is deeply troubling. 

The American people also have learned that the NSA in 2011 started searching for Americans' 

communications in its Section 702 database- a database containing the contents of 

communications acquired without individualized court orders. And just this past weekend, the 

New York Times reported that the NSA is engaging in sophisticated analysis of both domestic 

and international metadata to determine the social connections of Americans. 
196 

As a result ofthese revelations, it is no surprise that the intelligence community faces a trust 

deficit. After years of raising concerns about the scope of FISA authorities and the need for 

stronger oversight, I am glad that many Members of Congress are now interested in taking a 

close look at these programs at both the government's legal and policy justifications for them, 

and the adequacy of the existing oversight regimes. 

In my view, it is time for a change. Additional transparency and oversight are important parts of 

that change, but I believe we must do more. 

That is why I am working on a comprehensive legislative solution with Congressman 

Sensenbrenner, Chairman of the Crime and Terrorism Subcommittee in the House, as well as 

other members of Congress across the full political spectrum. Our bipartisan, bicameral 

legislation will address Section 2 I 5 and Section 702, and a range of surveillance authorities that 

raise similar concerns. 

Our legislation would end Section 215 bulk collection. It also would ensure that the FISA pen 

register statute and National Security Letters (NSLs) could not be used to authorize bulk 

collection. The government has not made its case that bulk collection of domestic phone records 

is an effective counterterrorism tool, especially in light of the intrusion on Americans' privacy. 

In addition, I find the legal justification for this bulk collection to be strained at best, and the 

classified list of cases involving Section 215 to be unconvincing. As the Deputy Director of the 

NSA himself acknowledged at our last hearing, there is no evidence that Section 215 phone 

records collection helped to thwart dozens or even several terrorist plots. 

In addition to stopping bulk collection, our legislation would improve judicial review by the 

FISA Court and enhance public reporting on the use of a range of surveillance activities. The 

bill would also require Inspector General reviews of the implementation of these authoritiesputting into law a request that Senator Grass ley and I, and eight other members of this 

Committee, made last week to the Inspector General for the Intelligence Community. This is a 

commonsense, bipartisan bill -and I look forward to working on this effort in the coming 

months with those in the Senate, in the House, and in the administration. 

I appreciate the concrete steps that both Director Clapper and General Alexander have made in 

recent months to brief members of Congress and move towards more transparency and further 

declassification of documents. I also welcome the participation of the legal and technical experts 

on our second panel, and would note with particular pride that my alma mater, Georgetown Law, 

is well-represented among those witnesses. 

I hope that today's hearing will help inform our legislative efforts. We must do all that we can to 

ensure our nation's security, restore the trust of the American people in our intelligence 

community, and protect the fundamental liberties that make this country great. 

##### 

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"Continued Oversight of the Foreign Intelligence Surveillance Act" Hearing 

Senator Franken Questions for the Record 

(1) Professor CORDERO, in your written testimony you criticized what you called, 

quote, "the ad hoc nature of the recent government declassification releases." You said you 

thought that these disclosures weren't helping the Intelligence Community as much as they 

might think. And you suggested that Congress could amend the reporting provisions in 

FISA to require additional public information at regular intervals. What specific 

information do you think these reports should include? 
198 

"Continued Oversight of the Foreign Intelligence Surveillance Act" Hearing 

Senator Franken Questions for the Record 

(1) Professor DONOHUE, in August the Office of the Director of National Intelligence 

announced that it would start annually disclosing to the public the number of orders issued 

under key surveillance authorities, as well as the number of quote, "targets" affected by 

these orders. Are these promised disclosures enough? Or are actual changes to the law 

necessary to achieve greater transparency? 
199 

Senate Committee on the Judiciary 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Questions for the Record from Ranking Member Charles E. Grassley 

General Keith Alexander, NSA Director 

I. What safeguards are in place to ensure that once the telephone metadata collected under 

Section 215 is in the possession of the NSA, it is accessed and used only in an authorized 

fashion? Specifically, what safeguards help prevent (a) the searching ofthe metadata 

without the required reasonable and articulable suspicion; (b) the improper dissemination 

of information related to U.S. persons obtained as a result of a query of the metadata; (c) 

any unauthorized use whatsoever of the metadata? Under the law and current practice, to 

what institutions are any instances of non-compliance reported, and do these reports 

include the details of the non-compliance, or merely the fact that an instance of noncompliance occurred? Has anyone ever been disciplined for an instance of noncompliance? Please answer this question in an unclassified format, to the extent possible. 
200 

Senate Committee on the Judiciary 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Questions for the Record from Ranking Member Charles E. Grassley 

James Clapper, Director of National Intelligence 

1. Why aren't essential and necessary national security functions of the executive branch 

excepted under the Antideficiency Act as "authorized by law" under 31 U.S.C. § 1341 

(a)(1)(B), even if their suspension does not imminently threaten the safety of human life or 

the protection of property under 31 U.S.C. § 1342, as determined by the Congressional 

Research Service? See Pat Towell & Amy Belasco, "Government Shutdown: Operations of 

the Department of Defense During A Lapse In Appropriations," Congressional Research 

Service, R41745, October I, 2013, p. 13. 
201 

Senate Committee on the Judiciary 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Questions for the Record from Ranking Member Charles E. Grassley 

Professor Carrie Cordero 

1. As this Committee considers changes to the FISC process, including the possibility of 

creating some kind of independent advocate to appear before the Court, what important 

operational considerations would you urge the Conunittee to consider? 

2. What would be the effect of a change in the law that would require prosecutors to obtain 

a search warrant in order to obtain materials, such as phone records, that are in the 

possession of third parties, instead of obtaining them through a subpoena? 

3. Why shouldn't there be specific criminal sanctions against those who intentionally or 

knowingly misuse the phone metadata that is collected? 
202 

Senate Committee on the Judiciary 

"Continued Over.sight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Questions for the Record from Ranking Member Charles E. Grassley 

Professor Laura Donohue 

I. Do you believe that in a typical criminal investigation, the government should be required 

to obtain a search warrant in order to obtain telephone records or other telephone 

metadata, even though these materials are in the possession of a third party? If so, how 

would that legal rule affect these investigations, in which prosecutors currently obtain 

such records with a grand jury subpoena? 

2. There is some precedent in the law for the government to collect large categories of 

records in bulk that may be relevant to an investigation and then to later analyze those 

records to determine what specific items are in fact relevant. For example, in one case a 

federal appeals court upheld the use of a grand jury subpoena to acquire all money order 

applications from a particular location above a certain monetary threshold over a period 

of years. The court upheld the subpoena even though, inevitably, most of the records 

acquired would not be associated with any criminal activity. That case is In Re Grand 

Jury Proceedings: Subpoena Duces Tecum, 827 F.2d 301 (8th Cir. 1987). Obviously, 

bulk collection of metadata under Section 215 is much broader than that example. Are 

there other ways you would distinguish cases like this, in which this type of collection 

has been upheld as legal, from the government's acquisition of telephone metadata under 

Section 215, which you contend is illegal? Would you contend that cases such as the 

above are wrongly decided? 
203 

Senator Mazie K. Hirono 

Questions for the Record following hearing on October 2, 2013 entitled: 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

The Honorable Keith B. Alexander, Director, National Security Agency 

I. At the hearing I asked if the Intelligence Community and the NSA specifically are 

focusing on evolving the technology of privacy safeguards as the surveillance technology 

is clearly evolving. 

a. Can you give examples of what kinds of new technical capacity to protect privacy 

we can expect to benefit from in the future? 

b. Is the NSA working to develop narrower, more targeted collection or is all the 

research and development focused on expanding access to information? 

2. It has been reported that certain data collected by the NSA are shared with domestic law 

enforcement agencies. 

a. What is the legal authority that allows the NSA to give Section 215 of the Patriot 

Act and FISA Amendments Act Section 702 data to other agencies such as the 

FBI, DEA, or other law enforcement agencies? 

b. Does such sharing require the demonstration of"probable cause" before such data 

are shared? 

c. Is the FISA court involved in such approvals on a case-by-case basis? 

3. At the hearing I asked if PRISM is the only intelligence program NSA runs under FISA 

Section 702 and what other programs are run under sections 215 and 702. 

a. Please provide a complete list of the programs and their purposes that are 

operated by the NSA under the authorities provided by sections 215 and 702? 

4. In conducting the programs under Sections 215 and 702 authorities, could less intrusive 

methods of collection have yielded the same information? 

5. At the hearing several questions were asked related to the recent disclosure by the NSA 

Inspector General that 12 instances of intentional misused of signals intelligence 

authorities of the Director of the National Security Agency. 
204 

a. You indicated that "highlighting the punishments that go along with this" type of 

misuse should help prevent future instances of this type of misuse. Do you 

believe that increased criminal penalties for this type of privacy violation by 

intelligence analysts would help with deterrence? 
205 

Senator Mazie K. Hirono 

Questions for the Record following hearing on October 2, 2013 entitled: 

"Continued Oversight oft he Foreign Intelligence Surveillance Act" 

The Honorable James R. Clapper, Director of National Intelligence 

1. At the hearing I asked if the Intelligence Community and the NSA specifically are 

focusing on evolving the technology of privacy safeguards as the surveillance technology 

is clearly evolving. 

a. Can you give examples of what kinds of new technical capacity to protect privacy 

we can expect to benefit from in the future? 

b. Are the NSA and other Intelligence Community agencies working to develop 

narrower, more targeted collection or is all the research and development focused 

on expanding access to information? 

2. It has been reported that certain data collected by the NSA are shared with domestic law 

enforcement agencies. 

a. What is the legal authority that allows the NSA to give Section 2 I 5 of the Patriot 

Act and FISA Amendments Act Section 702 data to other agencies such as the 

FBI, DEA, or other law enforcement agencies? 

b. Does such sharing require the demonstration of"probable cause" before such data 

are shared? 

c. Is the FISA court involved in such approvals on a case-by-case basis? 

3. At the hearing I asked if PRISM is the only intelligence program NSA runs under FISA 

Section 702 and what other programs are run under sections 2 I 5 and 702. 

a. Do any other agencies run intelligence programs under Section 215? 

b. Do any other agencies run intelligence programs under Section 702? 

c. Please provide a complete list of the programs and their purpose that are operated 

by the NSA or other agencies under the authorities provided by sections 215 and 

702? 

4. In conducting the programs under Sections 215 and 702 authorities, could less intrusive 

methods of collection have yielded the same information? 
206 

QUESTIONS FOR THE RECORD 

Senate Judiciary Committee 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Senator Amy Klobuchar 

Questions for General Keith B. Alexander 

As discussed at the hearing, in mid-August 2013, the media began reporting about an internal 

audit from May 2012, which found that the NSA violated privacy rules numerous times. 

This audit was not brought to the Senate Judiciary Committee's attention at the July 31, 2013 

hearing on FlSA surveillance programs. 

• Can you describe how the results of internal audits or investigations of the 

Intelligence Community, and the NSA in particular, are communicated to Congress or 

the public? 

• Will you consider disseminating the results of internal audits or investigations more 

widely to Congress and the public in order to help improve the transparency of 

Intelligence Community activities linked to bulk collection? 
207 

QUESTIONS FOR THE RECORD 

Senate Judiciary Committee 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Senator Amy Klobuchar 

Questions for the Honorable James R. Clapper 

As discussed at the hearing, in mid-August 2013, the media began reporting about an internal 

audit from May 2012, which found that the NSA violated privacy rules numerous times. 

This audit was not brought to the Senate Judiciary Committee's attention at the July 31,2013 

hearing on FISA surveillance programs. 

• Can you describe how the results of internal audits or investigations of the 

Intelligence Community, and the NSA in particular, are communicated to Congress or 

the public? 

• Will you consider disseminating the results of internal audits or investigations more 

widely to Congress and the public in order to help improve the transparency of 

Intelligence Community activities linked to bulk collection? 
208 

QUESTIONS FOR THE RECORD 

Senate Judiciary Committee 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Senator Amy Klobuchar 

Question for Edward Felten 

I am very interested in your recommendation that the FISC should have greater in-house 

technological expertise to assess the government's bulk collection and surveillance requests. 

I" d like to ask you to flesh this out a bit more. 

• How would you recommend working technology experts into the current FISC 

process? 
209 

QUESTIONS FOR THE RECORD- Chairman Leahy 

10/2/13 FISA Hearing 

Questions for NSA Director Alexander 

I. During the hearing, you disagreed with the New York Times' characterization that the 

NSA has been analyzing social networks, including those of Americans, using 

communications metadata as well as other records. While you clarified that much of this 

analysis is done on foreign targets, it remains unclear how extensively the government is 

analyzing and chaining communications and other data involving U.S. persons. 

a. Please provide a detailed description of how this program operates and a copy of the 

Supplemental Procedures and Guidelines for Governing Metadata Analysis that you 

referenced in your testimony. 

b. SpecifY the types of data that are used and from whom they are obtained. 

c. SpecifY the particular rules that apply to the use of data involving U.S. persons and 

queries focused on U.S. persons. 

d. Under what legal authority or authorities is this analysis being conducted? 

e. Is the Foreign Intelligence Surveillance Court aware of this social network analysis, 

and has it approved the practice? 

f. What oversight is conducted of this program, and by whom? 

2. You testified that in 2010 and 2011 the NSA received samples of"locational 

information" in order to test the ability ofNSA systems to handle the data format. While 

you noted that the project ended without any actual analysis of that data, you also 

indicated that acquiring this type of information might be a future requirement to keep 

our country safe. 

a. What types oflocational data did the NSA acquire in 2010 and 2011? 

b. Was the locational data of U.S. persons acquired during this test? 

c. Under what legal authority was this test conducted? 

d. What was the result of this test project? 

e. What happened to the sample location data following the conclusion ofthe test? 

f. How and when were the Intelligence and Judiciary Committees notified when this 

project was initiated? 

g. The statement released by the NSA stated that Congress would be notified if 

locational data were to be obtained in the future. Please confirm that the Senate and 

House Judiciary Committees, in particular, will be notified. 

3. In Judge Bates' October 2011 FISA Court opinion, he described so-called "about" 

collection under Section 702 ofFISA, in which communications are acquired that are not 

to or from a target but rather contain a reference to the name of the tasked account. Have 

you conducted analysis of the effectiveness ofthis type of collection? If so, please 

provide the following: 
210 

a. An explanation of the instances in which obtaining "about" communications has 

proven to be a uniquely valuable tool; 

b. The number of terrorist plots that have been thwarted as a result of"about" collection; 

and 

c. The number of terrorist plots with a domestic nexus that have been thwarted by the 

use of "about" collection. 

4. On October 14, the Washington Post reported that the NSA is harvesting hundreds of 

millions of contact lists and inboxes from e-mail and instant messaging accounts around 

the world, including many belonging to American citizens. In relation to this program, 

please answer the following questions: 

a. Under what legal authority is the NSA collecting these contact lists and inboxes? 

b. What legal standard are analysts required to meet in order to query or disseminate this 

information? 

c. When did this collection program begin and how many e-mail and instant messaging 

contact lists and inboxes have been acquired under this program? 

d. Please provide an estimate of the number of Americans who have had their contact 

lists and/or inboxes collected under this program. 

e. Please explain what the NSA does with the contact lists and inboxes once they are 

collected. 

f. Has the NSA ever acquired the contents of any communications under this collection 

program? 

g. What safeguards are in place to protect the privacy rights of Americans? 

h. Is the Foreign Intelligence Surveillance Court aware of this collection program, and 

has it approved such collection? 

i. What oversight is conducted of this program, and by whom? 
211 

QUESTIONS FOR THE RECORD- Chairman Leahy 

10/2/13 FISA Hearing 

Questions for DNI Clapper 

I. I appreciate the efforts of the administration to be more transparent by declassifying 

several Foreign Intelligence Surveillance Court opinions about Section 215. 

a. How many Foreign Intelligence Surveillance Court opinions containing 

significant legal interpretations relating to Section 215 of the USA PATRIOT Act 

remain classified? 

b. Will you commit to declassifying, with appropriate redactions to protect national 

security, all remaining Foreign Intelligence Surveillance Court opinions 

containing significant legal interpretations relating to Section 215 ofthe USA 

PATRIOT Act? 

2. As Congress considers reforms to surveillance authorities, will you commit to 

declassifying, with appropriate redactions to protect national security, additional material 

from the Department of Justice Inspector General reports on Section 215, the National 

Security Letter authority, and exigent letters? 

3. At a hearing of the Senate Select Committee on Intelligence on September 26,2013, 

Senator Udall asked you if you had a position on declassification of the full history of the 

bulk collection program. You said you would consider this. Have you come to a 

decision about declassifying that history? 

4. Which FISA authority does the Intelligence Community currently rely on to obtain the 

location data of U.S. person targets? Has it previously relied on any other FISA 

authorities to obtain location data of U.S. persons? 

5. Does any element ofthe Intelligence Community use National Security Letters to engage 

in bulk collection on a scale similar to the use of Section 215 for telephony metadata? 

Has any element of the Intelligence Community in the past used National Security Letters 

to engage in such bulk collection? 

6. In Judge Bates' October 2011 FISA Court opinion, he describes so-called "about" 

collection under Section 702 ofFISA, in which communications are acquired that are not 

to or from a target but rather contain a reference to the name of the tasked account. Have 

you conducted analysis of the effectiveness of this type of collection? If so, please 

explain in what instances obtaining "about" communications has proven to be an 

effective tool. 
212 

Hearing: "Continued Oversight of the Foreign Intelligence Surveillance Act" 

Sen. Sheldon Whitehouse 

Questions for the Record 

Questions for The Honorable Keith B. Alexander, Director, National Security Agency 

1. The sudden, unauthorized disclosure of classified information by Edward Snowden 

appeared to catch the intelligence community without a protocol for responding to such 

an eventuality. How have you revised your procedures since the Snowden incident to 

respond more effectively to sudden, unauthorized disclosures of classified information? 

2. As the Snowden incident revealed, the Intelligence Community relies heavily on private 

contractors for a variety of functions. What ensures that the government's reliance on 

contractors is not so great that appropriate legal redress cannot be taken against 

contractors in cases of misconduct, and that defense and intelligence contractors are not, 

in effect, "too big to sue"? 

3. While the bulk telephony metadata collection program under Section 215 of the USA 

PATRIOT Act appears to be legal and constitutional, the program is potentially 

susceptible to abuse. Robust oversight is critical to preventing and addressing such 

abuse. Please list all of the executive, legislative, and judicial oversight that reviews the 

program. 

4. Please provide an unclassified, simple summary of the mitigation procedures that govern 

the bulk telephony metadata collection program. 

5. Has the Foreign Intelligence Surveillance Court's review ofthe bulk telephony metadata 

program yet considered the Supreme Court case United States v. Jones, 132 S. Ct. 945 

(2012), and particularly Justice Sotomayor's concurring opinion in Jones? Please share 

any relevant analysis by the FISC in an unclassified format. 
213 

Hearing: "Continued Oversight of the Foreign Intelligence Surveillance Act" 

Sen. Sheldon Whitehouse 

Questions for the Record 

Questions for The Honorable James R. Clapper, Director of National Intelligence 

I. The sudden, unauthorized disclosure of classified information by Edward Snowden 

appeared to catch the intelligence community without a protocol for responding to such 

an eventuality. How have you revised your procedures since the Snowden incident to 

respond more effectively to sudden, unauthorized disclosures of classified information? 

2. As the Snowden incident revealed, the Intelligence Community relies heavily on private 

contractors for a variety of functions. What ensures that the government's reliance on 

contractors is not so great that appropriate legal redress cannot be taken against 

contractors in cases of misconduct, and that defense and intelligence contractors are not, 

in effect, "too big to sue"? 

3. While the bulk telephony metadata collection program under Section 215 of the USA 

PATRIOT Act appears to be legal and constitutional, the program is potentially 

susceptible to abuse. Robust oversight is critical to preventing and addressing such 

abuse. Please list all of the executive, legislative, and judicial oversight that reviews the 

program. 

4. Please provide an unclassified, simple summary of the mitigation procedures that govern 

the bulk telephony metadata collection program. 

5. Has the Foreign Intelligence Surveillance Court's review of the bulk telephony metadata 

program yet considered the Supreme Court case United States v. Jones, 132 S. Ct. 945 

(20 12), and particularly Justice Sotomayor's concurring opinion in Jones? Please share 

any relevant analysis by the FISC in an unclassified format. 
214 

Questions for the Record 

Senate Committee on the Judiciary Hearing on FISA 

2 October 2013 

QUESTIONS FOR THE RECORD- Chairman Leabv 

10/2/13 FISA Hearing 

Questions for NSA Director Alexander 

I. During the hearing, you disagreed with the New York Times' characterization that the 

NSA has been analyzing social networks, including those of Americans, using 

communications metadata as well as other records. While you clarified that much of this 

analysis is done on foreign targets, it remains unclear how extensively the government is 

analyzing and chaining communications and other data involving U.S. persons. 

a. Please provide a detailed description of how this program operates and a copy of the 

Supplemental Procedures and Guidelines for Governing Metadata Analysis that you 

referenced in your testimony. 

b. Specify the types of data that are used and from whom they are obtained. 

c. Specify the particular rules that apply to the use of data involving U.S. persons and 

queries focused on U.S. persons. 

d. Under what legal authority or authorities is this analysis being conducted? 

e. Is the Foreign Intelligence Surveillance Court aware of this social network analysis, 

and has it approved the practice0 

f. What oversight is conducted of this program, and by whom" 

NSA Response 

a. Please provide a detailed description of how this program operates and a copy of the 

Supplemental Procedures and Guidelines for Governing Metadata Analysis that you 

referenced in your testimony. 

CLASSifiED RESPONSE OMITTED 

b. Specify the types of data that are used and from whom they are obtained 

NSA Response 

CLASSIFIED RESPONSE OMITTED 

c. Specify the particular rules that apply to the use of data involving U.S. 

persons and queries focused on U.S. persons. 

l"SA Response 

The applicable rules are discussed in the answer to question I (d) below. 
215 

d. Under what legal authority or authorities is this analysis being conducted? 

NSA Response 

CLASSIFIED RESPONSE OMITTED 

The use and analysis of enrichment data acquired pursuant to Executive Order 12333 is 

also conducted pursuant to DoD Regulation 5240.1-R. Cnder the DoD regulation, the collection, 

retention, and dissemination of U.S. person information, such as that which might be included 

within address books and buddy lists, is subject to limitations. even if the information is 

publicly-available. 

e. Is the Foreign Intelligence Surveillance Court aware of this social network 

analysis, and has it approved the practice? 

NSA Response 

CLASSIFIED RESPONSE OMITTED 

f. What oversight is conducted of this program, and by whom? 

N'SA Response 

Internal oversight of intelligence activities conducted pursuant to the general S!GINT 

authority provided in Section 1.7(c)(l) of Executive Order I2333 is performed by a number of 

NSA offices, to include the Office of the Inspector General and the Office of the General 

CounseL as well as the Oversight and Compliance Office of the Signals Intelligence Directorate. 

rhe oversight measures include not only those pursuant to SPCMA but also the procedures 

outlined in the attached letter sent by N SA to the Department of Justice in 2006, when the 

Attorney General's approval of the procedures was requested. In addition to the terms of the 

letter, NSA requires analysts to identify any query known to concern a U.S. person, and such 

queries are subject to additional oversight to ensure that there is a valid foreign intelligence 

purpose for them. In addition to multiple levels of internal oversight of the SPCMA and data 

enrichment activities, these activities arc subject to oversight by the Department of Defense IG, 

the Intelligence Community lG, the President's Intelligence Oversight Hoard and the Congress. 

In particular, any violation of the SPCMA procedures, like any other violation of procedures that 

govern NSA's handling oflJ.S. person information, are also covered in the quarterly intelligence 

oversight reports provided to the Assistant to the Secretary of Defense for Intelligence Oversight 

for onward reporting to the President's Intelligence Oversight Board. In addition, NSA provides 

an annual report to the Attorney General on (i) the kinds of information that NSA is collecting 

and processing as communications metadata; (ii) NSA's implementation of the SPCMA 

procedures; and (iii) any significant new legal or oversight issues that have arisen in connection 

with NSA 's collection, processing or dissemination of communications metadata of U.S. 

persons. 
216 

2. You testified that in 2010 and 2011 the NSA received samples of"locational 

infom1ation" in order to test the ability ofNSA systems to handle the data format. While 

you noted that the project ended without any actual analysis of that data. you also 

indicated that acquiring this type of information might be a future requirement to keep 

our country safe. 

a. What types oflocational data did the !\SA acquire in 2010 and 2011? 

b. Was the locational data of U.S. persons acquired during this test? 

c. Under what legal authority was this test conducted? 

d. What was the result of this test project? 

e. What happened to the sample location data following the conclusion of the test'J 

f. How and when were the Intelligence and Judiciary Committees notified when this 

project was initiated? 

g. l'he statement released by the NSA stated that Congress would be notified if 

locational data were to be obtained in the future. Please confirm that the Senate and 

House Judiciary Committees. in particular. will he notified. 

a. What types oflocational data did the NSA acquire in 2010 and 2011? 

1\SA Response 

CLASSIFIED RESPOJ\SE G:\11 !TED 

The mobility data in the test files was kept separate from the operational dataflows. The 

test files were not ingested into the operational databases and were not accessible to N SA ta1get 

analysts. 

b. Was the locational data of U.S. persons acquired during this test~ 

NSA Response 

CLASSII"IED RESPONSE OMITTED 

c. Cndcr what legal authority was this test conducted? 

1\SA Response 

NSA obtained the test records pursuant to the Foreign Intelligence Surveillance Court 

orders in effect for the Section 215 authority at the time. NSA consulted with the Department of 

Justice (DoJ), v.hicb notified the Court. regarding this testing effort. 

u. What was the result of this test project? 
217 

NSA Response 

CLASSIFIED RESPONSE 0Y1lTTED 

c. What happened to the sample location data following the conclusion of the test? 

~SA Response 

CLASSIFIED RESPONSE OMITTED 

f. How and when were the Intelligence and Judiciary Committees notified when this 

project was initiated? 

NSA Response 

CLASSIFIED RESPONSE OMITTED 

g. The stmement released by the NSA stated that Congress would be notified if 

locational data were to be obtained in the future. Please confirm that the Senate 

and House Judiciary Committees, in particular, will be notified. 

NSA Response 

The CLtrrent Primary Order requires NSA to obtain approval of the FJSA Court before 

seeking to obtain location inltlrmation in the future. As NSA has previously committed, the 

Senate and House Judiciary Committees would also be notified, as well as the Senate and House 

Intelligence Committees. 

3. In Judge Bates' October 20 II FISA Court opinion, he described so-called ''about'' 

collection under Section 702 of FJSA, in which communications are acquired that are 

not IO or from a target but rather contain a reference to the name of the tasked 

account. Have you conducted analysis of the effectiveness ofthis type of collection? 

If so. please provide the following: 

a. An explanation of the instances in which obtaining "about'" communications has 

proven to be a uniquely valuable tool: 

b. The number of terrorist plots that have been thwarted as a result of"abouf' collection; 

and 

c. 'I he number of terrorist plots with a domestic nexus that have been thwarted by the 

use of "about" collection. 

:'liSA Response 
218 

NSA's authorities and capabilities work in complementary ways, The tools and methods 

l\ SA uses t()r tracking "use'' of collected communications arc based on targets and collection 

sources and not the specific ways in which individual communications are identified for 

collection from those sources, ''About'' communications provide unique information concerning 

NSA's foreign intelligence targets and provides a unique tool for target discovery and 

development purposes which concern analytic judgments, to include judgments about who might 

be imohed in a terrorist plot, !\SA does not specifically track the use of "about" 

communications and there is no reliable manner to detennine how often the acquisition of such 

communications has played a role in thwarting a terrorist plot, 

4, On Ocwber 14, the JVashington Post reported that the l\SA is harvesting hundreds of 

millions of contact lists and in boxes from e-mail and instant messaging accounts around 

the world, including many belonging to American citizens, In relation to this program, 

please anS\\er the following questions: 

a, Under what legal authority is the NSA collecting these contact lists and inboxes? 

b, What legal standard are analysts required to meet in order to query or disseminate 

this information? 

c, When did this collection program begin and how many e-mail and instant 

messaging contact lists and inboxes have been acquired under this program? 

d, Please provide an estimate of the number of Americans who have had their 

contact lists and/or inboxes collected under this program, 

e, Please explain what the NSA does with the contact lists and inboxes once they are 

collected, 

f Has the NSA ever acquired the contents of any communications under this 

collection program'? 

g, What safeguards are in place to protect the privacy rights of Americans'! 

h, ls the Foreign Intelligence Surveillance Court aware of this collection program, 

and has it approved such collection? 

L \Vhat oversight is conducted of this program, and by whom? 

a, Under \1 hat legal authority is the NSA collecting these contact lists and in boxes? 

NSA Response 

CLASSIFrED RESPONSE OMITTED 

b, What legal standard are analysts required to meet in order to query or disseminate this 

information'' 

NSA Response 

CLASSIFIED RESPONSE OMITTED 

c, When did this collection program begin and how many e-mail and instant messaging 

contact lists and in boxes have been acquired under this program'? 
219 

NSA Response 

CLASSIFIED RESPONSE O:V11TTED 

d. Please provide an estimate of the number of Americans who have had their contact 

lists and/or in boxes collected under this program. 

:'liSA Response 

CLASSIFIED RESPONSE OMITTI::D 

e. Please explain what the NSA docs with the contact lists and in boxes once they are 

collected. 

NSA Response 

CLASSIFIED RESPONSE OMITTED 

f Has the NSA ever acquired the contents of any communications under this collection 

progran1? 

NSA Response 

CLASSIFIED RESPONSE OMITTED 

g. What safeguards are in place to protect the privacy rights of Americans'> 

NSA Response 

CLASSIFIED RESPO:t\SE OMITTED 

h. Is the Foreign lntelligem:e Surveillance Court aware of this collection program, and 

has it approved such collection') 

NSA Response 

CLASSLHED RESPONSE OMITTED 

J. \Vhat oversight is conducted of this program, and by whom? 

NSA Response 

CLASSIFIED RESPONSE OMITTED 

Senate Committee on the .Judiciarv 

"Continued Oversight of the foreign Intelligence Surveillance Act" 
220 

October 2, 2013 

Questions for the Record from Ranking Member Charles E. Grassley 

General Keith Alexander, :"<SA Director 

1. What safeguards are in place to ensure that once the telephone metadata collected under 

Section 215 is in the possession of the NSA, it is accessed and used only in an authorized 

fashion? Specifically, what safeguards help prevent (a) the searching of the metadata 

without the required reasonable and articulable suspicion; (b) the improper dissemination 

of information related to U.S. persons obtained as a result of a query of the metadata; (c) 

any unauthorized usc whatsoever of the mctadata'? Under the law and current practice, to 

what institutions are any instances of non-compliance reported, and do these reports 

include the details of the non-compliance, or merely the fact that an instance of noncompliance occurred? llas anyone ever been disciplined for an instance of noncompliance'' Please ans\\ er this question in an unclassified format, to the extent possible. 

NSA Response 

There arc several internal and external safeguards in place to enable NSA · s authorized 

use of the telephone metadata acquired under the Section 215 provision. Many of these 

safeguards are prescribed by the FISC's Primary Order and are also described in the attached 

opinions the l-JSC issued concerning the program on 29 August 2013 and 11 October 2013. 

NSA employs a selector management tool that houses all Reasonable Aniculable 

Suspicion (RAS)-approved selectors and their required nomination justification. The system also 

provides for the enforcement of the approval process, required by the FISC Order, that all RAS 

nominations are approved by one of the twenty-two officials named in accordance with the Order 

and that any nominated selector known to be used by a U.S. person is reviewed and approved by 

NSA's Otlice of General Counsel to ensure that the justification was not solely based on 

activities that are protected by the First Amendment to the Constitution. 

Access controls prohibit qucry access by personnel who have not been appropriately and 

adequately trained or'' ho do not have the proper credentials authorizing them to conduct queries 

of the acquired telephony metadata. NSA employs technical safeguards that allow only 

authorized personnel to query the BR metadata repository. for intelligence analysis purposes. 

using only selectors on the RAS-approved list (prohibiting queries ofnon-RAS approved 

selectors). and that allow queries to be conducted only out to the authorized three hops (again, 

prohibiting queries from continuing beyond the authorized third hop), These queries are then 

audited to assess their compliance 11ith the Court's requirements. NSA audits these queries every 

30 days. 
221 

the telephone metadata is subject to a 5-year retention limitation pursuant to the FISC 

Order. 

Jn accordance with the FISC Order, NSA and Do.J meet quarterly for the purpose of 

assessing NSA's compliance with the Court's orders. DOJ audits all U.S. person RAS 

detem1inations from the prc\·ious quarter and a sampling ofnon-CS. person RAS determinations 

from the prc,·ious quarter. 

To safeguard against improper dissemination of information related to U.S persons 

obtained as a result of a query into the mctadata, NSA relies on management controls, the 

training regimen required of the analyst to include an enhanced training course specifically on 

the requirements of handling data under this authority. and internal NSA policy. As it relates to 

this authority. prior to disseminating any U.S. person infomJation outside NSA, an official 

holding one of the seven positions named within the Order must determine that the information 

identifying the LS. person is in fact related to counterterrorism information and that it is 

necessary to understand the counterterrorism information or assess its importance. 

In accordance with the FISC Order, approximately every thirty days, NSA files with the 

Court a report that includes a discussion ofNSA's application of the Ri\S standard and the 

number of instances since the preceding report in which NSA has shared, in any form, results 

rrom the queries of the telephony mctadata, that contain U.S. person information, in any form, 

with anyone outside the NSA and includes an attestation that one of the officials authorized to 

apprO\'e such disseminations determined that the information was related to counterterrorism 

inf(mnation and necessary to understand counterterrorism information or to assess its 

importance. 

All RAS determinations are documented. Intelligence analysis queries are audited, 

analysts are trained on the usc of the data, and all BR metadata is tagged and only accessible by 

personnel "ith appropriate credentials. Here again. NSA relics heavily upon management 

controls. the training regimen required by NSA employees that includes enhanced training on the 

requirements of handling data under this authority, as well as internal NSA policy. 

Executive Branch O\·ersight of the 13R FISA program includes the following practices for 

reporting instances of non-compliance and conducting oversight of the program: 

NSA reports instances of noncompliance to DoJ and ODNI. These reports include 

details about the non-compliance. 

DoJ and ODNI meet "ith NSA at least once during the authorization period 

(typically 90 da: s) to review NSA 's processes and its assessment that only 

approved metadata is being acquired. 

• N SA· s Inspector General and Office of the Director of Compliance arc assigned 

specitic BR FISA oversight responsibilities by the Court. 

NSA consults \\ith DoJ on all significant legal interpretations of the BR FISA 

authority. 

• As noted above, DoJ reviews a sample of the selection terms approved to query 

the telephony metadata. 
222 

• NSA also pro,·ides an Intelligence Oversight Quarterly Report to the President's 

Intelligence Oversight Board through the Assistant to the Secretary of Defense for 

Intelligence Oversight This report. which includes details about noncompliance 

incidents, is produced by the NSA Office of the Inspector General and the NSA 

Office of General CounseL and signed by the NSA lnspector General, the NSA 

General Counsd, and NSA Director. 

Judicial Branch oversight includes: 

The Foreign lntelligcnce Surveillance Court Rules of Procedure require the 

Government to report to the Court in writing any non-compliance with the Court's 

approvals or authoriLations. including incidents of noncompliance with Courtappro' ed minimization procedures or applicable law. The Government must include a 

description ofthe facts and circumstances of the non-compliance, any modifications 

the GO\crnment has made or proposes to make in its implementation of the aflected 

authority, and how the Government intends to dispose of or treat any information 

obtained us a result of the non-compliance. 

• '\SA also provides regular 30 day reports to the FISC that describe its application of 

1l1e RAS standard. its implementation, and the operation of an authorized automated 

query process (described below). and the number of disseminations of query results 

that contain l' .S. person infommtion made during the reporting period. 

• NSA reports upon renewal any significant changes in the way NSA receives call 

detail records or changes to NSA's controls to receive. store. process. and disseminate 

BR metadata. 

• The FISC must rene\\ the authorization the !3R FISA program every 90 days. 

Lcgislmive oversight includes: 

The National Security Act and FISA impose requirements to report certain incidents 

of noncompliance to the designated congressional oversight cornmiuees. These 

reports include details about the compliance incidents, and at a committee's request. 

NSA will provide detailed classified briefing(s) regarding the incident. 

OD:\ l and NSA also provide extensive briefings to the Congressional intelligence 

and judiciar} committees on NSA's operation of the BR FISA bulk telephony 

metadata progrmn. 

ODJ\;l and NSA also provide Congress with written notifications regarding all 

significant developments in the program. 

lhc Department of Justice provides Congress with copies of all signi!icm1t FISC 

opinions regarding the BR FISA program. 

In addition, the BR FJSA statutory provision requires the Attorney General. on an annual 

basis. to report to the intelligence and judiciary committees of the Congress (50 U.S.C. 1862): 

Th~ total number ofHR FlSA applications: 

The total number of BR F!SA orders either granted, modified. or denied; and 
223 

• The total number of orders either granted, modi lied. or denied that concerned library 

circulation records. firearms sales records, tax return records, educational records, or 

medical records that would identify a person. 

NSA takes appropriate remedial action with respect to any compliance incident. NSA 

personnel may be subject to disciplinary action in connection with compliance matters whenever 

appropriate. There have been no identified instances of willful noncompliance in connection with 

the l:lR FISA prognun. 
224 

Hearing: "Continued Oversight of the Foreign Intelligence Surveillance Act" 

Sen. Sheldon Whitehouse 

Questions for the Record 

Questions f(lT The Honorable Keith B. Alexander. Director. l\ational Securitv Agencv 

l. The sudden. unauthorized disclosure of classified information by Edward Snowden 

appeared to catch the intelligence community without a protocol for responding to such 

an eventual it). How ha,·e you revised your procedures since the Snowden incident to 

respond more dTccti,·cly to sudden, unauthorized disclosures of classified inl(mnation? 

Response 

An interagency response \\ill be provided under separate cover. 

2. As the Snowden incident revealed. the Intelligence Community relies heavily on private 

comractors for a variety of limctions. What ensures that the government's reliance on 

contractors is not so great that appropriate legal redress cannot be taken against 

contractors in cases of misconduct. and that defense and intelligence contradors are not, 

in effect. .. too big to sue'"? 

Response 

An interagency response "ill be provided under separate cover. 

3. While the bulk telephony metadata collection program under Section 215 of the CSA 

l'i\.TRIOT Act appears to be legal and constitutional. the program is potentially 

susceptible to abuse. Robust oversight is <:ritical to preventing and addressing such 

abuse. Please list all of the executive, legislative, and judicial oversight that reviews the 

program. 

Response 

An imcragenc:y response will be provided w1der separate cover. 

NSA Response 

There are several internal and external safeguards in place to enable NSA's authorized 

use of the telephone metadata acquired under the Section 215 provision. Many of these 

safeguards are prescribed by the FISC s Primary Order and are also described in the attached 

opinions the!' ISC issued concerning the program on 29 August 2013 and 11 October 2013. 

J\SA ~mploys a selector management tool that houses all Reasonable Articulable 

Suspicion (RAS)-approved selectors and their required nomination justification. The system also 

provides f(lr the enforcement of the appro,·a] process. required by the FISC Order. that all!V\S 
225 

nominations are approved by one of the twenty-two of1icials named in accordance with the Order 

and that any nominated selector knm'n to be used by a U.S. person is reviewed and approved by 

NSA ·s Otlice of General Counsel to ensure that the justification was not solely based on 

activities that are protected by the}· irst Amendment to the Constitution. 

Access controls prohibit query access by personnel '' ho have not been appropriately and 

auequatcly traincJ or who do not have the proper credentials authorizing them to conduct queries 

of the acquired telephony metadata. NSA employs technical safeguards that allow only 

authorized personnel to query the BR mctadata repository, for intelligence analysis purposes. 

using only selectors on the RAS-approved list (prohibiting queries of non-R.AS approved 

selectors), and that allow queries to be conducted only out to the authorized three hops (again. 

prohibiting queries trom continuing beyond the amhorized third hop). These queries are then 

audited to assess their compliance\\ ith the Court· s requirements. ~SA audits these queries e\ ery 

30 days. 

The telephone metadata is housed in a segregated database and the mctadata is subject to 

a 5-year retention limitation pursuant to the FISC Order. 

ln accordance with the FISC Order, NSA and DoJ meet quarterly for the purpose of 

assessing l\iSA ·s compliance \\ilh the Court's orders. DOJ audits all U.S. person RAS 

determinations trornthe previous quarter and a sampling of non-US. person R..A.S determinations 

from the previous quarter. 

To safeguard against improper dissemination of information related to U.S persons 

obtained as a result of a query into the metadata. NSA relies on management controls, the 

training regimen required of the analyst to include an enhanced training course specifically on 

the reyuiremcnts of handling data under this authority, and internal NSA policy. As it relates to 

this authority, prior to disseminating any U.S. person information outside NSA, an of1Jcial 

holding one of the se\ en positions named within the Order must detem1ine that the information 

identifying the U.S. person is in fact related to counterterrorism inforn13tion and that it is 

necessary to understand the counterterrorism information or assess its importance. 

In accordance with the FISC Order, approximate!) every thirty days, NSA files with the 

Court a report thm includes a discussion ofNSA's application of the RAS standard and the 

number of instances since the preceding report in which NSA has shareJ, in any form, results 

from the queries of the telephony metadata, that contain U.S. person inlormation. in any form, 

with anyone outside the NSA and includes an attestation that one of the officials authorized to 

appro\e such disseminations determined that the information was related to counterterrorism 

information and necessary to understand counterterrorism inf(xmation or to assess its 

importance. 

All RAS determinations are documented. Intelligence analysis queries are audited, 

analysts are trained on the use of the data, and all BR metadata is tagged and only accessihle by 

personnel V\ith appropriate credentials. Here again, NSA relies heavily upon management 

controls. the training regimen required by NSA employees that includes enhanced training on the 

requirements of handling data under this authority. as well as internal NSA policy. 
226 

Exec uti'" Branch oversight of the BR FISA program includes the following practices for 

reporting instances of non-compliance and conducting oversight of the program: 

NSA reports instances of noncompliance to DoJ and ODNL These reports include 

details about the non-compliance. 

DoJ and ODl'l meet with NSA at least once during the authorization period 

(typically 90 da)Sl to review NSA"s processes and its assessment that only 

approved metadata is being acquired. 

• :\SA"s Inspector General and Office of the Director of Compliance are assigned 

specific BR FISA o-versight responsibilities by the Court. 

• NSA consults with Dol on all significant legal interpretations of the BR FISA 

authority. 

• As noted above, Do.J reviews a sample of the selection terms approved to query 

the telephony metadata. 

• NSA also provides an Intelligence Oversight Quarterly Report to the Presidenfs 

Intelligence Oversight Board through the Assistant to the Secretary of Defense for 

Intelligence Oversight. This report. which includes details about noncompliance 

incidents, is produced by the NSA Office of the Inspector General and the NSA 

Office of General Counsel. and signed by the NSA Inspector General. the NSA 

General Counsel. and !\SA Director. 

Judicial Branch oversight includes: 

• The Foreign Intelligence Surveillance Court Rules of Procedure require the 

Govanmcnt to report t.o the Court in writing any non-compliance \\ith the Court's 

approvals or authorizations, including incidents of noncompliance with Courtapprov.:d minimization procedures or applicable law. The Government must include a 

description of the facts and circumstances of the non-compliance, any modifications 

the Government has made or proposes to make in its implementation of the affected 

authority. and how the Government intends to dispose of or treat any information 

obtained as a result of the non-compliance. 

• NSA also provides regular 30 day reports to the FISC that describe its application of 

the RAS standard, its implementation. and the operation of an authorized automated 

query process (described below). and the munber of disseminations of query results 

thtll contain U.S. person inf(lrmation made during the reporting period. 

~SA reports upon renewal any significant changes in the way NSA receives call 

detail records or changes to NSA's controls to receive. store, process, and disseminate 

BR metadata. 

• Th.: FISC must reauthorize the BR FISA program every 90 days. 

Legislative oversight includes: 

The '\Jational Security Act and FISA impose requirements to report certain incidents 

of noncompliance to the designated congressional oversight committees. These 
227 

reports include details about the compliance incidents, and at a committee's request, 

NSA will provide detailed classified briefing(s) regarding the incident. 

OIY\1 and NSA also provide extensive briefings to the Congressional intelligence 

and judiciary committees on NSA's operation of the BR FISA bulk telephony 

metadata prognun. 

OD!';l and ;-..!SA also provide Congress with written notifications regarding all 

signiticant developments in the program. 

• The Department of Justice provides Congress with copies of all significant FISC 

opinions regarding the BR FISA program. 

In addition. the BR FISA statutory prO\ ision requires the Attorney GeneraL on an annual 

basis. to report to the intelligence and judiciary committees of the Congress (50 U.S. C. 1862): 

The total number of BR FlSA applications: 

• ·1 he total number of BR FISA orders either granted. modified, or denied: and 

• The total number of orders either granted. modified, or denied that concerned library 

circulation records, firearms sales records. tax return records, educational records, or 

medical records that would identify a person. 

NSA takes appropriate remedial action with respect to any compliance incident. "<SA 

personnel may be subject to disciplinary action in connection \\ith compliance matters whenever 

appropriate. There have been no identified instances of willful noncompliance in connection with 

the BR FISA program. 

4. Please pn)\ ide an unclassified, simple summary of the mitigation procedures that govern 

the bulk tclephon~ metadata collection program. 

NSA Respons~ 

Query Terms: L.:nder the FISC orders authorizing the collection, authorized analytic 

queries may begin only with selection term that is associated with one of the FlSCapprc)\ed foreign terrorist organiLations. An identifier used to commence a query of the 

data is rekrrcd to as a "seed.'' Specifically. under Court-approved rules applicable to the 

program, there must be a ''reasonable, articulable suspicion'' that a seed identifier used to 

query the data for foreign intelligence purposes is associated 'Aith a particular foreign 

terrorist organization. No more than twenty-two designated I\ SA officia.ls can make a 

finding that there is "reasonable, articulablc suspicion'' that a seed identifier proposed for 

query is associated with a specific foreign terrorist organization. Further, ~\hen the seed 

identifier is reasonably believed to be used by a t: .S. person, the suspicion of an 

association with a particular foreign terrorist organization cannot be based solely on 

acti\'ities protected by the First Amendment. NSA 's Office of the General Counsel must 

review and approve any such findings for selection terms believed to be used hy U.S. 

persons. 
228 

Query results: Rav\ results of authorized queries are available onl~ to those analysts 

trained in the re:Mietions on the handling and dissemination of the metadata. Query 

results can be further analyzed only for valid foreign intdligence purposes. 

Retention: The raw mctadata collected as pmi of this program is destroyed no later than 

ti'c years (oO months) after its initial collection. 

Dissemination: ~S,\ may disseminate any results from queries of the mctadata subject to 

its generally applicable dissemination requirements governing its E.O. 12333 collection. 

Additionally, prior to disseminating any L'.S. person infi.Jrmation outside ~SA, one of 

seven specified ~SA officials must dckrmine that the information identi!)ing the U.S. 

person is in fact related to counterterrorism information and that it is necessary to 

understand the counterterrorism inti.mnation or assess its impot1ance. More detailed 

descriptions of the Court-ordered minimiLation procedures applicable to this program 

may h~ f()und in the recently declassified and published Primary Orders issued by the 

l·ISC. See hllp:ii" "w.dni.govililcsldocumcnts/Primar~Order_ Collection_215.pdf. 

5. Has the Fnreign Intelligenc<' Surveillance Court's review of the bulk telephony m~:tadata 

program yet considered the Supn:mc Court case L"niled Swws v . .Jones, 132 S. Ct. 945 

(20 12 L and particularlv Justice Sotomayor's concurring opinion in Jones'! Please share 

any relevant anal)sis by the FISC in an unclassillcd format. 

l'iSA Resronse 

On 11 Ocwber 2013, Judge Mclaughlin of the FISC issued a Memorandum Opinion, 

\\hich has been declassified and published by the FISC. explaining her decision to grant 

the Cimcrnmcnt's Application rene"ing the program. Judge McLaughlin addressed the 

.Jones decision on rages 4-6 of the \icrnorandum Opinion. A cop; of the \1cmorandum 

Opinion is attached and also is available at 
229 

QUESTIONS FOR THE RECORD 

Senate Judiciary Committee 

.. Continued Oversight of the foreign Intelligence Surveillance AcC 

October 2, 2013 

Senator Amy Klobuchar 

Questions for General Keith B. Alexander 

As discussed at the hearing, in mid-August 2013, the media began reporting about an internal 

audit hom May 2012, which found that the l\SA violated privacy rules numerous times. This 

audit was not brought to the Senate Judiciary Committee's attention at the July 31, 2013 hearing 

on FISA suneillance programs. 

Can you describe ho\\ the results of internal audits or investigations of the 

Intelligence Community, and the NSA in particular, are communicated to Congress or 

the public 0 

NSA Response 

l\SA conducts a number ofintemal audits. inspections, compliance reviews, and incident 

reporting, both as part of its internal oversight and compliance programs and to support specific 

external reporting requirements. as mandated by law and poliq. 

The referenced document. '':\SAW SID Intelligence Oversight (IO) Quarterly Repm1 

First Quarter Calendar Year 2012 (1 January-31 'v1arch 2012- EXECUTIVE SUMMARY, is 

used intcrnall;, at NSA to improve its oversight and compliance programs. Information 

contained in the document (and other internal NSA documents regarding oversight and 

compliance) forms the basis of a number of submissions to Congress, including but not limited 

to: 

1. Semi-Annual Report to Congress As required by Section 5 of the IG Act of 1978 

(as amended), the NSA Office of the Inspector General (OIG) prepares and sends a 

Semi-annual Reportlo Congress, which includes descriptions of reports produced by 

the OIG during the reporting period and significant outstanding recommendations 

from previous reports. The report is furnished to the Director of NSA, who provides 

the report. along \dth his own statuwrily required report. to the Chairman and Vice 

Chairman of the SSCI and to the Chairman and Ranking Member of the HPSCI. 

2. Annual FAA §702 Report- The NSA OIG prepares an annual report to Congress on 

compliance with the targeting and minimization procedures of Section 702 of the 

Foreign Intelligence Surveillunce Act of 1978 Amendments Act of2008 (fAA §702). 
230 

rhe report is due to Congress by 31 December of each year. It has been 

prepared and submitted yearly since the FY 2009 report. This r<!port is 

provided to the Chairman (and Vice Chairman wherl! applicable) and Ranking 

Members of the House and Senate lntelligence and Judiciary Committees. 

·'· Other--- !\SA's Office oftbe Inspector General responds to Committee requests f(lT 

inf(Jrmation, most recently by a letter date 11 September 2013 to Chairman Lea by and 

Ranking \1cmber Grasslcy. 

Will you consider disseminating the results of internal audits or im estigations more 

widely to Congress and the public in order to help improve the transparency of 

Intelligence Community acti\'ities linked to bulk collection? 

:'liSA Response 

:\SA. along with OD!\1 and DoJ. will continue our efforts to promote greater 

transparency while carefully protecting information that we cannot responsibly release because 

of national security concerns. and we will work with the Intelligence and Judiciary Committees 

if additional in!(mnation is required beyond \\hat is already being furnished. 
231 

Senator Mazie K. Hirono 

Questionsjor the Recordfollrrwing hearing on October 2, 2013 entitled· 

··continued Oversight of the Foreign Inrelligence Surveillance Act·· 

Tile llo11orable Keith B. Alexander, Director, National Securitv Agencr 

I. At the hearing I asked if the Intelligence Community and the NSA specifically are 

focusing on evolving the technology of privacy safeguards as the surveillance technology 

is dearly evolving. 

a. Can you give examples of what kinds of new technical capacity to protect privacy 

we can expect to benefit trom in the future'? 

b. Is the NSA working to develop narrower. more targeted collection or is all the 

research and development l(lcused on expanding access to information'' 

c. Can you give examples of what kinds of new technical capacity to protect privacy 

we can expect to benefit Jl·om in the future~ 

NSA Response 

CLASSll·lED RESPONSE OMITTED 

NSA's internal compliance program, spearheaded hy the Office of the Director of 

Compliance (ODOC). includes formation of a novel rules architecture designed to accurately 

reflect the complete set of rules protecting privacy. This rules architecture is an essential 

component ofNSA · s Smart Data initiatives, as it enables systems to apply critical data tags that 

discem the specific authorization under which NSA collected or acquired specific data. That 

information informs access controls which prevent an individual from seeing data for which they 

have not been trained and/or do not have a mission need. 

ODOC de1·eloped and manages Verification of Accuracy procedures to provide an 

increased level of confidence that tactual representations are hased on an ongoing shared 

understanding among operational, technical. legal, policy. and compliance officials. NSA has 

applied them to authority-related documentation, especially when describing complex technical 

matters to :\SA· s O\erseers. 

1\SA also leverages a numher of technology solutions to ultimately assist and audit 

analysts as they perform their job. For example, NSA uses an access control architecture that 

prevents personnel from accessing collected data unless they have the required credentials and 

training. N SA also uses appropriate mission sponsorship and an accountability system that 

pro\·ides a repository of queries to NSA data and the ability to perform post-query auditing. NSA 

continues to explore ne\v v,ays to develop and enhance its use of technology to support and 

enforce privacy protections for its SIGINT and other mission data. 
232 

2. Is the NSA ~'orking to de\elop narrmver, more targeted collection or is all the research 

and development focused on expanding access to infonnation'J 

:\SA Response 

CLASSIFIED RESPONSE OMITTED 

3. It has been reported that certain data collected by the l\SA are shared with domestic law 

enforcement agencies. 

a. \Vhat is the legal authority that allows the l\SA to give Section 215 of the Patriot 

Ac:t and FISA Amendments Act Section 702 data to other agencies such as the 

FBI. DEA. or other law enforcement agencies'? 

b. Does such sharing require the demonstration of ''probable cause'' before such data 

arc shared? 

c. Is the l-ISA court involved in such approvals on a case-by-case basis? 

d. What is the legal authority that allows the NSA to give Section 215 of the Patriot 

Act and FISA Amendments Act Section 702 data to other agencies such as the 

FBL IJEA. or other law enforcement agencies'' 

NSA Response 

NSA disseminates foreign intelligence information derived from both lawful queries of 

Section 215 data and FAA Section 702 targeting to intelligence components of law enforcement 

agencies, including the intelligence components of the FBI, in response to approved foreign 

intelligence requirements. The Foreign Intelligence Surveillance Act also requires minimization 

procedures to indudc ·'procedures that alllm for the retention and dissemination ofinforrnation 

that is evidence of a crime _ , , and that is to be retained or disseminated for law enforcement 

purposes (section 10 l of the FISA). Section I 06 of the FlSA also sets forth specific requirements 

that are applicable to law enforcement usc of celtain types of F!SA collection. 

Section 215 

The kgal authority that allows ;\SA to disseminate information derived from lawful 

queries of Section 21 5 data is found within the applicable orders of the FISC The FISC's 

Primary Order permits NSA to disseminate an) results from queries of the Section 215 metadata 

subject to the minimization and dissemination requirements and procedures of United States 

Signals Intelligence Directive SPOOlS (USSID 18}. The Primary Order also requires that. prior 

to disseminating any U.S. person information outside NSA. one of seven specified NSA officials 

must detennine that the information identifying the U.S. person is in fact related to 

counterterrorism information and that it is necessary to understand the counterterrorism 

inforrnation or assess its importance. Certain disseminations arc not subject to the foregoing 

requirement The Primary Order states that '·Notwithstanding the above requirements, NSA may 

share results from intelligence analysis queries of the HR metadata. including U.S. person 

identifying information, with b:;>;ecutive I3ranch personnel (l) in order to enable them to 
233 

d.:termine whether the information contains exculpatory or impeachment information or is 

otherwise discoverable in legal proceedings or (2) to facilitate their lawful oversight functions.·· 

NSA disseminates information derived ti·om queries of Section 2 J 5 data for 

counterterrorism intelligence purposes, not law enforcement purposes. Apart from the fBI, 

\\hich has a counterterrorism intelligence mission, NSA docs not as a matter of practice 

disseminate Section 215 results directly to any agencies with a Jaw enforcement mission, 

including the Db\. 

FAA Section 702 

FAA Section 702 provides liJr the targeting ofnon-l!.S. persons reasonably believed to 

be located outside the united States to acquire foreign intelligence information. NSA processes 

FAA Section 702 acquired data in accordance with FISA Court-reviewed minimization 

procedures and disseminates foreign intelligence information in accordance with the standards 

set forth in those procedures to recipients who require the information in the performance of 

ol1icial duties. 

'!he legal authority that allows NSA to disseminate information derived from FAA 

Section 702 targeting is found within the minimization procedures adopted by the Attorney 

General, in consultation \\ith the Director of:\ational Intelligence. and approved by the FISA 

Coun. See 50 l'.S.C. § 188la(e). These procedures authorize NSA to disseminate 702-acquired 

information not concerning any U.S. persons in accordance with other applicable Jaw, regulation 

and policy. The procedures impose stringent reqllirements for the dissemination of 

communications of or concerning a U.S. person: such communications may be disseminated only 

if certain conditions are satisiied (e.g., a report containing the identity of a u.S. person may be 

disseminated if the identity is necessary to understand foreign intelligence information or assess 

its importance.) Foreign intelligence: includes infonnation concerning international terrorist 

activities. and other hostile activities directed against the U.S. by foreign powers. entities, 

persons and their agents. While there are numerolls foreign intelligence topics which are of 

interest both to the foreign intelligence and la>' enforcement communities, NSA's core mission 

is to disseminutc inf<mnation for the purpose of advancing national security interests not criminal 

prosecutions. ·1 he Attorney General-adopted and FJSA Court-approved minimization procedures 

applicable to :'-JSA's FAA Section 702 collection separate!) authori.-:c the retention and 

dissemination to appropriate law enforcement authorities of information that is reasonably 

believed to contain evidence of a crime. 

Other authorities separately require NSA to report to DoJ inforn1ation relating ll1 potential 

crimes. For example, Section J. 7(a) of Executive Order 12333 requires NSA to "report to the 

Attorney General possible violations of the federal criminal laws by employees and of specified 

federal criminal laws by any other person ... as speciiied in [agreed uponj procedures." 

a. Does such sharing require the demonstration of "probable cause'' before such data 

arc shared? 

NSA Response 
234 

N SA docs not need to demom;tratc '·probable cause" prior to disseminating the results of 

either a lawful Section 215 query or fAA Section 702 targeting, but rather must comply with the 

requirements listed above in the answer to Question 2(a}. Any recipient agency may use the 

disseminated information as permitted by its 0\\11 legal authorities. 

b. Is the FlSA court involved in such approvals on a case-by-case basis? 

~SA Response 

The FlSA Court does not approve disseminations of Section 215 data on a case-by-case 

basis. The FISA Court recei\es a monthly report from NSA that includes a list of all 

disseminations. in any form, of U.S. person information that occurred \\ithin the period covered 

hy the report. This list includes the date of the dissemination, the recipient(s) of the 

dissemination, and the fotm of the dissemination (e.g., formal intelligence report, e-mail, \erbal 

communication). 

!he FISA Court does not approve disseminations of FAA Section 702 data on a case-hycase basis. All disseminations of FAA section 702 data are available for review by DoJ and 

ODNI, \\hose representatives conduct oversight ofl\SA's exercise of the authority under FAA 

section 702 approximately once every 60 days. DoJ and ODN! review disseminations to ensure 

that :--.IS A complies v\ith the applicable minimization procedures, including any disseminations 

regarding criminal activity. 

4. At the hearing l asked if PRIS,~1 is the only intelligence program NSA runs under FISA 

Section 702 and "hat other programs are run under sections 215 and 702. 

a. Please provide a complete list of the programs and their purposes that are 

operated by the 1\SA under the authorities provided hy sections 215 and 702? 

.\SA Response 

CLASSIFIED RESPONSE OMITTED 

5. In conducting the programs under Sections 215 and 702 authorities, could less intrusive 

methods of collection have yielded the same information? 

~SA Response 

CLASSIFIED RESPO:--.ISE OMITTED 
235 

6. At the hearing several questions '"vere asked related to the recent disclosure by the l\SA 

Inspector General that 12 instances of intentional misuse of signals intelligence 

authorities of the Director of the National Security Agency. 

a. You indicated that ··highlighting the punishments that go along with this .. type of 

misuse should help prevent future instances of this type of misuse. Do you 

believe that increased criminal penalties for this type of privacy violation by 

intelligence analysts would help with deterrence'' 

NSA Response 

It is difficult to predict\\ hether increased criminal penalties for intentional violations of 

SlG!l\T authorities >\(lUid help to deter the kinds of misuse reported by NSA's Inspector 

General. The small number of reported incidents suggests that existing remedies may be 

sufticient to deter unlawful conduct for the Yast majority of the workforce. 
236 

United States Senate 

Committee on the Judiciary 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

on October 2, 2013 

Responses to Questions for the Record 

submitted October 29, 2013 

Carrie F. Cordero 

Director of National Security Studies 

& Adjunct Professor of Law 

Georgetown University Law Center 
237 

Senate Committee on the Judiciary 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Questions for the Record from Ranking Member Charles E. Grassley 

1. As this Committee considers changes to the FISC process, including the possibility 

of creating some kind of independent advocate to appear before the Court, what 

important operational considerations would you urge the Committee to consider? 

There are important operational considerations that come into play with respect to the 

proposals to create an independent advocate to appear before the Court. With respect to 

consideration of adding adversarial process before a request for surveillance, physical 

search or foreign intelligence acquisition is granted and conducted, this additional process 

could delay important foreign intelligence gathering. Bringing an outside advocate up-tospeed would take time. Particularly if the special advocate is an entity outside the existing 

interagency group of Intelligence Community and Department of Justice personnel 

involved in preparing requests to the Foreign Intelligence Surveillance Court (FISC), then 

the special advocate would have to request documents, briefings, and any additional 

information it requires in order to develop an informed view and prepare its presentation 

to the FISC. In order to be effective, the special advocate would likely need to 

continually be kept up-to-date regarding the technologies involved in collection, as well 

as targeting and minimization rules and guidelines. Creating a special advocate may tum 

out to be far more extensive than simply appointing an outside or inside lawyer to 

challenge government proposals: it could potentially mean creating an entire new office 

of lawyers, paralegals, support, security personnel and facilities accommodations to 

support the advocate's work. 

In addition to the time this would add to the FISC's consideration of the collection 

request, this process would also necessarily take Intelligence Community personnel, such 

as NSA operators, analysts, oversight personnel and attorneys off-mission because it is 

often these same personnel who would need to be involved in informing the special 

advocate. These Intelligence Community operators and experts are likely already 

involved in providing extensive briefings and information to the existing oversight 

personnel at the Department of Justice, the Office of the Director of National 

Intelligence, and Congress. 

2 
238 

2. What would be the effect of a change in the law that would require prosecutors to 

obtain a search warrant in order to obtain materials, such as phone records, that 

are in the possession of third parties, instead of obtaining them through a 

subpoena? 

A change in the law imposing a warrant requirement for the production of records would 

bring criminal prosecutions and investigations to a screeching halt. It has long been 

established under existing Supreme Court precedent that records voluntarily turned over 

to a third party are not subject to an expectation of privacy and therefore law enforcement 

authorities do not need to secure a warrant to obtain them. Every day, criminal 

prosecutors and investigators use legal process such as grand jury subpoenas and 

administrative subpoenas to obtain records relevant to investigations across the wide 

range of criminal activity. In addition, third party records are also a daily part of civil 

proceedings such as document requests in civil litigation and administrative inquiries. 

3. Why shouldn't there be specific criminal sanctions against those who intentionally 

or knowingly misuse the phone metadata that is collected? 

As the NSA Inspector General's letter to the Ranking Member dated September II, 2013 

provides, there have been 12 instances ofNSA personnel improperly misusing signals 

intelligence information maintained by NSA since January I, 2003. It does not appear, 

based on the letter, that any of those instances pertain to information acquired pursuant to 

FISA. Therefore, the current public record does not suggest that NSA personnel have 

misused the phone metadata collected pursuant to Section 215 of the USA Patriot Act, 

calling in to question the need for any such sanction in the law. In my view, the types of 

incidents that did occur as stated in the Inspector General's letter are best handled 

administratively, through re-training, discipline or termination, depending on the facts 

and circumstances of the particular case, similar to the way that professional 

responsibility matters in other contexts are handled across Executive Branch agencies. 

3 
239 

"Continued Oversight of the Foreign Intelligence Surveillance Act" Hearing 

Senator Franken Questions for the Record 

1. Professor CORDERO, in your written testimony you criticized what you called, 

quote, "the ad hoc nature of the recent government declassification releases." You 

said you thought that these disclosures weren't helping the Intelligence Community 

as much as they might think. And you suggested that Congress could amend the 

reporting provisions in FISA to require additional public information at regular 

intervals. What specific information do you think these reports should include? 

A key area that would benefit from further attention is expanding the quality of 

information publicly available regarding the oversight and compliance process of 

surveillance activities under FISA. In August 2013, the Office of the Director ofNational 

Intelligence released a declassified version of the Attorney General and Director of 

National Intelligence's joint compliance assessment concerning acquisition under Section 

702 of FISA. This document contained valuable information regarding how the oversight 

and compliance process takes place, and the results of the compliance reviews. However, 

this was also a somewhat heavily redacted document. It would be more useful to the 

public, as well as to Members of Congress beyond the Intelligence and Judiciary 

Committees, to have a summary, written-for-release version of the compliance 

assessment that is made publicly available at some regular interval, perhaps semiannually, for example. In addition, it may better inform the public and broader Congress 

if there were, perhaps annually, a report that describes the oversight and compliance 

structure and activities for FISA activities beyond just section 702 collection. 

A second area that would benefit from a regularized process is the release of FISC 

opinions. It may be helpful for Congress to work with the Department of Justice, the 

Office of the Director ofNational Intelligence and the Foreign Intelligence Surveillance 

Court (FISC) to evaluate options that are available to release FISC opinions that are in 

the public's interest. For example, should opinions be released as soon as they are issued 

and have undergone declassification review? Or, would it be better to have them released 

on a regular schedule, quarterly, for example? If releasing such opinions is going to 

happen on a more frequent basis going forward, then it may cut down on the novelty if 

they were released on a schedule, than on any given day which then generates several 

days' worth of hurried media attention directed at the Intelligence Community. A 

quarterly release of significant opinions could also, because it would be done in a 

deliberate way, provide opportunity for the FISC or Executive Branch to prepare a 

summary of the opinion(s). A summary document might be useful so that these releases 

have a broader distribution and better inform the public, beyond just the national security 

4 
240 

legal or academic communities which are more likely to read and digest the full opinions 

themselves. 

Third, I would suggest that there is value in working with the Department of Justice, 

FISC and the Intelligence Community to determine if there is additional information 

regarding the cooperation of the private sector that can be released publicly, in a way that 

is protective of national security information. The private sector has important interests in 

maintaining the trust of their customers and investors while complying with lawful 

requests from the government to assist in both criminal investigations and national 

security matters. While I would imagine that publicly disclosing numbers of persons or 

facilities targeted for collection under FISA would likely be of concern to the Intelligence 

Community, perhaps enabling release of information regarding numbers of requests 

broken down by federal, state, and local requests, and within the federal category, 

criminal investigatory versus national security requests, could be one path for 

discussions. Facilitating the companies' abilities to put the national security requests in a 

broader context of how it cooperates with national security and law enforcement, both 

within the United States and with foreign governments, is a worthwhile endeavor in order 

to maintain the important role that the private sector plays in supporting national security 

and law enforcement activities. 

5 
241 

Senate Committee on the Judiciary 

"Continued Oversight of the Foreign Intelligence Surveillance Act" 

October 2, 2013 

Questions for the Record from Ranking Member Charles E. Grassley 

Professor Laura Donohue 

1. Do you believe that in a typical criminal investigation, the government should be 

required to obtain a search warrant in order to obtain telephone records or other 

telephone metadata, even though these materials are in the possession of a third 

party? If so, how would that legal rule affect these investigations, in which 

prosecutors currently obtain such records with a grand jury subpoena? 

In Smith v. Maryland, the Supreme Court held that a pen register placed on a telephone line did not 

constitute a search within the meaning of the Fourth Amendment, because persons making phone calls do 

not have a reasonable expectation that the numbers they dial will remain private. 1 The key sentence from 

the decision centered on the customer's relationship with the telephone company. Namely "a person has 

no legitimate expectation of privacy in information he voluntarily turns over to third parties."' It is this 

sentence that spawned what has come to be known as "third party doctrinc."3 

The government relies on this opinion and the resultant third party doctrine to argue that, as in a typical 

criminal investigation, the bulk collection of U.S. persons' records in the telephony metadata program is 

constitutional. In its August 2013 White Paper, for instance, the Department of Justice suggests that a 

Section 215 order is not a search, because the Supreme Court "has expressly held [that] participants in 

telephone calls lack any reasonable expectation of privacy under the Fourth Amendment in the telephone 

1 Smith v. Maryland, 442 U.S. 735, 743~46 (1979). For more detailed discussion of the questions posed and further exposition of 

the points raised in this response, see Laura K. Donohue, Written Testimony, Senate Committee on the Judiciary, Continued 

Oversight of the Foreign Intelligence Surveillance Act, Oct. 2, 2013; and Laura K Donohue, Bulk Metadata Collection: 

2 !d. 

3 See also U.S. v. Miller, 425 U.S. 435 (1976) (extending third party doctrine to banking records). But see U.S. v. Warshak, 631 

F.3d 266 (61

h Cir. 2010) (declining to extend third party doctrine to email stored with anlntemet Service Provider on the grounds 

that customers have a reasonable expectation of privacy in their email). 
242 

numbers dialed."4 In ACLU v. Clapper, the government again cites to the Court's reasoning in Smith v. 

Maryland, that, even if a subscriber harbored a subjective expectation that the numbers dialed would 

remain private, it would not be reasonable, since individuals have "no legitimate expectation of privacy in 

information" voluntarily turned over "to third parties."' The government suggests that because Courts 

subsequently followed Smith to find no reasonable expectation of privacy in email to/from and Internet 

protocol addressing information, as well as subscriber information, "Smith is fatal to Plaintiffs' claim that 

the collection ofmetadata records of their communications violates the Fourth Amendment."6 

Judge Claire Eagan of the Foreign Intelligence Surveillance Court similarly relied almost exclusively on 

Smith v. Maryland in her recently-declassified August 20!3 opinion: "The production of telephone 

service provide metadata is squarely controlled by the U.S. Supreme Court decision in Smith v. 

Maryland." 7 In the normal course of business, she explained, telephone service providers maintain call 

detail records-records about which customers are aware. Customers therefore assume the risk that the 

telephone company will provide the information to the government. 8 That bulk collection of such 

information was involved was of no consequence: "[W]here one individual does not have a Fourth 

Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a 

Fourth Amendment interest springing into existence ex nihi/o."9 

The problem with these arguments is that they fail to consider the specific facts and circumstances that 

the Court faced in Smith, in which the police targeted one suspect for a limited period of time, for a 

specific purpose. They also fail to address critical ways in which the privacy interests impacted by the 

use of pen registers and their application to broad sectors of the population have changed as technology 

has advanced. 10 These factors distinguish the way in which third party doctrine works in the typical 

criminal case contemplated by Senator Grassley's question from the way in which the government is now 

collecting metadata under Section 215. 

In !976, Patricia McDonough was robbed in Baltimore, Maryland. After providing a description of the 

robber and a 1975 Monte Carlo she had seen near the scene of the crime to the police, she started 

4 Administration White Paper: Bulk Collection of Telephony Metadata under Section 215 of the USA Patriot Act 2 (Aug. 9, 

?013), at 19, available at https:J/w\\-·w.documentcloud.org-'documents!7502ll-adm!nt~.!!:?tion-white:J2€!Qer-s_~f.~i_Q!l-2l5.htmL 

· Defendants' Memorandum of Law in Support of Motion to Dismiss the Complaint, ACLU v. Clapper, 13 Civ. 3994,32-33 

(quoting Smith v. Maryland, 432 U.S. 735 (1979) at 743-744). 

'!d. at 33. 7 In ReApplication of the Federal Bureau oflnvestigation for an Order Requiring the Production of Tangible things from 

[REDACTED], No. BR 13-109, slip op. at 6 .. The only other case directly cited in her Fourth Amendment discussion appears to 

be a decision of the FISC court itself, with secondary citations. The details of the secret court opinion that she cites as precedent, 

however, are redacted. 8 !d. at 7-8. 9 !d. at 9. 10 This failure underscores the absence of opposing counsel-an omission that would seem to be of particular import when 

assessing constitutional concerns. 

2 
243 

receiving threatening and obscene phone calls from a man who identified himself as the robber. The caller 

at one point asked her to step out onto her front porch. When she did so, she saw the 197 5 Monte Carlo 

driving slowly past her home. The police observed a car of the same description in her neighborhood. 

Tracing the license plate, police discovered that the car was registered to Michael Lee Smith. 11 The 

following day, the police asked the telephone company to install a pen register to trace the numbers called 

from Smith's home telephone. The company agreed, and that day Smith called McDonough's home. On 

the basis of this and other information, the police obtained a search warrant. Upon executing it, they 

found a telephone book in Smith's home, with the corner turned down to McDonough's name and 

number. In a six-man lineup, McDonough identified Smith as the person who robbed her. 12 

The police did not obtain a warrant prior to placing the pen register. But reasonable suspicion had been 

established that the target of the surveillance, Michael Lee Smith, had robbed, threatened, intimidated, 

and harassed Patricia McDonough. The police, accordingly, placed the pen register consistent with their 

reasonable suspicion that Smith was engaged in criminal wrongdoing. 

This is the context of ordinary criminal investigations, which, when conducted consistent with Smith v. 

Maryland, do not require a search warrant for third party records. The telephony metadata program takes 

place in an entirely different context. 

The National Security Agency ("NSA") is engaging in bulk collection absent any reasonable suspicion 

that individuals, whose telephone information is being collected, are engaged in any wrongdoing. To the 

contrary, the Foreign Intelligence Surveillance Conrt ("FISC") acknowledges that almost all of the 

information thus obtained will bear no relationship whatsoever to criminal activity. The government, 

however, wants to place a pen register and trap and trace on everyone in the United States-essentially 

treating every U.S. citizen as though they are Michael Lee Smith. 

In Smith v. Maryland, the police wanted only to record the numbers dialed from the suspect's telephone. 

At the time the case was decided, telephone companies were treated as utilities, with local telephone calls 

billed by the minute. What was unique about the technology involved in the pen register was that it could 

identify and record the numbers dialed from a telephone-a function that the phone company itself did 

not have. Its purpose was specific and limited. 

In contrast, the bulk collection program collects the numbers dialed, the numbers who call a particular 

number, trunk information, and session times. Thus, while the police in 1979 were concerned with 

whether Michael Lee Smith was calling a particular number, the NSA metadata program now collects all 

II 442 U.S. 735 (!979). 

]2/d. 
244 

numbers called-in the process obtaining significant amounts of information about individuals. Calls to a 

rape crisis line, an abortion clinic, a suicide hotline, or a political party headquarters reveal significantly 

more information than what was being sought in Smith. This makes the amount of information available 

significantly different. 

Trunk information, moreover, reveals not just the target of a particular telephone call, but where the 

callers (and receivers) are located. At the time of Smith, the police were only able to teJJ when someone 

was located at Smith's home. The telephone did not follow Smith around. What mobile technologies 

mean is that the police can now ascertain where people are located-creating a second layer of 

surveillance based simply on trunk identifier infonnation. The bulk collection of records means that the 

government has the ability to do that for not just one person, but for the entire country. 

Further characteristics distinguish the case. In Smith v. Maryland, the police sought the inforn1ation for a 

short period. The bulk metadata coJJection program, in contrast, while continued at 90-day intervals, has 

been operating for seven years now-and, the NSA argues-should be a permanent part of the 

government surveillance program. 

Perhaps the most important difference between the two situations lies in the realms of technology and 

social construction. The extent to which we rely on electronic communications to conduct our daily lives 

is of a fundamentally different scale and complexity than the situation that existed at the time the Court 

heard arguments in Smith. Rcsultantly, the infonnation that can be learned about not just individuals, but 

neighborhoods, political parties, Girl Scout troops-indeed, any social, political, or economic networksimply by the placement of a pen register or trap and trace, is light years ahead of what the Court 

contemplated in 1979. 

The volume of communications being monitored further distinguishes the telephony metadata program 

from the question posed by Senator Grassley with regard to criminal investigations. Although the FISC 

orders that have been released and acknowledged by the government relate solely to one company 

(Verizon), officials have also acknowledged that the acquisition of telephony metadata extends to the 

largest telephone service providers in the United States: Vcrizon, AT&T, and Sprint." This means that 

every time most U.S. citizens make a telephone call, the NSA is coJJecting the location, the number 

called, the time of the call, and the length of the conversation. 14 The numbers are worth noting. 

According to the Wall Street Journal, Vcrizon has 98.9 miJJion wireless customers and 22.2 million 

JJ Siobhan Gonnan et al, U.S. Collects Vast Data Trove, WALL ST. J., June 7, 2013, at AI, available at 

h.!!IE~9n.•vsj.com!J l~J_;)oue. 

14 !d. 

4 
245 

landline customers; AT&T has 107.3 million wireless customers and 31.2 million landlinc customers, and 

Sprint has 55 million customers in totaL 15 The program monitors hm1drcds of millions of people. 

As for the type of information obtained, the FISC order requests that the telephone service providers give 

the government all "call detail information", a term that is defined by regulatory provision as: 

Any information that pertains to the transmission of specific telephone calls, including, for 

outbound calls, the number called the time, location, or duration of any call and, for inbound 

calls, the number from which the call was placed and the time, location, or duration of any calL 16 

The FISC order further directs that the company provide "session identifying information", such as 

originating and terminating number, International Mobile Subscriber Identity number, and the 

International Mobile station Equipment Identity number. For most Americans, these numbers are 

connected to the identity of the user. 17 In addition, the FISC order directs the company to provide trunk 

identifier information. This data traces the route a telephone call takes, in the process establishing the 

location of the people taking part in the conversation. 18 

What can be done with this information is a significantly deeper intrusion on Americans' right to privacy 

than was at issue in Smith. It is easier to aggregate and analyze telephony metadata than content 

information precisely because it is structured. 19 Sophisticated data-mining and link-analysis programs can 

be applied this information, and it can do so faster, deeper, and more cheaply than in the past. Even the 

amount of data that can be retained for such analysis is of a radically different scale than was conceivable 

in 1979. From this information, the government can determine patters and relationships, such as personal 

details, habits, and behaviors that U.S. citizens had no intention or expectation of sharing.20 The 

government can also obtain content." 

Even if U.S. citizens wanted to opt out of having this information collected, it would be virtually 

impossible to do so. There have been advances in encryption. But these technologies all revolve around 

content-not the metadata. Although some technologies are focused on metadata, these are not 

15 ld. 16 47 CF.R. §64.2003 (2012). Senior intelligence officials have repeatedly asserted that, while they have the authority to collect 

GPS data, and have in the past, they are not currently doing so under the section 215 telephony metadata program. See, e.g .• 

Statements of General Keith Alexander and Director of National Intelligence Clapper, Senate Judiciary Committee Hearing, Oct. 

2, 2013; Siobhan Gorman & Julian E. Barnes, Officials: NSA Doesn't Collect Cellphone~Location Records, WALL Sr.l, June 16, 

2013, http://onlwsj.com/13MnSsp. 17 Continued Oversight of the Foreign Intelligence Surveillance Act, Hearing Before the S Comm. on the Judiciary, 113 Cong. 3 

(20!3) (written testimony by Edward W. Felten). 

18 !d. 19 /d,at4. 20 !d., at 5. 21 ld., at 8~9. 
246 

sufficiently advanced to allow for real-time communication.22 The option is therefore not to use a 

telephone. The cost of doing so, however, would lean towards divesting oneself of a role in the modern 

world-impacting one's social relationships, employment, and ability to conduct financial and personal 

affairs. 

Notably, all of these considerations are focused on telephony metadata. But the logic of the government's 

argument, as applied to metadata generally, has virtually no limit. One could equally argue that all 

financial flows, Internet usage, and email exchanges are relevant to ongoing terrorism investigations 

under Section 215. Almost all forms ofmetadata could be at stake. 

In summary, the situation is fundamentally different than that which prevails with regard to third party 

data in ordinary criminal investigations, in the course of which, consistent with Smith v. Maryland, the 

government is not required to obtain a search warrant to obtain pen register information. 

2. There is some precedent in the law for the government to collect large categories of 

records in bulk that may be relevant to an investigation and then to later analyze 

those records to determine what specific items are in fact relevant. For example, in 

one case a federal appeals court upheld the use of a grand jury subpoena to acquire 

all money order applications from a particular location above a certain monetary 

threshold over a period of years. The court upheld the subpoena even though, 

inevitably, most of the records acquired would not be associated with any criminal 

activity. That case is In Re Grand Jury Proceedings: Subpoena Duces Tecum, 827 

F.2d 301 (8th Cir. 1987). Obviously, bulk collection of meta data under Section 215 

is much broader than that example. Are there other ways you would distinguish 

cases like this, in which this type of collection has been upheld as legal, from the 

government's acquisition of telephone metadata under Section 215, which you 

contend is illegal? Would you contend that cases such as the above are wrongly 

decided? 

22 !d., at 7-8. 

6 
247 

In In Re Grand Jury Proceedings, the government served two grand jury subpoenas duces tecum on 

Western Union.23 The first required production of monthly wire transactions at the Royalle Inn, Kansas 

City, Missouri, for a period of 13 months.24 The second required production of Telegraphic Money Order 

Applications above $1,000 from the Royalle Inn, Kansas City, Missouri, between January 1984 and 

February 1986.25 Western Union moved to quash the subpoenas on the ground that they amounted to an 

unreasonable search and seizure in violation of the fourth amcndment. 26 The government responded by 

alleging that drug dealers in Kansas City were using Western Union to transmit money.27 

The S'h Circuit Court of Appeals noted that it had previously held that Western Union customers have no 

privacy interest in Western Union records.28 The Court cited the Supreme Court's holding in United 

States v. Miller, in which the Supreme Court determined, consistent with Smith v. Maryland, that bank 

customers do not enjoy a legitimate expectation of privacy in bank records subject to subpoena." 

The Court in In re Grand Jury specifically noted that the request at issue-namely, the production of 

records from Royalle Inn-was not as sweeping as subpoenas that the judiciary had found to be outside 

the bounds of acceptability. In Federal Trade Commission v. American Tobacco Co., for instance, the 

Supreme Court refused to uphold the FTC's direction to two tobacco companies to produce letters and 

eontracts. 30 The FTC had claimed "an unlimited right of access to the respondents' papers ... relevant or 

irrelevant, in the hope that something [would] turn up."31 The g'h circuit similarly declined to uphold a 

subpoena calling for an attorney's records over a ten-year period. 32 

The collection of all U.S. persons' telephony metadata is more properly considered in the same league as 

FTC v. American Tobacco Co. and Schwimmer v. United States, in which the Court recognized the 

overbroad use of government authority, as opposed to the more limited collection of information at issue 

in In Re Grand Jury Proceedings. 

23 In Re Grand Jury Proceedings: Subpoena Duces Tecum, 827 F.2d 301 (8th Cir. 1987). 24 !d. 

25 !d. 

26 !d. 

27 Id 

28 United States v. Gross, 416 F.2d 1205, 1213 (8" Cir.), cert. denied, 397 U.S. 1013, 90 S.Ct. 1245,25 L.Ed.2d 427 (1969); 

accord, Newfield v. Ryan, 91 F.2d 700,703 (5"' Cir.), certdenied, 302 U.S. 729,58 S.Ct. 54,82 L.Ed. 563 (1937). 29 United States v. Miller, 425 U.S. 435,440-443,96 S. Ct.1619, 48 L.Ed.2d 71 (1976). 3

° FTC v. American Tobacco Co., 264 U.S. 298, 305,44 S.Ct. 336, 337, 68 L.Ed. 696 (1924). 11 Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186,207 n. 40, 66 S.Ct. at 505 n. 40 (quoting FTC, 264 U.S. at 305, 44 

S.Ct. at 337). 32 Schwimmer v. United States, 232 F.2d 855, 861-62 (81

h Cir.), cert denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed. 2d 52 (1956). 

7 
248 

Three points help to further distinguish the bulk collection of telephony metadata from ordinary use of 

subpoenas duces tecum: they are not to be used for fishing expeditions, they arc specific, and they relate 

to past crimes. Remarkably, even FISC recognizes that the information collected as part of the bulk 

mctadata program under Section 215 could not otherwise be obtained-including via subpoena duces 

tecum. 

The government's contention, consistent with United States v. R. Enters, Inc., is that to fall outside the 

statutory confines, there must be no reasonable possibility that the category of materials sought under 

Section 215 will produce relevant information33 The government is correct that United States v. R. 

Enters, Inc. gave a fair amount of latitude to the standard of relevancy applied to grand jury subpoenas. 

But the case also established important limits. "Grand juries," the Court wrote, "are not licensed to 

engage in arbitrary fishing expeditions."34 

Subpoenas may not be used to try to obtain massive amounts of information whence evidence of 

wrongdoing-absent prior suspicion-can be derived. 35 A grand jury, for example, could not convene in 

Cedar Rapids, Iowa, and simply begin collecting telephony metadata, which it could subsequently mine to 

find evidence of criminal behavior. To the contrary, an investigator must have a reasonable suspicion that 

some document or communication exists, and that it is directly relevant to the investigation in question, in 

order for the Court to order its production. 

The courts have used this logic to quash a subpoena duces tecum requiring that computer hard drives and 

floppy disks be produced. The request was overbroad because the materials "contain[ ed] some data 

concededly irrelevant to the grand jury inquiry."36 In that case, the government acknowledged that 

irrelevant material was included in the sweep. 37 Judge Michael Mukasey quashed the subpoena on the 

grounds that the government could narrow the documents requested prior to acquisition. He also rejected 

the claim that a broad sweep of information was justified by the breadth of the investigation underway: 

even an "expanded investigation" did "not justify a subpoena which encompassed documents "completely 

irrelevant to its scope. "38 

33 See also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993). 34 United States v. R. Enterprises, Inc., 498 U.S. 29,2992 (1991). 

35 Id.. 36 In re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F. Supp. II, 12 (S.D.N.Y. 1994). 37 !d. at 13. 38 Id. (quotation marks omirted). See also Cessante v. City of Pontiac, No. C!V. A. 07-cv-15250, 2009 WL 973339, at *7 (E.D. 

Mich. Apr. 9, 2009) ("While some of the information sought may be relevant or lead to relevant information, the request for 

'anything and everything' is overly broad and not narrowly tailored to meet the relevancy requirements of Fed. R. Civ. P. 

26(b)."); Hale v. Henkel, 201 U.S. 43,76-77 (1906) (finding a "subpoena duces tecum ... far too sweeping in its terms to be 

regarded as reasonable" where it did not "require the production of a single contract, or of contracts with a particular corporation, 

or a limited number of documents, but all understandings, contracts, or correspondence between" a company and six others, over 

8 
249 

Almost none of the telephony metadata collected under Section 215 is related to criminal activity. In 

Judge Reggie Walton's words, "Ordinarily, this alone would provide sufficient grounds for a FISC judge 

to deny the application. 39 The principle at work here was recognized by the Eastern District of New 

York: "While the standard of relevancy [as applied to subpoenas] is a liberal one, it is not so liberal as to 

allow a party 'to roam in shadow zones of relevancy and to explore matter which does not presently 

appear germane on the theory that it might conceivably become so. "'40 A subpoena duces tecum may not 

be used to compel the production of records simply because at some point, in the future, they might 

become relevant. 

In a world limited by the physical manifestation of evidence, practicality helped to cabin the scope of 

subpoenas. Technology may have changed what is possible in terms of the volume and nature of records 

that can be obtained and stored, and the level of insight that can be gleaned. But it does not invalidate the 

underlying principle. Subpoenas, even those issued by grand juries, may not be used to engage in fishing 

expeditions. 

Grand jury investigations also are specific. That is, they represent investigations into particular 

individuals, or particular entities, in relation to which there is reasonable suspicion that some illegal 

behavior has occurred. The compelled production of records or items is thus limited by reference to the 

target of the investigation. 

If a grand jury were, for instance, focused on the potentially criminal acts of the head of a crime family in 

Des Moines, absent reasonable suspicion of some sort of connection to the syndicate, it would not issue a 

subpoena for the telephone records of the Parent-Teacher's Association at Clark Elementary School in 

Sioux City. 

In contrast, the Section 215 orders are broad and non-specific. That is, on the basis of no particular 

suspicion, all call records, the "vast majority" of which (according to FISC's own language) are of a 

purely local nature, arc swept up by the NSA41 

Grand jury investigations are also targeted at current and prior criminal activity. The telephony metadata 

orders, in contrast, are both past and forward-looking, in that they anticipate the possibility of illegal 

a multi-year period); Ealy v. Littlejohn, 569 F.2d 219, 227 (5'" Cir. 1978) ("When the grand jury goes on a fishing expedition in 

forbidden waters, the courts are not powerless to act.") Cases cited in Memorandum of Law in Support of Plaintiffs' Motion for 

a Preliminary Injunction, ACLU v. Clapper, 13 CV03994J 1-12. 39 In ReProduction of Tangible Things from [REDACTED], No. BR 08-13, Order at 9, 12 (FISA Ct.2009), available at 

http::'/wwv.' .dni. o-ov<files/documcnts 'sccti on/pub M archi)..·0202~,"0202009%200rder /020 f~om~'020FI SC :mlf 

"'In re Fontaine, 40Z F: Supp. l219, 122i (E.D.N.Y.i975) (quoti;;gl~Surety Ass'n -;,f Am., 38SF.2d 412,414 (2d Cir. 

1967)). 

41 In reApplication of the Federal Bureau of Investigation for an Order Requiring the production of Tangible Things, No. BR 06-

05. 

9 
250 

behavior in the future. Most of the individuals in the database are suspected of no wrongdoing 

whatsoever. Yet the minimization procedures allow for any information obtained from mining the data to 

then be used in criminal prosecution. This is an unprecedented use of subpoena information-gathering 

authority. It amounts to a permanent, ongoing grand jury investigation into all, possible, future criminal 

acts. 

Remarkably, FISC itself, despite the statutory language, has recognized that the information it obtains 

from the metadata program could not otherwise be collected with any other legal instrument-including a 

subpoena duces tecum. In a secret opinion issued in March 2009 Judge Reggie Walton wrote: 

Because the collection would result in NSA collecting call detail records pertaining to 

[REDACTED] of telephone communications, including call detail records pertaining to 

communications of United States (U.S.) persons located within the U.S. who are not the subject 

of any FBI investigation and whose metadata could not othenvise be legally captured in bulk, the 

government proposed stringent minimization procedures that strictly controlled the acquisition, 

accessing, dissemination, and retention of these records hy the NSA and FBI. 42 

Later in the document, he again noted that the information "otherwise could not be legally captured in 

bulk by the government". 43 This assertion directly contradicts the statutory requirement that the 

information could otherwise be obtained via subpoena duces tecum. It amounts to an admission, by the 

Court, that the program violated the statute. 

What makes the failure of the Court to prevent the illegal program from continuing even more concerning 

is Judge Walton's explanation of why, even though the information could not legally he obtained in any 

other way, FISC allowed the government to proceed. He continues, 

Nevertheless, the FISC has authorized the hulk collection of call detail records in this case based 

upon: (1) the government's explanation, under oath, of how the collection of and access to such 

data are necessary to analytical methods that are vital to the national security of the United States; 

and (2) minimization procedures that carefully restrict access to the BR metadata and includes 

specific oversight rcquirements.44 

In other words, FISC allowed an illegal program to operate because the government (1) promised that it 

was vital to U.S. national security, and (2) was directed by the court to police its own house by following 

42 ln reProduction of Tangible Things From [REDACTED}, Order, No. BR 08-13, at 2-3 (FISA Ct. Mar. 2, 2009), available at 

SPpj__(yvww .d!!ig_Q_\~.'t~J~~~~l:!!D~D~:~'>~_c!i.o_Q 1JJ!~_MP.L~h~~<!_.?_01Y219)D.Q9%W_Q___@~~~~Q[~_I_!~%2 Q_tl~( ._p_Qf. · !d. at 12. 

44 !d. 

10 
251 

the minimization procedures. The former is legally insufficient to justify violation of a Congressional 

statute. The latter highlights the extent to which FISC, precisely because of the size of the collection 

program in question, has become dependent on the NSA to conduct jts own oversight-thus abdicating its 

responsibilities to the Executive Branch.45 This further underscores the inapposite nature of the bulk 

collection program in light of the requirements of grand jury subpoenas, issued in the course of an 

investigation overseen by the judicial instruments of the state. 

45 !d. ('[I]n light of the scale of this bulk collection program, the Court must rely heavily on the government to monitor this 

program to ensure that it continues to be justified . .. and that it is being implemented in a manner that protects the privacy 

interests ofU.S. persons.") 

II 
252 

"Continued Oversight of the Foreign Intelligence Surveillance Act" Hearing 

Senator Franken Questions.Jqr the Record 

(1) Professor DONOHUE, in August the Office of the Director of National Intelligence 

announced that it would start annually disclosing to the public the number of orders issued 

under key surveillance authorities, as well as the number of quote, "targets" affected by 

these orders. Are these promised disclosures enough? Or are actual changes to the law 

necessary to achieve greater transparency? 

Response: 

While welcome, the voluntary disclosure of the number of orders issued under key surveillance 

authorities, as well as the number of "targets" affected by these orders, is far from adequate. The release 

of such numbers, as can be seen from the current statistical updates provided by the Department of 

Justice, may provide some information, but its value is limited. The specific type of information being 

volunteered, moreover, is dwarfed by the claim that all telephony metadata is relevant to terrorism 

investigations. Any one order can result in millions of pages of data being released to the National 

Security Agency ("NSA"), suggesting that over-reliance on the reporting of the number of orders issued 

can be misleading. Similarly, reporting the number of targets, while contributing some information, fails 

to deliver meaningful data on the extent to which surveillance authorities are being used. The voluntary 

provision of such data, in addition, would not be subject to judicial review and could be altered absent 

Congressional approval, making the offer insufficiently grounded in the law. Actual statutory changes 

that address the quantitative and qualitative nature of the surveillance programs underway are essential to 

achieving greater transparency. 

The Department of Justice ("DOl") currently provides Congress with statistical information on the 

number of applications to the Foreign Intelligence Surveillance Court ("FISC"). This information has 

value. The numbers reveal that over the first two and a half decades FISC approved nearly every 

application without any modification. 1 (Between 1979 and 2003, FISC denied only 3 out of 16,450 

applications.)' Looking more recently, since 2003, FISC has issued a ruling on 18,473 applications for 

electronic surveillance and/or physical search (2003-2008), and electronic surveillance (2009-2012). 

Only 11 applications have been denied in whole or part. (See Fig. I) This means that only 0.06 percent of 

all applications are denied in whole or part. Looking at this data, scholars have observed that the rate of 

1 See DAVIDS. KRISAND J. DOUGLAS WILSON, NATIONAL SECURITY INVESTIGATIONS & PROSECUTIONS ch. 12 (2d ed. 20!2), at 

469, Letter from Attorney General William French Smith to Director, Administrative Office of the U.S. Courts (Apr. 22, 1981, 

bi-otillblffut!MWdllw,,!J:ilEIOOs'tll!lJ'<jj!Clll!M!laj'ltRBIJRl8~ f\I>IJJ1l!irdetl!IDICrB£1lmtlillllll(iltllllil)Ddified or denied the 
253 

success enjoyed by the government in its applications to FISC is "unparalleled in any other American 

court."3 

Year 

FISC RULINGS ON ELECTRONIC SURVEILLANCE AND PHYSICAL SEARCH (2003-2008) 

AND ELECTRONIC SURVEILLANCE (2009- 2012)4 

# of Applications on #Approved #Modified #Denied in # Denied # w/drawn by Gov't 

which FISC ruled Part in Whole I prior to FISC ruling 

2003 1,727 1,724 79 0 3 0 

2004 1 756 1,756 94 0 0 3 -- I 2005' 2,072'" 2,072 61 0 0 2 

2006 11 2 176- 2,176 73 1 0 5 

2007" 2,37I 2,370 86 I 3" 0 

2008" 2,082 2,083 1 2 0 1 0 

2009 11 1,321" 1.320 14 I I 8 

20101 1,506" 1,506 14 0 0 5 

2011" 1,674"' 1,674 30 0 0 2 

3 Theodore W. Ruger, Chief Justice Rehnquist's Appointments to the F!SA Court: An Empirical Perspective, I 01 Nw. U. L. REV. 

239, 245 (2007). 4 Starting in 2009, the Department of Justice began providing the breakdown of the number approved, modified, denied in part, 

denied in whole, or withdrawn by the government prior to the FISC ruling only for those applications involving electronic 

communications. Prior to that time, these numbers were combined. 5 Letter from William E. Moschella, Assistant Attorney Gen., to Mr. L. Ralph Mecham, Dir., Admin. Office of the U.S. Courts 

(Apr. 30, 2004), available at https://www.fas.org/irp/agency/doj/fisa/2003rept.pdf. 6 An addition application was initially denied but later approved. /d 7 Letter from Office of Legislative Affairs, U.S. Department of Justice, to The Honorable J. Dennis Hastert, Speaker, U.S. House 

of Representatives, (Apr. t, 2005), available at https://\-V\\w.fas.orglirp/agency/doj/fisa/2004rept.pdf. 8 1758 submitted, 3 of which were withdrawn prior to FISC ruling and 1 of which was resubmitted. !d. 9 Letter from William E. Moschella, Assistant Attorney Gen., Office of Legislative Affairs, U.S. Department of Justice, to The 

Honorable J. Dennis Hastert, Speaker, U.S. House of Representatives (Apr. 28, 2006), available at 

https://www.fas.org/irp/agency/doj/tisal2005rept.html. 

10 2,074 submitted, 2 of which were withdrawn prior to FISC ruling, and I of which was resubmitted. !d. 11 Letter from Richard A. Bertling, Acting Assistant Attorney Gen., to the Honorable Nancy Pelosi, Speaker, U.S. House of 

Representatives (Apr. 27, 2007), available at https://www.fas.org/irp/agency/doj!fisa/2006rept.pdf. 12 2,181 submitted, 5 of which were withdrawn prior to FISC ruling. /d. 13 Letter from Brian A. Benczkowski, Principal Deputy Assistant Attorney Gen., Office of Legislative Affairs, U.S. Department 

of Justice, to the Honorable Nancy Pelosi, Speaker, U.S. House of Representatives (Apr. 30, 2008), available at 

https://www.fas.org/irp/agency/dojlfisa/2007rept.pdf. 

14 Discrepancy in the numbers stems in part from holdover applications and denials. Two applications, for instance, filed in CY 

2006 were not approved until 2007. !d. 15 Letter from Ronald Weich, Assistant Attorney Gen., Office of Legislative Affairs, U.S. Department of Justice, to the 

Honorable Harry Reid, Majority Leader, U.S. Senate (May 14, 2009) available at 

https://www.fas.org/irp/agcncy/doj/fisa/2008rept.pdf. 

16 Discrepancy in the numbers stems in part from holdover applications and denials. Two applications filed in CY 2007 were not 

approved until CY 2008). 1

' Letter from Ronald Weich, Assistant Attorney Gen., Office of Legislative Affairs, U.S. Department of Justice, to The 

Honorable 1 oseph R. Biden, Jr., President, U.S. Senate (Apr. 30, 20 l 0), available at 

https://www.fas.orglirp/agcncy/doj/fisal2009rept.pdf. 

18 For the first time since 2003, no numbers are available for modifications/denials for the full number of applications submitted 

(physical search, electronic surveillance, and combined applications). Instead, the report notes that of the 1,376 in total submitted 

in the former three categories, I ,329 were related to electronic sun'eillance. It was eight of these applications that were 

withdrawn, 1 denied in whole, 1 denied in part, and 14 modifications, with 1,320 approved. The number of applications is thus 

missing the numbers for physical search and physical search combined applications. !d. 19 Letter from Ronald Weich, Assistant Attorney Gen., Office of Legislative Affairs, U.S. Department of Justice, to the 

Honorable Harry Reid, Majority Leader, U.S. Senate, (Apr. 29, 2011), available at 

https:/ /www .fas.org/irp/agcncy/doj/fisa/20 I Orept.pdf. 20 Total number of electronic surveillance, physical search, and combined applications was 1,579. The report, however, isolates 

the electronic applications (1,511 ), and provides breakdowns for modifications, denials, etc., for just that category. Of the total of 

I ,511, five were withdrawn by the Government prior to FISC ruling. /d. 

2 
254 

8 26 

Figure I 

Statistics provided by DOJ similarly demonstrate significant deference extended by FISC to the 

government with regard to applications under Section 215. From the numbers provided publicly to 

Congress, it appears that FISC has never denied an application for an order under this section. That is, of 

751 applications since 2005, all 751 have been granted. (See Fig. 2) 

ORDERS FOR THE PRODUCTION OF TANGIBLE GOODS 

Year Number of Applications to FISC under 50 U.S.C. §1862(c)(2) Number of Applications Granted 

b ·FISC 

2005' 155 155 

2006' 43 43 

20072

' 6 6 

2008' 13 13 

2009'" 21 21 

2010• 96 96 

20JI·" 205 205 

2012- 212 212 

Totals 751 751 

These numbers illustrate both the advantage of reporting requirements and the limited value of snch 

information. Critics of the FISC process, for instance, point to the numbers as evidence of the risk of 

capture presented by in camera, ex parte proceedings. Court supporters, in tum, note that a number of the 

21 Letter from Ronald Weich, Assistant Attorney Gen., to The Honorable Joseph R. Biden, Jr., President, U.S. Senate (Apr. 30, 

2012),, available at https://www.fas.org/irp/agency/doj/fisa/2011rcpt.pdf. 22 Note that there were 1, 745 total applications that included electronic surveillance and! or physical searches for foreign 

intelligence purpose. It appears that approximately 70 of the orders related solely to physical search, since the breakdown for 

electronic surveillance is only done for the 1,674. Two of the initial orders were withdrawn prior to FISC ruling. /d. 23 Letter from Peter J. Kadzik, Principal Deputy Assistant Attorney Gen., to the Honorable Harry Reid, Majority Leader, U.S. 

Senate (Apr. 30, 2013 ), available at https://www.fas.org/irp/agency/doj/fisa/2012rept.pdf. 24 The government made a total of 1,856 applications for electronic surveillance and! or physical searches; of those, 1,789 

included requests for electronic surveillance. Of those, one was withdrawn by the Government prior to FISC ruling. !d. 25 Letter from William E. Moschella, Assistant Attorney Gen., to the Honorable Richard B. Cheney, President, United States 

Senate (Apr. 28, 2006), available at http://www.justice.gov/nsd!foia!foia_library/2005fisa-ltr.pdt: 16 Letter from Richard A. Bertling, Acting Assistant Attorney Gen., to the Honorable Richard B. Cheney, President, United 

States Senate (Apr. 27, 2007), available at http://www.justice.gov/nsd/foia/foia_library/2006fisa-ltr.pdf. 27 Letter from Brian A. Benezkowski, Principal Deputy Assistant Attorney Gen., to the Honorable Richard B. Cheney (Apr. 30, 

2008), available at http://www.justice.gov/nsd/foia!foia_library/2007fisa-ltr.pdf. 28 Letter from Ronald Weich, Assistant Attorney Gen.!, to the Honorable Joseph R. Eiden, Jr., President, United States Senate 

(May 14, 2009), available at http://www.justice.gov/nsd/foia/foia_library/2008fisa-ltr.pdf. 29 Letter from Ronald Weich, Assistant Attorney Gen., to the Honorable Joseph R. Biden, Jr., President, United States Senate 

(Apr. 30, 201 0), available at http://wY.'W.justice.gov/nsdlfoia/foia_library/2009fisa-ltr.pdf. 30 Letter from Ronald Weich, Assistant Attorney Gen., Department of Justice, to the Honorable Joseph R. Biden, Jr., President, 

U.S. Senate( Apr. 29, 2011), available at http:i/www.justice.gov/nsd!foia/foia_library/20l0fisa-ltr.pdf. 31 Letter from Ronald Weich, Assistant Attorney Gen., Department of Justice, to the Honorable Joseph R. Biden, Jr., President, 

U.S. Senate (Apr. 30, 2012). available at http://www.justice.gov/nsdlfoia/foia library/20llfisa-ltr.pdf. 32 Letter from Peter J. Kadzik, Principal Deputy Assistant Attorney Gen,, Dep;rtment of Justice,, to the Honorable Joseph R. 

Biden, Jr., President, U.S. Senate(Apr. 30, 2013), available at http://www.justice.gov/nsd/foia/fola _library/2012fisa-ltr.pdf. 

3 
255 

applications for electronic surveillance or physical search are either modified or withdrawn by the 

government prior to FISC ruling, suggesting the presence of an informal process whereby FISC provides 

a check on the Executive. Critics counter by, again, appealing to the numbers. Looking at electronic 

surveillance and physical search applications, 493 modifications over the past decade still only comes to 

2.6% of the total number of applications. (See Fig. 1). The numbers further show that only 26 

applications have been withdrawn by the government prior to FISC ruling-approximately one tenth of 

one percent of all applications to the Court. (See Fig. 1). 

In other words, the numbers raise concern about the role performed by FISC and indicate the presence of 

some informal process whereby FISC appears to be influencing the contours of applications. They also 

raise question about the extent of this informal process itself. But without further qualitative information 

and contextual data, it is extremely difficult to evaluate the information. 

The release of statistical information regarding the number of orders approved by FISC would suffer from 

a similar lack of contextual infonnation and raise concern about the extent to which such information 

might be misleading. The government argues that all telephony metadata is relevant to terrorism 

investigations. It also argues that Section 215 orders can be used to obtain massive amounts of data. This 

means that any one order can require telephone service providers to turn over millions of pages of data. 

Thus, while it would provide more information than is currently conveyed with regard to the number of 

applications to FISC under 50 U.S.C. §1862(c)(2), provision of this information would still fail to deliver 

meaningful data on the extent of surveillance programs underway. 

Similarly, the provision of the number of individuals targeted by the government would generate more, 

but still insufficient information. In the process of targeting specific groups or individuals, the 

government claims the concurrent authority to draw in wide swathes of U.S. persons' information. So 

what may appear to be a limited number of targets may, in fact, be masking significant surveillance 

programs. 

As a final note of caution, the voluntary provision of such data would be merely a policy adopted by the 

Executive Branch. Rcsultantly, it would not be subject to judicial review and it could be altered without 

any action from-or even notice to-Congress. It is thus an extremely weak way to ensure greater 

transparency within the Executive Branch. Actual statutory changes that require DOJ to convey both the 

quantitative and the qualitative nature of the surveillance programs underway are essential for achieving 

greater transparency. 

4 
256 

Responses to Questions for the Record 

Submitted October 29, 2013 

Edward W. Felten 

Professor of Computer Science and Public Affairs, Princeton University 

United States Senate, Committee on the Judiciary 

Hearing on 

Continued Oversight of the Foreign Intelligence Surveillance Act 

October 2, 2013 

I thank the Committee for the opportunity to respond to these Questions tor the Record. 

Senator Klobuchar's Question 

I am very interested in your recommendation that the FISC should have greater in-house 

technological expertise to assess the government's bulk collection and surveillance requests. 

I'd like to ask you to flesh this out a bit more. 

How would you recommend working technology experts into the current FISC process? 

Response to Senator Klobuchar's Question 

In the current FISC process, the government is the only party that files papers and argues 

before the Court. The most natural way to add independent technical expertise would be for 

the expert to assist the Court. The Court might follow the practice of some ordinary District 

Courts by retaining a Court-appointed expert, or by appointing a special master who has 

technical expertise. 

If the FISC process is changed to add another party empowered to participate in FISC 

matters, such as a representative of the public or an advocate for civil liberties, then this party 

could retain technical experts to assist it in its argument. This expert assistance is important in 

allowing the independent party to do its job, because the government's argument before the 

FISC is well-supported by technical experts, and technical claims often play an important role 

in the government's argument. 

If the process is indeed changed to add an independent party, it is important for this party to 

be able to challenge the government's technical claims. In an ordinary court case, this would 

occur via discovery, including expert reports, depositions, and cross-examination of experts. 

Although this full process might not be appropriate for FISC matters, it is important to ensure 

that the independent party is in a position to get the information it needs to evaluate and 

challenge technical assertions made by the government. 
257 

Finally, the sensitivity of information before the FISC will require that technical experts have 

the necessary security clearances. Some independent experts already have clearances, but 

there are relatively few such people who are not already working for or with intelligence 

agencies. Steps should be taken to make sure that clearance requests can be expedited for 

technical experts whom the FISC or an independent party want to engage. 

Senator Franken's Question 

(1) Professor Felten, in your written testimony you stated that "metadata is easy to 

analyze." 

(a) Do you think the intelligence community has the technical ability to give a rough 

estimate of the number of American citizens and permanent residents whose 

communications metadata has been collected in their surveillance programs? 

(b) Do you think that the intelligence community has the technical ability to give a rough 

estimate of the number of American citizens and permanent residents whose 

communications content has been collected in their surveillance programs? 

Response to Senator Franken's Question 

Yes, the government has the ability to give a rough estimate of the number of American 

citizens and permanent residents whose (a) metadata and (b) content has been collected. 

(a) The intelligence community can give a rough estimate of the number of citizens and 

permanent residence whose communications metadata has been collected. There are several 

reasonable methods for doing this. Each method gives an estimate that is not exact but is of 

roughly the correct magnitude. 

A first method is to determine the number of U.S. phone numbers that appear in collected 

metadata records, and then use this information to estimate the number of affected persons. 

U.S. phone numbers are easily distinguished from non-U.S. numbers by examining the 

country code and/ or area code of the number. Once the number of affected phone numbers 

is known, this can be used to estimate the number of citizens and permanent residents by 

making two adjustments, the first to account for the possibility of one person using multiple 

affected phone numbers, and the second to account for the fact that a small percentage of 

U.S. phone numbers are owned by people who are neither citizens nor permanent residents. 

A second method is to determine the number of distinct customers of each mobile phone 

carrier whose information is captured. On the assumption that few people have mobile 

accounts with multiple mobile carriers, this could be used to estimate the total number of 

affected persons, again correcting for the fact that a small percentage of accounts are owned 
258 

by people who are neither citizens nor permanent residents. 

A third method, which appears to offer good accuracy if news reports are accurate, is simply 

to assume that every adult citizen or permanent resident has been on at least one end of a call 

whose metadata was captured, and therefore to use an estimate equal to the number of adult 

citizens plus permanent residents. 

(b) It is a bit more challenging, but still feasible, for the intelligence community to give a 

rough estimate of the number of citizens and permanent residents whose communications 

content has been collected. 

It is very likely that in all or almost all cases where call content is collected, the metadata 

about that same call is also collected. If so, then all that remains is to asssemble a database of 

metadata for calls whose content has been captured, and then to use this metadata to 

estimate the number of affected citizens and permanent residents. This could be done, for 

example, by using the first method described above in part (a). 

Even if, for some reason, content collection is not accompanied by metadata collection for the 

same calls, it would be feasible to estimate the number of affected citizens and U.S. persons, 

using the existing meta data. 

This is not meant as an exhaustive list of methods, and there are probably better and more 

accurate methods than the ones I have described here. The intelligence community employs 

a great many mathematicians, statisticians, and computer scientists, and prides itself on its 

ability to extract useful information from large data sets. Surely they are able to provide at 

least rough estimates of how many Americans are affected by their data collection. 
259 

The Honorable Patrick Leahy 

Chairman 

Committee on the Judiciary 

United States Senate 

The Honorable Bob Goodlatte 

Chairman 

Committee on the Judiciary 

United States House of Representatives 

The Honorable Charles Grassley 

Ranking Member 

Committee on the Judiciary 

United States Senate 

The Honorable John Conyers, Jr. 

Ranking Member 

Committee on the Judiciary 

United States House of Representatives 

September 30, 2013 

We the undersigned are writing to ask that the Senate and House Judiciary Committees quickly move 

forward to consider legislation that would provide greater transparency around national security-related 

requests by the US government to Internet, telephone, and web-based service providers for information 

about their users and subscribers. 

Specifically, we write to voice our strong support for S. 1452, the Surveillance Transparency Act of2013, 

and H.R. 3035, the Surveillance Order Reporting Act of2013, each of which would clarify that companies 

have the right to publish basic statistics about the government demands for user data that they receive. We 

urge the Committees to hold hearings on the issue of surveillance transparency as a prelude to the markup 

of these bills. 

Many of the undersigned organizations and companies previously wrote a letter to you and other leaders in 

Congress and the Administration on July 18th, 1 asking for legislation that would require more 

comprehensive transparency reporting by the government and allow for more comprehensive transparency 

reporting by US companies that receive national security-related infonnation requests. We are thankful 

that Senator Franken, working with eleven cosponsors including Chairman Leahy, and Representative 

Lofgren, as part of a bipartisan coalition of nine cosponsors including Ranking Member Conyers and 

Representatives Poe and Chaffetz, were able to so quickly respond to the pressing need for more 

transparency around the US government's national security surveillance efforts. Such transparency is 

important not only for the American people, who arc entitled to have an infonned public debate about the 

appropriateness of that surveillance, but also for international users of US-based service providers who are 

concerned about privacy and security. 

We very much look forward to working with the sponsors ofS. 1452 and H.R. 3035 to ensure that the goals 

of those pieces of legislation, and the goals stated in our previous letter, are fully aligned. For example, the 

Senate bill provides for significant public reporting by the government itself; as requested in our previous 

letter, and we would welcome the addition of such provisions to the House bill. Similarly, as we had 

previously requested, the House bill provides for reporting by companies on their receipt of National 

Security Letters (NSLs) as well as requests under the Foreign Intelligence Surveillance Act (FISA), and we 

would strongly support inclusion of a similar provision regarding NSLs in the Senate bill, consistent with 

Chainnan Leahy's longstanding and much appreciated support for NSL refonn. 

In conclusion, we are eager to assist your Committees in taking prompt action around these critically 

important bills, and to share our views as other bills are introduced or move through the Committees. We 

look forward to working together to achieve passage of legislation that will ensure the level of transparency 

necessary to appropriately inform the American public and preserve the trust of Internet users around the 

world. 

1 A copy of that letter, updated to reflect additional companies and organizations that have joined the coalition effort 

since it was first sent, is attached. 
260 

Thank you. 

Companies & Investors 

AOL 

Apple Inc. 

Automattic Inc. (WordPress.com) 

Boston Common Asset Management 

CloudFiare 

CREDO Mobile 

Data Foundry, Inc. 

Domini Social Investments LLC 

DreamHost 

Drop box 

DuckDuckGo 

Face book 

Floor64 

Foursquare 

Golden Frog 

Google 

Linkedln 

Meetup 

Microsoft 

Mozilla 

Reddit 

Personal Democracy Media 

SpiderOak 

Tumblr 

Twilio 

Twitter 

Union Square Ventures 

Yahoo 

Nonprofit Organizations & Trade Organizations 

Access 

AIDS Policy Project 

American Booksellers Foundation for Free Expression 

American Civil Liberties Union 

American Library Association 

American Society of News Editors 

Association of Research Libraries 

Brennan Center for Justice at NYU Law School 

BSA I The Software Alliance 

Competitive Enterprise Institute 

Computer & Communications Industry Association 

The Constitution Project 

Consumer Action 

Defending Dissent Foundation 

Demand Progress 

Digital Liberty Project at Americans for Tax Reform 

DownsizeDC.org 

Electronic Frontier Foundation 

Engine Advocacy 

First Amendment Coalition 

Foundation for Innovation and Internet Freedom 

Freedom House 

Freedom of the Press Foundation 

Freedom to Read Foundation 

Global Network Initiative 

Information Technology and Innovation Foundation 

The Internet Association 

Internet Infrastructure Coalition 

Jewish Voice for Peace 

Montgomery County Civil Rights Coalition 

National Coalition Against Censorship 

NetChoice 

New America Foundation's Open Technology Institute 

New York Tech Meetup 

OpenTheGovernment.org 

Project On Government Oversight 

Public Citizen 

Public Knowledge 

Reporters without Borders 

Reporters Committee for Freedom of the Press 

Software & Inforn1ation Industry Association 

TechFreedom 

TecbNet 

WITNESS 

2 
261 

"Continued Oversight of the Foreign Intelligence Surveillance Act" Hearing 

October 2"d, 2013 

Dear Senators Leahy and Grassley: 

Thank you for holding the hearing on October 2 regarding oversight of the Foreign Intelligence 

Surveillance Act (FISA) in light of the disclosures about NSA surveillance and collection of 

metadata that includes massive amounts of data about American citizens. 

The main thing I want to correct is what Senator Feinstein said about the pre 9-11 warning from 

Director of Central Intelligence George Tenet, Feinstein's referring to the case of the (arrested) 

"terrorist who wanted to learn to fly without taking off or landing," the problem of "stovepiping" 

of intelligence that kept agencies from learning that AI Qaeda terrorist A1 Midhar had entered 

California and her conclusion that if more metadata had been collected prior to 9-11, the attacks 

could have been prevented. With all due respect, Senator Feinstein has it completely wrong! 

With her factually inaccurate version of pre 9-11 failures, her point was to insist that there be no 

significant rolling back ofthe NSA's post 9-11 massive metadata and FISA surveillance 

programs. But her account is wrong and the truth is that this massive government surveillance is 

making things worse and even harder for analysts and agents trying to find the needle in the 

haystack by adding more hay. Agents and analysts are reported to call the non-relevant data 

collection "white noise" or false leads, etc. 

I would be happy to provide more detail but in a nutshell, the main finding of the 9-11 

Commission, based upon the earlier findings of the Joint Intelligence Committee's Inquiry (JICI) 

which Senator Feinstein was a part of and to whom I actually addressed my "whistleblower 

memo" ofMay 21,2002 about the FBI's pre 9-11 failures (and also based upon the Senate 

Judiciary Committee's investigation which Senators Leahy and Grassley led in the springsummer of 2002; and the lengthy Department of Justice's Inspector General Investigation of 

these failures) was that the failure to share information within agencies, between agencies and 

with the public was a major problem that enabled the AI Qaeda terrorist attacks to occur. Many 

examples of these failures to share information (including "stove piping") were documented, 

including the Moussaoui case in Minnesota and the case of the TWO (not one) Qaeda suspects 

AI Midhar AND AI Hazmi who the CIA had long been following since their AI Qaeda-related 

meeting monitored by the CIA in Kuala Lumpur. The CIA learned of Hazmi and Midhar's entry 

into California but failed to notify the FBI in a timely manner, not until a few weeks before 9-11. 

As you will recall Moussaoui later convicted of conspiring with the 9-11 hijackers, was arrested 

in Minnesota on August 16, 2001, suspected of terrorism connected to Bin Laden and thereafter 

the FBI Headquarters supervisors failed to share this info with the proper DOJ Office to seek a 

FISA Order for searching of Moussaoui's belongings despite 60 to 70 detailed requests via 

telephone, email and written draft declaration such that the FBI case agent later testified at 

Moussaoui's trial, that this FBIHQ "stovepiping" (or maybe the more accurate term would be 

"stonewalling") constituted "criminal negligence." 
262 

Æ