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EXAMINING RECOMMENDATIONS TO REFORM 

FISA AUTHORITIES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

FEBRUARY 4, 2014 

Serial No. 113–62 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 
(III) 

C O N T E N T S 

FEBRUARY 4, 2014 

Page 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 4 

WITNESSES 

The Honorable James Cole, United States Department of Justice 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 10 

Peter P. Swire, Review Group on Intelligence and Communications Technology 

Oral Testimony ..................................................................................................... 17 

Prepared Statement ............................................................................................. 19 

David Medine, Privacy and Civil Liberties Oversight Board 

Oral Testimony ..................................................................................................... 49 

Prepared Statement ............................................................................................. 51 

Steven G. Bradbury, Dechert, LLP 

Oral Testimony ..................................................................................................... 121 

Prepared Statement ............................................................................................. 124 

David Cole, Georgetown University Law Center 

Oral Testimony ..................................................................................................... 145 

Prepared Statement ............................................................................................. 147 

Dean C. Garfield, Information Technology Industry Council 

Oral Testimony ..................................................................................................... 158 

Prepared Statement ............................................................................................. 160 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the 

Judiciary ............................................................................................................... 184 

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Report from the Privacy and Civil Liberties Oversight Board, January 23, 2014, submitted by the Honorable Jerrold Nadler, a Representative in Congress from the 

State of New York, and Member, Committee on the Judiciary. This report is available at the Committee and can also be accessed at: 

http://www.pclob.gov/SiteAssets/Pages/default/PCLOB-Report-on-the-TelephoneRecords-Program.pdf 

(1) 

EXAMINING RECOMMENDATIONS TO REFORM 

FISA AUTHORITIES 

TUESDAY, FEBRUARY 4, 2014 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 10:14 a.m., in room 

2141, Rayburn House Office Building, the Honorable Bob Goodlatte 

(Chairman of the Committee) presiding. 

Present: Representatives Goodlatte, Sensenbrenner, Coble, Smith 

of Texas, Chabot, Bachus, Issa, Forbes, King, Franks, Gohmert, 

Jordan, Poe, Chaffetz, Gowdy, Labrador, Farenthold, Holding, Collins, DeSantis, Smith of Missouri, Conyers, Nadler, Scott, Lofgren, 

Jackson Lee, Cohen, Johnson, Chu, Deutch, DelBene, Garcia, 

Jeffries, and Cicilline. 

Staff Present: (Majority) Shelley Husband, Chief of Staff and 

General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief 

Counsel; Allison Halataei, Parliamentarian & General Counsel; 

Caroline Lynch, Counsel; Sam Ramer, Counsel; Kelsey Deterding, 

Clerk; (Minority) Perry Apelbaum, Minority Staff Director & Chief 

Counsel; Danielle Brown, Parliamentarian; and Aaron Hiller, 

Counsel. 

Mr. GOODLATTE. Good morning. The Judiciary Committee will 

come to order. And without objection, the Chair is authorized to declare recesses of the Committee at any time. 

Before we begin today’s hearing, I would like to take a moment 

to welcome the newest Member of the House Judiciary Committee, 

David Cicilline of Rhode Island’s First Congressional District. 

Born in Providence, Congressman Cicilline moved to Washington, 

D.C., shortly after law school to work as a public defender before 

returning to Rhode Island. In 1994, he was elected to the Rhode 

Island State legislature and ultimately elected Mayor of Providence 

in 2002 and again in 2006. 

He was elected to the U.S. House of Representatives in 2010 and 

is also a Member of the House Committee on Foreign Affairs. And 

we welcome you to the Judiciary Committee. [Applause.] 

Mr. CONYERS. Mr. Chairman? 

Mr. GOODLATTE. And I would like to recognize the Ranking Member for any comments that he would like to make. 

Mr. CONYERS. Thank you. 

On behalf of all of us on this side of the aisle, we join Chairman 

Goodlatte in welcoming our newest Member to the Committee, 
2 

Congressman David Cicilline, First District, Rhode Island. A 

Mayor, a public defender, practiced law in Rhode Island, and I am 

confident that his depth of experience will be a great asset to this 

Committee. 

Mr. Cicilline, we welcome you and look forward to working with 

you. [Applause.] 

Thank you. 

Mr. GOODLATTE. And we welcome everyone to this afternoon’s 

hearing on Examining Recommendations to Reform FISA Authorities, and I will begin by recognizing myself for an opening statement. 

Today’s hearing will examine the various recommendations to reform programs operated under the Foreign Intelligence Surveillance Act, or FISA. Last summer’s unauthorized public release of 

these classified programs has sparked a national debate about the 

extent of these programs and whether they pose a threat to Americans’ civil liberties and privacy. 

There have been myriad proposals to reform or end these programs. We are here today to vet these proposals and discuss their 

impact on America’s national security and their value in enhancing 

civil liberty protections. 

Following last year’s leaks, Obama administration officials appeared before this and other Committees in Congress to defend 

these programs and urge Congress not to shut them down, including the bulk metadata collection program operated under Section 

215 of the PATRIOT Act. But just 2 weeks ago, President Obama 

announced that he supports ‘‘a transition that will end Section 215 

bulk metadata program as it currently exists and establish a mechanism that preserves the capabilities we need without the Government holding this bulk metadata.’’ 

I am glad the President has finally acknowledged what I and 

many others concluded long ago, namely that the Section 215 bulk 

metadata program is in need of significant reform in order to restore the trust of the American people and to protect Americans’ 

civil liberties. But I am disappointed that the President was unable 

or unwilling to clearly articulate to Congress and the American 

people the value of this information in thwarting terror plots. 

Instead, he simply declared that it is ‘‘important that the capability that this program is designed to meet is preserved,’’ while simultaneously announcing that he was ending the program as it 

currently exists. 

The 5-year storage of bulk metadata by the NSA is arguably the 

most critical and the most controversial aspect of the Section 215 

program. But transferring storage to private companies could raise 

more privacy concerns than it solves. 

We need to look no further than last month’s Target breach or 

last week’s Yahoo breach to know that private information held by 

private companies is susceptible to cyber attacks. And transferring 

storage to private companies would require the Government to request data from multiple companies to connect the dots it currently 

stores, thereby complicating its ability to quickly and efficiently 

compile valuable intelligence. 

Of equal importance is the impact such a storage mandate would 

have on the ability of American companies to compete in a global 
3 

market. American technology companies are experiencing a lack of 

customer trust and a loss of international business as a result of 

the Snowden leaks, based upon the fear that information about 

their customers is readily and routinely turned over to the American Government. 

I suspect requiring these companies to now house the data specifically so the Government can access it will only reinforce those 

fears. American companies, in fact, have sought permission to publicly report national security requests from the Government to inform and, hopefully, assuage the concerns of their American and 

foreign customers. 

To that end, I am pleased the Justice Department worked jointly 

with American companies to identify information that can be publicly reported about the size and scope of national security requests. This is one step that will help provide greater transparency 

to the American people about the nature of our intelligence gathering programs. 

On January 17th, President Obama also announced his desire to 

transfer the query approval of metadata from the NSA to the FISA 

court. I am interested to hear from today’s witnesses whether such 

a reform will, in fact, result in greater privacy protections without 

weakening national security. 

President Obama also endorsed additional privacy protections for 

foreigners overseas. He instructed the Attorney General and Director of National Intelligence to take the unprecedented step of extending certain protections that we have for the American people 

to people overseas. Specifically, President Obama called for limiting 

the duration that personal information about foreign nationals is 

stored while also restricting the use of this information. Is it wise 

to restrain our national security agencies by extending to foreigners the rights and privileges afforded Americans? 

In addition to President Obama’s proposed reforms, two panels, 

the President’s Review Group on Intelligence and Communications 

Technology and the Privacy and Civil Liberties Oversight Board, 

have issued reports with their own proposals and conflicting legal 

analysis. On December 12th, the review group issued its report. 

While the review group questioned the value of the bulk collection of telephone metadata by the Government, the review group 

did conclude that the program is constitutional, legal, and has not 

been abused and recommended the program continue with thirdparty or company storage. 

A majority of the PCLOB, however, issued a report on January 

23 that questioned whether the program is constitutional and concluded operated illegally under the statute since 2006. And recommended the metadata program end entirely. 

I look forward to a discussion today of the constitutional and 

statutory analysis and recommendations of these two panels. The 

House Judiciary Committee has primary jurisdiction over the legal 

framework of these programs and has conducted aggressive oversight on this issue. 

Any reforms Congress enacts must ensure our Nation’s intelligence collection programs effectively protect our national security 

and include real protections for Americans’ civil liberties, robust 

oversight, and additional transparency. 
4 

It is now my pleasure to recognize the Ranking Member of the 

Committee, the gentleman from Michigan, Mr. Conyers, for his 

opening statement. 

Mr. CONYERS. Thank you. 

I welcome the witnesses today, the Deputy Attorney General in 

the first panel, and the witnesses coming up in the second panel. 

Now the 9/11 Commission, observing that Congress had ‘‘vested 

substantial new powers in the investigative agencies of the Government’’ with the passage of the PATRIOT Act, argued that it would 

be healthy for the country to engage in full and informed debate 

on these new authorities. 

The commission concluded that when that debate eventually 

takes place, the burden of proof for retaining a particular Government power should be on the executive to explain that the power 

actually and materially enhances security. Today, we are now engaged in that debate. 

For the first time, the public understands that our Government 

is engaged in widespread domestic surveillance. This surveillance 

includes, but isn’t limited to, the Government’s collection of records 

on virtually every phone call placed in the United States under 

Section 215 of the PATRIOT Act. 

Consensus is growing that this telephone metadata program is 

largely ineffective, inconsistent with our national values, and inconsistent with the statute as this Committee wrote it. As the 9/ 

11 Commission proposed, the burden rests with the Government to 

convince us otherwise. 

Reasonable people can disagree with me about whether or not 

the Government has met that burden, but there are several points 

to guide us in this debate that I believe are incontrovertible. First, 

the status quo is unacceptable. President Obama, his own Review 

Group on Intelligence and Communication Technology, and the Privacy and Civil Liberties Oversight Board all agree that the telephone metadata program, as currently exists, must end. 

The review group had full access to the leadership of the intelligence community. It concluded that there has been no instance in 

which the National Security Agency could say with confidence that 

the outcome of a case would have been different without the Section 215 metadata program. 

The Privacy and Civil Liberties Oversight Board came to the 

same conclusion and also observed that the operation of the bulk 

telephone record program bears almost no resemblance to the actual text of the statute. 

In his remarks at the Department of Justice, President Obama 

observed that because expanding technological capabilities place 

fewer and fewer technical restraints on what we can do, we have 

a special obligation to ask tough questions about what we should 

do. The President ordered immediate changes to the telephone 

metadata program and asked the Attorney General and the Director of National Security to develop options for a new approach that 

takes these records out of Government hands. 

I commend President Obama for his willingness to make these 

necessary changes. It cannot be easy for a sitting President to restrain his own intelligence capabilities, even if it is the right thing 

to do. After all, in the President’s own words, there is an inevitable 
5 

bias within the intelligence community to collect more information 

about the world, not less. 

My second point is that the Administration cannot solve this 

problem without Congress. The House Judiciary Committee must 

act. We are the primary Committee of jurisdiction in the House for 

the Foreign Intelligence Surveillance Act, the exclusive means by 

which the Government may conduct domestic surveillance. 

We are the proper forum for a debate about constitutional rights 

and civil liberties. More acutely, the Government is dependent on 

this Committee to renew the legal authorities now under review. 

Section 215 is scheduled to sunset on June 1, 2015. If it expires, 

all Section 215 programs, not merely bulk collection, expire with it. 

We should address bulk collection today, or we risk losing all of 

Section 215 this time next year. Unless this Committee acts and 

acts soon, I fear we will lose valuable counterterrorism tools, along 

with the surveillance programs many of us find objectionable. 

And finally, as this Committee moves forward, H.R. 3361, the 

USA FREEDOM Act, represents a reasonable consensus view and 

remains the right vehicle for reform. I am struck by the growing 

partisan—bipartisan consensus here. More and more of us seem to 

agree that the Congress should end bulk collection under Section 

215 but allow the FBI’s continued use of normal business records 

orders on a case-by-case basis. 

We should retain the basic structure of Section 702 of the Foreign Intelligence Surveillance Act but enact additional protections 

for United States persons whose communications are intercepted 

without a warrant. We should create an opportunity for an independent advocate to represent privacy and civil liberties interests 

before the FISA court. 

And in the service of meaningful public debate, we should declassify significant opinions of the FISA court, enhance reporting to the 

Congress, and allow companies to disclose more about their cooperation with the Government. 

These reforms are consistent with the President’s remarks, the 

recommendations of the review group, and the report of the Privacy 

and Civil Liberties Oversight Board. They are also, point for point, 

the main objectives of the measure called the USA FREEDOM Act. 

Our colleague and former Chairman of this Committee, Mr. Sensenbrenner, is credited as the original author of the PATRIOT Act, 

is our lead on this bill in the House. Senator Leahy has introduced 

an identical measure in the Senate. 

The USA FREEDOM Act enjoys the support of 130 Members in 

the House, evenly divided between Democrats and Republicans. 

More than half of this Committee now supports the bill, and our 

numbers grow every week. 

And so, Mr. Chairman, I urge that you bring this bill up for consideration before the House Judiciary Committee as soon as possible because our mandate is clear. We have heard from the President, from his panel of experts, and from an independent oversight 

board. We will examine their proposals today, but the time for reform is now. 

And so, at the risk of making too much reference to the attacks 

of September 11, 2001, I close my remarks with another passage 

from the 9/11 Commission report. 
6 

‘‘We must find ways of reconciling security with liberty since the 

success of one helps protect the other. The choice between security 

and liberty is a false choice, as nothing is more likely to endanger 

America’s liberties than the success of a terrorist attack at home. 

‘‘Our history has shown that insecurity threatens liberty. Yet if 

our liberties are curtailed, we lose the values that we are struggling to defend.’’ 

I thank you and yield back my time. 

Mr. GOODLATTE. Thank you, Mr. Conyers. 

And without objection, all other Members’ opening statements 

will be made a part of the record. 

It is now our pleasure to welcome our first panel today, and if 

the members of the panel would rise, I will begin by swearing in 

the witnesses. 

[Witnesses sworn.] 

Mr. GOODLATTE. Let the record reflect that all of the witnesses 

responded in the affirmative. 

Thank you, and I will begin by introducing our witnesses. 

Our first witness is Mr. James Cole, the Deputy Attorney General of the United States at the Department of Justice. Mr. Cole 

first joined the agency in 1979 as part of the Attorney General’s 

Honors Program and served the department for 13 years as a trial 

lawyer in the Criminal Division. 

He entered private practice in 1992 and was a partner at Bryan 

Cave, LLP, from 1995 to 2010, specializing in white-collar defense. 

Mr. Cole has also served as chair of the American Bar Association 

White Collar Crime Committee and as chair-elect of the ABA 

Criminal Justice Section. 

Mr. Cole received his bachelor’s degree from the University of 

Colorado and his J.D. from the University of California at 

Hastings. 

Our second witness is Mr. Peter Swire, a member of the Review 

Group on Intelligence and Communications Technologies. The review group’s mission is to review and provide recommendations on 

how, in light of advancements in communications technologies, the 

United States can employ its technical collection capabilities in a 

manner that optimally protects 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. 

Mr. Swire is also a senior fellow at the Future of Privacy Forum 

and the Center for American Progress, and policy fellow at the 

Center for Democracy and Technology. Mr. Swire is a professor at 

the Scheller College of Business at Georgia Tech, having previously 

served as a C. William O’Neill Professor of Law at the Ohio State 

University. 

Mr. Swire worked for the Clinton administration as chief counselor for privacy in the U.S. Office of Management and Budget, 

where he held Government-wide responsibility for privacy policy. In 

2009 and 2010, Mr. Swire served as Special Assistant to President 

Obama for Economic Policy, serving in the National Economic 

Council with Lawrence Summers. Mr. Swire earned his undergraduate degree from Princeton and his juris doctor from Yale Law 

School. 
7 

Our third witness is Mr. David Medine, the chairman of the Privacy and Civil Liberties Oversight Board. Mr. Medine started full 

time as chairman on May 27, 2013. Prior to serving as chairman, 

he was an attorney fellow for the Securities and Exchange Commission and a special counsel at the Consumer Financial Protection 

Bureau. 

From 2002 to 2012, he was a partner in the law firm Wilmer 

Hale, having previously served as a senior adviser to the White 

House National Economic Council from 2000 to 2001. From 1992 

to 2000, Mr. Medine was the Associate Director for Financial Practices at the Federal Trade Commission. Before joining the FTC, he 

taught at Indiana University School of Law and the George Washington University School of Law. 

Mr. Medine received his bachelor’s degree from Hampshire College and his juris doctor from the University of Chicago Law 

School. 

I want to welcome all of you. I would ask each of you summarize 

your testimony in 5 minutes or less, and to help you stay within 

that time, there is a timing light on your table. When the light 

switches from green to yellow, you will have 1 minute to conclude 

your testimony. When the light turns red, it signals the witness’ 5 

minutes have expired. 

And we will begin with Deputy Attorney General Cole. Welcome. 

TESTIMONY OF THE HONORABLE JAMES COLE, 

UNITED STATES DEPARTMENT OF JUSTICE 

Mr. JAMES COLE. Thank you, Mr. Chairman, Ranking Member 

Conyers, and Members of the Committee, for inviting us here to 

continue the discussion of certain intelligence collection activities 

and our efforts to protect privacy and civil liberties at the same 

time. 

We have all invested a considerable amount of energy over these 

past few months in reviewing specific intelligence collection programs and the legal framework under which they are conducted. I 

think it is fair to say that all of us—the members of the Privacy 

and Civil Liberties Oversight Board, the members of the Presidential review group, the Administration, and the Congress—want 

the same thing—to maintain our national security while upholding 

the liberties that we all cherish. 

It is not always easy to agree on how best to accomplish these 

objectives, but we will continue to work in earnest to advance our 

common interests, and we appreciate the good faith in which everyone has engaged in this endeavor. 

We have benefited from the consideration of these difficult issues 

by the PCLOB and the PRG, and it’s a pleasure to appear with 

them today. In his speech on January 17th, the President laid out 

a series of measures to reform our surveillance activities that draw 

upon many of the core recommendations issued by the PCLOB and 

the PRG. 

The work to develop or carry out these measures is well underway, and I would like to highlight just a few of the most significant 

initiatives announced by the President that the Department of Justice is working to implement in close coordination with the intelligence community. 
8 

First, we are examining alternatives to the collection of bulk telephony metadata under Section 215, which, as you noted, the 

President has said will end as it currently exists. The President 

has said that the capability that this program was designed to provide is important and must be preserved, but we must find a new 

approach that does not require the Government to hold this bulk 

metadata. 

The Section 215 program, as currently constituted, is subject to 

an extensive framework of laws and judicial orders and to oversight by all three branches of Government, designed to prevent 

abuse. Neither the PCLOB nor the PRG has questioned the rigor 

of that oversight system, nor has anyone identified any intentional 

misuse of the telephony metadata. 

Nevertheless, we recognize that any time large amounts of data 

are collected, whether by the Government or private companies, 

there is a potential for misuse, and it will be important that the 

new approach remains subject to a rigorous oversight regime. Insofar as the legality of the program is concerned, it is important to 

remember that the courts, the final arbiters of the law, have repeatedly found the program lawful, including 15 separate judges of 

the Foreign Intelligence Surveillance Court and two District 

Courts. There has been only one contrary District Court ruling, 

which is now on appeal. 

The PCLOB undertook its own analysis of the legality, but the 

members were unable to agree on whether it was authorized under 

the statute. Although we continue to believe the program is lawful, 

we recognize that it has raised significant controversy and legitimate privacy concerns. And as I have said, we are working to develop a new approach, as the President has directed. 

Second, we are working to develop additional restrictions on Government’s ability to retain, search, and use in criminal cases U.S. 

person information incidentally collected when we target non-U.S. 

persons overseas under Section 702 of FISA. 

Third, the President recognized that our global leadership position requires us to take steps to maintain the trust and cooperation 

of people not only here at home, but around the world. Accordingly, 

he has also determined that as a matter of policy, certain privacy 

safeguards afforded for signals intelligence containing U.S. person 

information will be extended to non-U.S. persons where consistent 

with national security. We will be working with our colleagues in 

the intelligence community to implement that policy directive. 

Fourth, the department is working to change how we use national security letters so that the nondisclosure requirements authorized by statute will terminate within a fixed time unless the 

Government demonstrates a need for further secrecy. Although 

these nondisclosure obligations are important in preserving the viability of national security investigations, these reforms will ensure 

that secrecy extends no longer than necessary. 

Fifth, the President called upon Congress to authorize the establishment of a panel of advocates from outside the Government to 

provide an independent voice in significant cases before the FISC. 

We believe the ex parte process has functioned well. The court, 

however, should be able to hear independent views in certain FISA 

matters that present significant or novel questions. We will provide 
9 

our assistance to Congress as it considers legislation on this subject. 

Sixth, we have already taken steps to promote greater transparency about the number of national security orders issued to 

technology companies, the number of customer accounts targeted 

under those orders, and the legal authorities behind those requests. 

As a result of the procedures that we have adopted in this regard, 

technology companies have withdrawn their lawsuit concerning 

this issue. 

Through these new reporting methods, technology companies will 

be permitted to disclose more information to their customers than 

ever before. We look forward to consulting with Congress as we 

work to implement the reforms outlined by the President and as 

you consider various legislative proposals to address these issues. 

I’ll be happy to take any questions you may have. 

[The prepared statement of Mr. James Cole follows:] 
10 

Opening Statement of 

Deputy Attorney General James Cole 

Before the House Judiciary Committee 

February 4,2014, 10:00 A.M. 

Thank you, Mr. Chairman, Ranking Member Conyers, and 

Members of the Committee, for inviting us here to continue the 

discussion of certain intelligence collection activities and our 

efforts to protect privacy and civil liberties. We have all 

invested a considerable amount of energy over these past few 

months in reviewing specific intelligence collection programs 

and the legal framework under which they are conducted. T 

think it's fair to say that all of us-the members of the Privacy 

and Civil Liberties Oversight Board (PCLOB), the members of 

the Presidential Review Group (PRG), the Administration, and 

the Congress-want the same thing: to maintain our national 

security while upholding the liberties that we all cherish. It is 

not always easy to agree on how best to accomplish these 
11 

objectives, but we will continue to work in earnest to advance 

our common interests, and we appreciate the good faith in which 

everyone has engaged in this endeavor. 

We have benefited from the consideration of these difficult 

issues by the PCLOB and the PRG and it is a pleasure to appear 

with them today. In his speech on January 17th, the President 

laid out a series of measures to reform our surveillance activities 

that draw upon many of the core recommendations issued by the 

PCLOB and PRG. The work to develop or carry out these 

measures is well underway, and I would like to highlight just a 

few of the most significant initiatives announced by the 

President that the Department of Justice is working to 

implement in close coordination with the Intelligence 

Community (IC). 

First, we are examining alternatives to the collection of 

bulk telephony metadata under Section 215, which the President 

2 
12 

has said will end as it currently exists. The President has said 

that the capability that this program was designed to provide is 

important and must be preserved, but we must find a new 

approach that does not require the government to hold this bulk 

metadata. The Section 215 program as currently constituted is 

subject to an extensive framework of laws and judicial orders 

and to oversight by all three branches of government designed to 

prevent abuse. Neither the PCLOB nor the PRG has questioned 

the rigor of that oversight system. N or has anyone identified 

any intentional misuse of the telephony metadata. Nevertheless, 

we recognize that any time large amounts of data are collected, 

whether by the government or private companies, there is a 

potential for misuse, and it will be important that the new 

approach remain subject to a rigorous oversight regime. 

Insofar as the legality of the program is concerned, it is 

important to remember that the courts-the final arbiters of the 

3 
13 

law-have repeatedly found the program lawful, including 15 

separate judges of the Foreign Intelligence Surveillance Court 

(FISC) and two district courts. There has been only one 

contrary district court ruling which is now on appeal. The 

PCLOB undertook its own analysis of the legality, but its 

members were unable to agree on the whether it was authorized 

under the statute. Although we continue to believe the program 

is lawful, we recognize that it has raised significant controversy 

and legitimate privacy concerns, and as I have said we are 

working on developing a new approach as the President has 

directed. 

Second, we are working to develop additional restrictions 

on the government's ability to retain, search, and use in criminal 

cases U.S. person information incidentally collected when we 

target non-U.S. persons overseas under Section 702 of the 

Foreign Intelligence Surveillance Act (FISA). 

4 
14 

Third, the President recognized that our global leadership 

position requires us to take steps to maintain the trust and 

cooperation of people not only here at horne but around the 

world. Accordingly, he has also determined that, as a matter of 

policy, certain privacy safeguards afforded for signals 

intelligence containing U.S. person information will be extended 

to non-U.S. persons, where consistent with national security. 

We will be working with our colleagues in the Ie to implement 

that policy directive. 

Fourth, the Department is working to change how we use 

National Security Letters so that the nondisclosure requirements 

authorized by statute will terminate within a fixed time, unless 

the government demonstrates a need for further secrecy. 

Although these nondisclosure obligations are important in 

preserving the viabi lity of national security investigations, these 
15 

reforms will ensure that secrecy extends no longer than 

necessary. 

Fifth, the President called upon Congress to authorize the 

establishment of a panel of advocates from outside the 

government to provide an independent voice in significant cases 

before the FISC. While we believe the ex parte process has 

functioned well, the court should be able to hear independent 

views in certain FISA matters that present significant or novel 

questions. We will provide our assistance to Congress as it 

considers legislation on this subject. 

Sixth, we have already taken steps to promote greater 

transparency about the number of national security orders issued 

to technology companies, the number of customer accounts 

targeted under those orders, and the legal authorities behind 

those requests. As a result of the procedures we have adopted in 

this regard, technology companies have withdrawn their lawsuit 

6 
16 

concerning this issue. Through these new reporting methods, 

technology companies will be permitted to disclose more 

information to their customers than ever before. 

We look forward to consulting with Congress as we work 

to implement the reforms outlined by the President and as you 

consider various legislative proposals to address these issues. 

I would be happy to take any questions that you may have. 

7 
17 

Mr. GOODLATTE. Thank you. 

Mr. Swire, welcome. 

TESTIMONY OF PETER P. SWIRE, REVIEW GROUP ON 

INTELLIGENCE AND COMMUNICATIONS TECHNOLOGY 

Mr. SWIRE. Thank you, Mr. Chairman and Ranking Member 

Conyers and Members of the Committee. 

I appreciate the opportunity to testify today on behalf of the five 

members of the review group and the invitation and the request 

was rather than this being my personal statement, that it be reflecting the group’s effort and our report that was issued in December. 

The review group is a group of five people. I’ll briefly describe 

them in the context of our work and how we came to our recommendations. 

One of the members is Michael Morell, who had more than 30 

years in the CIA as a professional intelligence officer, and he finished his time there as Deputy Director of the CIA. So we had the 

benefit in our group of somebody with many years of deep experience in the intelligence community. 

Richard Clarke had been the senior cybersecurity and anti-terrorism adviser, both to President Clinton and President George W. 

Bush. So he came to this with both technological and Government 

experience in many different respects. 

Cass Sunstein is, I think, the most cited law professor in the 

United States, a professor at Harvard right now, and he has spent 

5 years as the Director of the Office of Information and Regulatory 

Affairs at OMB, with a detailed knowledge of the Government and 

how it operates. 

And Geoffrey Stone is the former dean of the University of Chicago Law School, and he’s an expert, among other things, on civil 

liberties in the time of war. 

So I felt privileged to be working with these four distinguished 

gentlemen. My own background is primarily in the area of privacy, 

technology, and law, how these come together, and I’ll mention two 

parts of the background that are relevant to today’s hearing. 

For one, when I worked under President Clinton, I was asked to 

chair an administration process to propose legislation on how to 

update wiretap laws for the Internet. And in the fall of 2000, this 

cleared administration proposal came before this Committee for a 

hearing where the Department of Justice testified, and some of the 

people here today asked questions of that. So how to do the law 

around wiretaps on the Internet is something we’ve been wrestling 

with for quite some time. 

The second thing is that in 2004, I published an extensive article 

on the history and issues surrounding FISA, which touches on 

some of the issues we’ll address today. 

In terms of the review group, in August, the five of us were invited to come meet with the President and be named to the review 

group, and I’d like to just take a moment on the charter of our 

group. The charter was to try to bring together things that are 

hard to bring together. 

How do we do national security? How do we maintain our foreign 

allies and relationships with other countries, including commercial 
18 

relationships? How do we preserve privacy and civil liberties in this 

new technological age? How do we maintain public trust? And finally, how do we address the insider threat, which we’ve seen can 

be a very—a big problem in terms of maintaining classified secrets? 

So, within these national security, commercial, civil liberties and 

public trust things, how do we put this all together in a package? 

The—our job was to be—as tasked by the President, was to be forward looking. Where should we go from here? So I’d like to emphasize we did not do a constitutional analysis of any of the programs. 

That was not what we thought our job was. 

We also did not do a specific statutory analysis of whether something was or was not lawful that was being done specifically 

around 215. Others have taken on those tasks. Our group did not 

do that constitutional or statutory analysis. We thought putting 

these five major goals together into a report was plenty for us to 

take on during the fall. 

One of the things about our group is that we, in addition to being 

forward looking, were not limited to counterterrorism in our mission. And so, the PCLOB, as David Medine will talk about, has 

statutory authorities specifically focused on counterterrorism. We 

were asked to take on broader issues around foreign affairs, et 

cetera, that in some cases go beyond that scope. 

We met during the fall each week. We got briefed extensively on 

a classified basis from the agencies. We had detailees from the 

agencies. Every question we asked for, we got answered. The agencies were outstanding in their cooperation. 

We presented our preliminary findings orally to the President’s 

top advisers during the fall and, on December 11th, transmitted 

our report to the White House. This was our report. It was submitted for declassification review to make sure we weren’t releasing classified secrets, but the recommendations were the group of 

five, it was our own. 

And as it turned out, after we did this work together, the civil 

liberties people in our group, the anti-terrorism, the CIA people in 

the group, all of us came to consensus. So every sentence of the report turned out to be agreed to by all five of us. As I testify and 

as I answer your questions today, my effort will be to accurately 

reflect the report that brought these disparate views together. 

Our—we met with the President after the report was submitted. 

Our report was released in mid December, has been extensively 

discussed in the press and elsewhere, and the review group formally ceased to exist after the President’s speech. 

So I’m here as a private citizen, but doing my very best to reflect 

the views of the five people on the review group. So I look forward 

to taking questions from you all. 

Thank you. 

[The prepared statement of Mr. Swire follows:] 
19 

Testimony of Pete:r P. Swi:re 

Review Group on Intelligence and 

Communications Technology 

Before the 

HOUSE COMMITTEE ON THE JUDICIARY 

Hearing on: 

Examining Recommendations to Reform FISA Authorities 

February 4, 2014 
20 

Executive Summary 

Overview 

The national security threats facing the United States and our allies 

are numerous and significant, and they will remain so well into the future. 

These threats include international terrorism, the proliferation of weapons 

of mass destruction, and cyber espionage and warfare. A robust foreign 

intelligence collection capability is essential if we are to protect ourselves 

against such threats. Because our adversaries operate through the use of 

complex communications teclmologies, the National Security Agency, with 

its impressive capabilities and talented officers, is indispensable to keeping 

our country and our allies safe and secure. 

At the same time, the United States is deeply committed to the 

protection of privacy and civil liberties-fundamental values that can be 

and at times have been eroded by excessive intelligence collection. After 

careful consideration, we recommend a number of changes to our 

intelligence collection activities that will protect these values without 

undermining what we need to do to keep our nation safe. 

Principles 

vVe suggest careful consideration of the following principles: 

1. The United States Government must protect, at once, two different 

f01111s of security: national security and personal privacy. 

14 
21 

In the American tradition, the word "security" has had multiple 

meanings. In contemporary parlance, it often refers to national securihj or 

homeland security. One of the government's most fundamental 

responsibilities is to protect this form of security, broadly understood. At 

the same time, the idea of security refers to a quite different and equally 

fundamental value, captured in the Fourth Amendment to the United 

States Constitution: "The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches and seizures, 

shall not be violated ... " (emphasis added). Both forms of security must be 

protected. 

2. The central task is one of risk management; multiple risks are 

involved, and all of them must be considered. 

When public officials acquire foreign intelligence information, they 

seek to reduce risks, above all risks to national security. The challenge, of 

course, is that multiple risks are involved. Government must consider all of 

those risks, not a subset, when it is creating sensible safeguards. In addition 

to reducing risks to national security, public officials must consider four 

other risks: 

.. Risks to privacy; 

It Risks to freedom and civil liberties, on the Internet and elsewhere; 

" Risks to our relationships with other nations; and 

.. Risks to trade and commerce', including international commerce. 

15 
22 

3. The idea of "balancing" has an important element of truth, but it is 

also inadequate and misleading. 

It is tempting to suggest that the underlying goal is to achieve the 

right "balance" between the two forms of security. The suggestion has an 

important element of truth. But some safeguards are not subject to 

balancing at an. In a free society, public officials should never engage in 

surveillance in order to punish their political enemies; to restrict freedom of 

speech or religion; to suppress legitimate criticism and dissent; to help their 

preferred companies or industries; to provide domestic companies with an 

unfair competitive advantage; or to benefit or burden members of groups 

defined in terms of religion, ethnicity, race, and gender. 

4. The government should base its decisions on a careful analysis of 

consequences, including both benefits and costs (to the extent 

feasible). 

In many areas of public policy, officials arc increasingly insistent on 

the need for careful analysis of the consequences of their decisions, and on 

the importance of relying not on intuitions and anecdotes, but on evidence 

and data. Before they are undertaken, surveillance decisions should 

depend (to the extent feasible) on a careful assessment of the anticipated 

consequences, including the full range of relevant risks. Such decisions 

should also be subject to continuing scrutiny, including retrospective 

analysis, to ensure that any errors are corrected. 

16 
23 

Smveillance of US Persons 

With respect to surveillance of US Persons, we recommend a series of 

significant reforms. Under section 215 of the Foreign Intelligence 

Surveillance Act (FISA), the government now stores bulk telephony metadata, understood as information that includes the telephone numbers that 

both originate and receive calls, time of call, and date of call. (Meta-data 

does not include the content of calls.). We recommend that Congress 

should end such storage and transition to a system in which such metadata is held privately for the government to query when necessary for 

national security purposes. 

In our view, the current storage by the government of bulk meta-data 

creates potential risks to public trust, personal privacy, and civil liberty. We 

recognize that the government might need access to such meta-data, which 

should be held instead either by private prOViders or by a private third 

party. This approach would allow the government access to the relevant 

information when such access is justified, and thus protect national 

security without unnecessarily threatening privacy and liberty. Consistent 

with this recommendation, we endorse a broad principle for the future: as 

a general rule and without senior policy review, the government should 

not be permitted to collect and store mass, undigested, non-public personal 

information about US persons for the purpose of enabling future queries 

and data-mining for foreign" intelligence purposes. 

We also recommend specific reforms that will provide Americans 

with greater safeguards against intrusions into their personal domain. We 

17 
24 

endorse new steps to protect American citizens engaged in 

communications with non-C5 persons. We recommend important 

rcshictions on the ability of the Foreign Intelligence Surveillance Court 

(FISC) to compel third parties (such as telephone service providers) to 

disclose private information to the government. We endorse similar 

reshictions on the issuance of National Security Letters (by which the 

Federal Bureau of Investigation now compels individuals and 

organizations to turn over certain otherwise private records), 

recommending prior judicial review except in emergencies, where time is 

of the essence. 

We recommend concrete steps to promote transparency and 

accountability, and thus to promote public trust, which is essential in this 

domain. Legislation should be enacted requiring information about 

surveillance programs to be made available to the Congress and to the 

American people to the greatest extent possible (Stl bject only to the need to 

protect classified information). We also recommend that legislation should 

be enacted authorizing telephone, Internet, and other providers to disclose 

publicly general information about orders they receive directing them to 

provide information to the government. Sueh information might disclose 

the number of orders that providers have received/ the broad categories of 

information produced, and the number of users whose information has 

been produced. In the same vein, we recommend that the government 

should publicly disclose, on a regular basis, general data about the orders it 

has issued in programs whose existence is unclassified. 

18 
25 

Surveillance of Non-US Persons 

Significant steps should be taken to protect the privacy of non-US 

persons. In particular, any programs that allow surveillance of such 

persons even outside the United States should satisfy six separate 

constraints. They: 

1) must be authorized by duly enacted laws or properly authorized 

executive orders; 

2) must be directed exclusively at protecting national security interests 

of the United States or our allies; 

3) must not be directed at illicit or illegitimate ends, such as the theft of 

trade secrets or obtaining commercial gain for domestic industries; 

4) must not target any non-United States person based solely on that 

person's political views or religious convictions; 

5) must not disseminate information about non-United States persons 

if the information is not relevant to protecting the national security 

of the United States or our allies; and 

6) must be subject to careful oversight and to the highest degree of 

transparency consistent with protecting the national security of the 

United States and our allies. 

We recommend that, in the absence of a specific and compelling 

showing, the US Government should follow the model of the Department 

of Homeland Security and apply the Privacy Act of 1974 in the same way 

to both US persons and non-US persons. 

19 
26 

Setting Priorities and Avoiding Unjustified or Unnecessary 

Surveillance 

To reduce the risk of unjustified, unnecessary, or excessive 

surveillance in foreign nations, indudi.ng collection on foreign leaders, we 

recommend that the President should create a new process, requiring 

highest-level approval of all sensitive intelligence requirements and the 

methods that the Intelligence Community will use to meet them. This 

process should identify both the uses and the limits of surveillance on 

foreign leaders and in foreign nations. 

We recommend that those involved i.n the process should consider 

whether (1) surveillance is motivated by especiany important national 

security concerns or by concerns that are less pressing and (2) surveillance 

would involve leaders of nations with whom we share fundamental values 

and interests or leaders of other nations. With close reference to (2), we 

recommend that with a small number of closely allied governments, 

meeting specific criteria, the US Government should explore 

understandings or arrangements regarding intelligence collection 

guidelines and practices with respect to each others' citizens (including, if 

and where appropriate, intentions, strictures, or limitations with respect to 

collections ). 

20 
27 

Organizational Reform 

We recommend a series of organizational changes. With respect to 

the National Security Agency (NSA), we believe that the Director should be 

a Senate-confirmed position, with civilians eligible to hold that position; 

the President should give serious consideration to making the next Director 

of NSA a civilian. NSA should be dearly designated as a foreign 

intelligence organization. Other missions (including that of NSA's 

Information Assurance Directorate) should generally be assigned 

elsewhere. The head of the military unit, US Cyber Command, and the 

Director of NSA should not be a single official. 

\Ve favor a newly chartered, strengthened, independent Civil 

Liberties and Privacy Protection Board (CLPP Board) to replace the Privacy 

and Civil Liberties Oversight Board (PCLOB). The CLPP Board should 

have broad authority to review government activity relating to foreign 

intelligence and counterterrorism whenever that activity has implications 

for civil liberties and privacy. A Special Assistant to the President for 

Privacy should also be designated, serving in both the Office of 

Management and Budget and the National Security Staff. This Special 

Assistant should chair a Chief Privacy Officer Council to help coordinate 

privacy policy throughout the Executive branch. 

With respect to the FISC, we recommend that Congress should create 

the position of Public Interest Advocate to represent the interests of privacy 

and civil liberties before the FISC. We also recommend that the 

government should take steps to increase the transparency of the FISC's 

21 
28 

decisions and that Congress should change the process by which judges are 

appointed to the FISC. 

Global Communications Technology 

Substantial steps should be taken to protect prosperity, security, and 

openness in a networked world. A free and open Internet is critical to both 

self-goverrunent and economic growth. The United States Government 

should reaffirm the 2011 International Strategy for Cyberspace. It should 

stress that Internet governance must not be limited to governments, but 

should include all appropriate stakeholders, including businesses, civil 

society, and technoJogy specialists. 

The US Government should take additional steps to promote 

security, by (1) fully supporting and not undermining efforts to create 

encryption standards; (2) making clear that it will not in any way subvert, 

undermine, weaken, or make vulnerable generally available commercial 

encryption; and (3) supporting efforts to encourage the greater use of 

encryption technology for data in transit, at rest, in the cloud, and in 

storage. Among other measures relevant to the Internet, the US 

Government should also support international norms or agreements to 

increase confidence in the security of online cOIllmunications. 

For big data and data-mining programs directed at communications, 

the US Government should develop Privacy and Civil Liberties Impact 

Assessments to ensure that such efforts are statistiCillly reliable, costeffective, and protective of privacy and civil liberties. 

22 
29 

Protecting l'Vllat We Do Collect 

We recommend a series of steps to reduce the risks associated with 

"insider threats." A governing principle is plain: Classified information 

should be shared only with those who genuinely need to know. We 

recommend specific changes to improve the efficacy of the persOlmel 

vetting system. The use of "for-profit" corporations to conduct persOlmel 

investigations should be reduced or terminated. Security clearance levels 

should be further differentiated. Departments and agencies should institute 

a Work-Related Access approach to the dissemination of sensitive, 

classified information. Employees with high-level security clearances 

should be subject to a Personnel Continuous Monitoring Program. 

Ongoing security clearance vetting of individuals should use a riskmanagement approach and depend on the sensitivity and quantity of the 

programs and information to which individuals are given access. 

The security of information technology networks carrying classified 

information should be a matter of ongoing concern by Principals, who 

should conduct an annual assessment with the assistance of a /I second 

opinion" team. Classified networks should increase the use of physical and 

logical separation of data to restrict access, including through Information 

Rights Management software. erber-security software standards and 

practices on classified networks should be at least as good as those on the 

most secure private-sector enterprises. 

23 
30 

Recommendations 

Recommendation 1 

We recommend that section 215 should be amended to authorize 

the Foreign Intelligence Surveillance Court to issue a section 215 order 

compelling a third party to disclose otherwise private information about 

particular individuals only if: 

(1) it finds that the government has reasonable grounds to believe 

that the particular information sought is relevant to an 

authorized investigation intended to protect "against 

international terrorism or clandestine intelligence activities" and 

(2) like a subpoena, the order is reasonable in focus, scope, and 

breadth. 

Recommendation 2 

We recommend that statutes that authorize the issuance of National 

Security Letters should be amended to permit the issuance of National 

Security Letters only upon a judicial finding that: 

(1) the government has reasonable grounds to believe that the 

particular information sought is relevant to an authorized 

investigation intended to protect "against international 

terrorism or clandestine intel1igence activities" and 

(2) like a subpoena, the order is reasonable in focus, scope, and 

breadth. 

24 
31 

Recommendation 3 

·We recommend that all statutes authorizing the use of National 

Security Letters should be amended to require the use of the same 

oversight, minimization, retention, and dissemination standards that 

currently govern the use of section 215 orders. 

RI:!J::.Q!l1mmdationj 

We recommend that, as a general rule, and without senior poJicy 

review, the government should not be permitted to collect and store aU 

mass, undigested, non-public personal information about individuals to 

enable future queries and data-mining for foreign inteUigence purposes. 

Any program involving government collection or storage of such data 

must be narrowly tailored to serve an important government interest. 

Recommendation 5 

loVe recommend that legislation should be enacted that terminates 

the storage of bulk telephony meta-data by the government under 

section 215, and transitions as soon as reasonably possible to a system in 

which such meta-data is held instead either by private providers or by a 

private third party. Access to such data should be permitted on]y with a 

section 215 order from the Foreign IntelHence Surveillance Court that 

meets the requirements set forth in Recommendation 1. 

Recommendation 6 

We recommend that the government should commission a study of 

the legal and policy options for assessing the distinction between metadata and other types of information. The study should include 

25 
32 

technological experts and persons with a diverse range of perspectives, 

including experts about the missions of intelligence and law 

enforcement agencies and about privacy and dvilliberties. 

RecQID1!J£llQ!!tion 2 

We recommend that legislation should be enacted requiring that 

detailed information about authorities such as those involving National 

Security Letters, section 215 business records, section 702, pen register 

and trap-and-trace, and the section 215 bulk telephony meta-data 

program should be made available on a regular basis to Congress and 

the American people to the greatest extent possible, consistent with the 

need to protect classified information. With respect to authorities and 

programs whose existence is unclassified, there should be a strong 

presumption of transparency to enable the American people and their 

elected representatives independently to assess the merits of the 

programs for themselves. 

We recommend that: 

(1) legislation should be enacted providing that, in the use of 

National Security Letters, section 215 orders, pen register and 

trap-and-trace orders, 702 orders, and similal' orders directing 

individuals, businesses, or other institutions to turn over 

information to the government, non-disclosure orders may be 

issued only upon a judicial finding that there are reasonable 

grounds to believe that disclosure would significantly threaten 

26 
33 

the national security, interfere with an ongoing investigation, 

endanger the life or physical safety of any person, impair 

diplomatic relations, or put at risk some other similarly weighty 

government or foreign intelligence interest; 

(2) nondisclosure orders should remain in effect for no longer than 

180 days without judicial re-approval; and 

(3) nondisclosure orders should never be issued in a manner that 

prevents the recipient of the order from seeking legal counsel in 

order to challenge the order's legality. 

Recommendation 9 

We recommend that legislation should be enacted providing that, 

even when nondisclosure orders are appropriate, recipients of National 

Security Letters, section 215 orders, pen register and trap-and-trace 

orders, section 702 orders, and similar orders issued in programs whose 

existence is unclassified may publicly disdose on a periodic basis 

general information about the number of such orders they have received, 

the number they have complied with, the general categories of 

information they have produced, and the number of users whose 

information they have produced in each category, unless the government 

makes a compelling demonstration that such disclosures would 

endanger the national security. 

RecomIJ:1~l}cl<ltigI11Q 

We recommend that, building on current law, the government 

should publicly disclose on a regular basis general data about National 

27 
34 

Security Letters, section 215 orders, pen register and trap-and-trace 

orders, section 702 orders, and similar orders in programs whose 

existence is unclassified, unless the government makes a compelling 

demonstration that such disclosures would endanger the national 

security. 

Recomm~!Lgatiol!JJ. 

We recommend that the decision to keep secret from the American 

people programs of the magnitude of the section 215 bulk telephony 

meta-data program should be made only after careful deliberation at 

high levels of government and only with due consideration of and 

respect for the strong presumption of transparency that is central to 

democratic governance. A program of this magnitude should be kept 

secret from the American people only if (a) the program l'erves a 

compelling governmental interest and (b) the efficacy of the program 

would be substantially impaired if our enemies were to know of its 

existence. 

Recommendation 12 

We recommend that, if the government legally intercepts a 

communication under section 702, or under any other authority that 

justifies the interception of a communication on the ground that it is 

directed at a non-United States person who is located outside the United 

States, and if the communication either includes a United States person 

as a participant or reveals information about a United States person: 

28 
35 

(1) any information about that United States person should be 

purged upon detection unless it either has foreign intelligence 

value or is necessary to prevent serious harm to others; 

(2) any information about the United States person may not be used 

in evidence in any proceeding against that United States person; 

(3) the government may not search the contents of communications 

acquired under section 702, or under any other authority covered 

by this recommendation, in an effort to identify 

communications of particular United States persons, except (a) 

when the information is necessary to prevent a threat of death or 

serious bodily harm, or (b) when the government obtains a 

warrant based on probable cause to believe that the United 

States person is planning or is engaged in acts of international 

terrorism. 

!t~f_ommen..dEtio!ll~ 

We recommend that, in implementing section 702, and any other 

authority that authorizes the surveillance of non-United States persons 

who are outside the United States, in addition to the safeguards and 

oversight mechanisms already in place, the US Government should 

reaffirm that such surveillance: 

(1) must be authorized by duly enacted laws or properly authorized 

executive orders; 

(2) must be directed exclusively at the national security of the 

United States or our allies; 

29 
36 

(3) must not be directed at illicit or H1egitimate ends, such as the 

theft of trade secrets or obtaining commercial gain for domestic 

industries; and 

(4) must not disseminate information about non-United States 

persons if the information is not relevant to protecting the 

national security of the United States or our allies. 

In addition, the US Government should make dear that such 

surveillance: 

(1) must not target any non-United States person located outside of 

the United States based solely on that person's political views or 

religious convictions; and 

(2) must be subject to careful oversight and to the highest degree of 

transparency consistent with protecting the national security of 

the United States and our allies. 

Recommendation 14 

We recommend that, in the absence of a specific and compelling 

showing, the US Government should foHow the model of the 

Department of Homeland Security, and apply the Privacy Act of 1974 in 

the same way to both US persons and non-US persons. 

l.lecommeI1Aation 1_!2 

We recommend that the National Security Agency should have a 

limited statutory emergency authority to continue to track known targets 

of counterterrorism surveillance when they first enter the United States, 

30 
37 

until the Foreign Intelligence Surveillance Court has time to issue an 

order authorizing continuing surveillance inside the United States. 

RecQ.mI!1~ILqi!fuJ2l.1§ 

We recommend that the President should create a new process 

requiring high-level approval of aU sensitive intelligence requirements 

and the methods the Intelligence Community will use to meet them. This 

process should, among other things, identify both the uses and limits of 

surveillance on foreign leaders and in foreign nations. A small staff of 

policy and intelligence professionals should review intelligence 

collection for sensitive activities on an ongoing basis throughout the year 

and advise the National Security Council Deputies and Principals when 

they believe that an unscheduled review by them may be warranted. 

Re~ommendation 17 

We recommend that: 

(1) senior policymakers should review not only the requirements in 

Tier One and Tier Two of the National Intelligence Priorities 

Framework, but also any other requirements that they define as 

sensitive; 

(2) senior poIicymakeI's should review the methods and targets of 

collection on requirements in any Tier that they deem sensitive; 

and 

(3) semor policymakers from the federal agencies with 

responsibility for US economic interests should participate in 

31 
38 

the review process because disclosures of classified information 

can have detrimental effects on US economic interests. 

Recommendation 1~ 

We recommend that the Director of National Intelligence should 

establish a mechanism to monitor the collection and dissemination 

activities of the Intelligence Community to ensure they are consistent 

with the determinations of senior poHcymakers. To this end, the Director 

of National Intelligence should prepare an annual report on this issue to 

the National Security Advisor, to be shared with the Congressional 

intelligence committees. 

Recommendation 19 

We recommend that decisions to engage in surveillance of foreign 

leaders should consider the following criteria: 

(1) Is there a need to engage in such surveillance in order to assess 

significant threats to our national security? 

(2) Is the other nation one with whom we share values and interests, 

with whom we have a cooperative relationship, and whose 

leaders we should accord a high degree of respect and deference? 

(3) Is there a reason to believe that the foreign leader may be being 

duplicitous in dealing with senior US officials or is attempting to 

hide information relevant to national security concerns from the 

US? 

(4) Are there other collection means or collection targets that could 

reliably reveal the needed information? 

32 
39 

(5) What would be the negative effects if the leader became aware of 

the US collection, or if citizens of the relevant nation became so 

aware? 

H~£I;!lnmendation 20 

We recommend that the US Government should examine the 

feasibility of creating software that would allow the National Security 

Agency and other intelligence agencies more easily to conduct targeted 

information acquisition rather than bulk-data collection. 

Recommel}Qatto.!L.'?l 

We recommend that with a small number of closely allied 

governments, meeting specific criteria, the US Government should. 

explore understandings or arrangements regarding intelligence 

collection guidelines and practices with respect to each others' citizens 

(including, if and where appropriate, intentions, strictures, or limitations 

with respect to collections). The criteria should include: 

(1) shared national security objectives; 

(2) a close, open, honest, and cooperative relationship between 

senior-level poHcy officials; and 

(3) a relationship between intelligence services characterized both 

by the sharing of intelligence information and analytic thinking 

and by operational cooperation against critical targets of joint 

national security concern. Discussions of such understandings 

or arrangements should be done between relevant inteUigence 

communities, with senior policy-level oversight. 

33 
40 

We recommend that: 

(1) the Director of the National Security Agency should be a 

Senate-confirmed position; 

(2) civilians should be eligible to hold that position; and 

(3) the President should give serious consideration to making the 

next Director of the National Security Agency it civilian. 

Recommendation 23 

We recommend that the National Security Agency should be 

dearly designated as a foreign intelligence organization; missions other 

than foreign intelligence collection should generaUy be reassigned 

elsewhere. 

Recommendation 24, 

We recommend that the head of the military unit, US Cyber 

Command, and the Director of the National Security Agency should not 

be a single official. 

BecomnJsnd!:ltion 25 

We recommend that the Information Assurance Directorate-a 

large component of the N aHanal Security Agency that is not engaged in 

activities related to foreign intelligence - should become a separate 

agency within the Department of Defense, reporting to the cyber policy 

element within the Office of the Secretary of Defense. 

34 
41 

Recommendation 26 

We recommend the creation of a privacy and dvilliberties policy 

official located both in the National Security Staff and the Office of 

Management and Budget. 

We recommend that: 

(1) The charter of the Privacy and Civil Liberties Oversight Board 

should be modified to create a new and strengthened agency, 

the Civil Liberties and Privacy Protection Board, that can oversee 

Intelligence Community activities for foreign intelligence 

purposes, rather than only for counterterrorism purposes; 

(2) The Civil Liberties and Privacy Protection Board should be an 

authorized recipient for whistle-blower complaints related to 

privacy and civil liberties concerns from employees in the 

Intelligence Community; 

(3) An Office of Technology Assessment should be created within 

the Civil Liberties and Privacy Protection Board to assess 

InteUigence Community technology initiatives and support 

privacy-enhancing technologies; and 

(4) Some compliance functions, similar to outside auditor functions 

in corporations, should be shifted from the National Security 

Agency and perhaps other intelligence agencies to the Civil 

Liberties and Privacy Protection Board. 

35 
42 

Recommendation 28 

We recommend that: 

(1) Congress should create the position of Public Interest Advocate to 

represent privacy and civil liberties interests before the Foreign 

Intelligence SurveiHance Court; 

(2) the Foreign Intelligence Surveillance Court should have greater 

technological expertise available to the judges; 

(3) the transparency of the Foreign Intelligence Surveillance Court's 

decisions should be increased, including by instituting 

declassification reviews that comply with existing standards; and 

(4) Congress should change the process by which judges are 

appointed to the Foreign Intelligence Surveillance Court, with the 

appointment power divided among the Supreme Court Justices . 

.Recommendation 29 . 

We recommend that, regarding encryption, the US Government 

should: 

(1) funy support and not undermine efforts to create encryption 

standards; 

(2) not in any way subvert, undermine, weaken, or make vulnerable 

generally available commercial software; and 

(3) increase the use of encryption and urge US companies to do so, in 

order to better protect data in transit, at rest, in the cloud, and in 

other storage. 

36 
43 

Recommendation 30 

We recommend that the National Security Council staff should 

manage an interagency process to review on a regular basis the activities 

of the US Government regarding attacks that exploit a previously 

unknown vulnerability in a computer application or system. These are 

often caBed "Zero Day" attacks because developers have had zero days 

to address and patch the vulnerability. US policy should generally move 

to ensure that Zero Days are quickly blocked, so that the underlying 

vulnerabilities are patched on US Government and other networks. In 

rarc instances, US policy may briefly authorize using a Zero Day for high 

priority intelligence collection, following senior, interagency review 

involving all appropriate departments. 

Recommendation 31 

We recommend that the United States should support international 

norms or international agreements for specific measures that will 

increase confidence in the security of online communications. Among 

those measures to be considered are: 

(1) Governments should not use surveillance to steal industry 

secrets to advantage their domestic industry; 

(2) Governments should not use their offensive cyber capabilities 

to change the amounts held in financial accounts or otherwise 

manipUlate the financial systems; 

37 
44 

(3) Governments should promote transparency about the number 

and type of law enforcement and other requests made to 

communications providers; 

(4) Absent a specific and compelling reason, governments should 

avoid localization requirements that (a) mandate location of 

servers and other information technology facilities or (b) prevent 

trans-border data flows. 

Re5=ommendation 3~ 

We recommend that there be an Assistant Secretary of State to lead 

diplomacy of international information technology issues. 

Recommendation 33 

We recommend that as part of its diplomatic agenda on 

international information technology issues, the United States should 

advocate for, and explain its rationale for, a model of Internet governance 

that is inclusive of all appropriate stakeholders, not just governments. 

Recoml!lsnda.ti oIl34 

We recommend that the US Government should streamline the 

process for lawful international requests to obtain electronic 

communications through the Mutual Legal Assistance Treaty process. 

Recommendation 35 

We recommend that for big data and data-mining programs 

directed at communications, the US Government should develop Privacy 

and Civil Liberties Impact Assessments to ensure that such efforts are 

38 
45 

statisticaHy reliable, cost-effective, and protective of privacy and civil 

liberties. 

R.I!~£QJTIm~Il.g!!!!.Q.I.L~!i 

We recommend that for future developments in communications 

technology, the US should create program-by-program reviews informed 

by expert technologists, to assess and respond to emerging privacy and 

civil liberties issues, through the Civil Liberties and Privacy Protection 

Board or other agencies. 

Recommendation 37 

We recommend that the US Government should move toward a 

system in which background investigations relating to the vetting of 

personnel for security clearance are performed solely by US Government 

employees or by a non-profit, private sector corporation. 

Recommendation 38 

We recommend that the vetting of personnel for access to classified 

information should be ongoing, rather than periodic. A standard of 

Personnel Continuous Monitoring should be adopted, incorporating data 

from Insider Threat programs and from commercially available sources, 

to note such things as changes in credit ratings or any arrests or court 

proceedings. 

Recommendi!!ion 12 

We recommend that security clearances should be more highly 

differentiated, including the creation of "administrative access" 

clearances that allow for support and information technology personnel 

39 
46 

to have the access they need without granting them unnecessary access to 

substantive policy 01' intelligence material. 

Recommendation 40 

We recommend that the US Government should institute a 

demonstration project in which personnel with security clearances 

would be given an Access Score, based upon the sensitivity of the 

information to which they have access and the number and sensitivity of 

Special Access Programs and Compartmented Material clearances they 

have. Such an Access Score should be periodically updated. 

Recommendation 41 

We recommend that the "need-to-share" or "need-lo-know" models 

should be replaced with a Work-Related Access model, which would 

ensure that all personnel whose role requires access to specific 

information have such access, without making the data more generally 

available to cleared personnel who are merely interested. 

RecommeIl9ation 42 

We recommend that the Government networks carrying Secret and 

higher classification information should use the best available cyber 

security hardware, software, and procedural protections against both 

external and internal threats. The National Security Advisor and the 

Director of the Office of Management and Budget should annually 

report to the President on the implementation of this standard. All 

networks carrying classified data, including those in contractor 

corporations, should be subject to a Network Continuous Monitoring 

40 
47 

Program, similar to the EINSTEIN 3 and TUTELAGE programs, to record 

network traffic for real time and subsequent review to detect anomalous 

activity, malicious actions, and data breaches. 

B~£.Qmmendation 43 

We recommend that the President's prior directions to improve the 

security of classified networks, Executive Order 13587, should be fully 

implemented as soon as possible. 

Recommendation 44 

We recommend that the National Security Council Principals 

Committee should annually meet to review the state of security of US 

Government networks carrying classified information, programs to 

improve such security, and evolving threats to such networks. An 

interagency "Red Team" should report annually to the Principals with an 

independent, "second opinion!! on the state of security of the classified 

information networks. 

.Recommendation 45 

\Ve recommend that all US agencies and departments with 

classified information should expand their use of software, hardware, 

and procedures that limit access to documents and data to those 

specifically authorized to have access to them. The US Government 

should fund the development of, procure, and widely use on classified 

networks improved Information Rights Management software to control 

the dissemination of classified data in a way that provides greater 

restrictions on access and use, as well as an audit trail of such use. 

41 
48 

Recommendation 46 

We recommend the use of cost-benefit analysis and riskmanagement approaches, both prospective and retrospective, to orient 

judgments about personnel security and neh'ITork security measures. 

42 
49 

Mr. GOODLATTE. Thank you. 

Mr. Medine, welcome. 

TESTIMONY OF DAVID MEDINE, 

PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD 

Mr. MEDINE. Thank you, Mr. Chairman, Ranking Member Conyers. 

Mr. GOODLATTE. You want to hit the button there on your—good. 

Pull it close to you as well. 

Mr. MEDINE. There we go. Thank you, Mr. Chairman, Ranking 

Member Conyers, and Members of the Committee, for the opportunity to testify regarding recommendations to reform the Nation’s 

intelligence gathering program. 

I’m the chairman of the Privacy and Civil Liberties Oversight 

Board, an independent, bipartisan agency in the executive branch 

tasked with ensuring that our Nation’s counterterrorism efforts are 

balanced with the need to protect privacy and civil liberties. 

I’d like to offer both my statement and the board’s report for the 

record. The board’s report focuses on the 215 program and the operations of the Foreign Intelligence Surveillance Court. And most 

of the recommendations are unanimous in our report. I will highlight some of the areas where there was lack of unanimity. 

But before I start, I’d like to express the board’s respect and admiration for the men and women in the intelligence community, 

who work tirelessly to protect our country day and night and uphold our values. We hold them in the highest regard, based on everything we have observed during the course of conducting our 

study. 

In June, many Members of Congress and the President asked us 

to prepare a report on the 215 and 702 programs conducted by 

NSA. Our 702 report will be issued in a couple of months. 

In the course of conducting our study, we had briefings with a 

number of intelligence agencies and had an opportunity to see the 

215 program in action. We held two public events to get public 

input, as well as soliciting public comment, and met with industry 

groups, trade associations, and advocates regarding this program. 

This culminated in our release on January 23 of our report addressing, again, the 215 program and reforms to the FISC. 

With regard to the 215 program, we conducted a statutory analysis and concluded that the program lacks a viable foundation in 

the law. We also looked at the First and Fourth Amendment of the 

Constitution and concluded that the program raised serious concerns under both of those amendments. 

We examined the privacy and civil liberties consequences of the 

program and found them serious because the program contains 

highly sensitive information. Citizens may be chilled in exercising 

their associational rights, in engaging with reporters or religious 

groups or political organizations, knowing that the Government is 

collecting information about them. 

This is also information that’s subject to potential abuse. We did 

not see any abuse now, but we certainly know lessons from the 

20th century where there were abuses of surveillance of civil rights 

leaders and anti-war activists and others. And so, gathering this 
50 

information by the Government does raise serious privacy and civil 

liberties consequences. 

But we also looked at the efficacy of the program, and we looked 

at each of the instances in which there were claimed successes in 

the program. We had classified information, and we checked our 

facts with the intelligence community. And after that analysis, we 

concluded that the benefits of the program are modest at best, and 

they are outweighed by the privacy and civil liberties consequences. 

As a result, a majority of the board recommended that the program be discontinued, and the entire board recommended that 

there be immediate changes to the program to add privacy and civil 

liberties protections. The dissenting members of the board felt that 

the Government’s interpretation of the program in the law was reasonable and that with the privacy changes that we are proposing 

on the interim basis, that they would be comfortable with having 

the program continue with those changes. 

Turning to the Foreign Intelligence Surveillance Court, the board 

unanimously recommends changes to the operation of the court, 

both to bolster the court’s confidence with the public and as well 

as let the court benefit from adversary proceedings, which are the 

heart of the judicial process. 

So, accordingly, the board recommends that a panel of special advocates be created, made up of private attorneys appointed by the 

court in cases involving significant legal and policy issues and new 

technologies so that there is another side presented besides the 

Government’s position, to argue on both statutory and constitutional grounds. 

We also recommend that there be an opportunity to appeal decisions of the court by the advocate. There have only been two appeals ever to the Foreign Intelligence Surveillance Court of Review, 

and we think there’s a benefit from the appellate process and, 

therefore, recommend a mechanism by which we think you can constitutionally have the special advocate obtain appellate review of 

the decisions. 

And then we also encourage the court to obtain more technical 

assistance and outside legal views because these are complex issues 

that the court is confronting, and the court could benefit from technology advice. 

And lastly, the board focused on transparency issues. In our democracy, there’s a tension between openness and secrecy with regarding our intelligence programs. We’ve made recommendations 

that we believe serve both of those values, and most of those recommendations are unanimous as well. 

So thank you very much for the opportunity to appear, and I’d 

be happy to answer your questions. 

[The prepared statement of Mr. Medine follows:] 
51 

PRIVACY & CIVIL LIBERTIES OVERSIGHT BOARD 

STATEMENT 

OF 

DAVID MEDINE, CHAIRMAN 

PRIVACY AN D CIVIL LIBERTIES OVERSIGHT 

BOARD 

BEFORE THE 

HOUSE JUDICIARY COMM ITTEE 

HEARING ENTITLED 

"RECOMMENDATIONS TO REFORM FOREIGN 

INTELLIGENCE PROGRAMS" 

FEBRUARY 4, 2014 
52 

STATEMENT OF DAVID MEDINE 

CHAIRMAN, PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD 

BEFORE THE HOUSE JUDICIARY COMMITTEE 

HEARING ENTITLED 

"RECOMMENDATIONS TO REFORM FOREIGN INTELLIGENCE PROGRAMS" 

FEBRUARY 4,2014 

I. Introduction 

Thank you for the opportunity to appear today before the House judiciary 

Committee as you evaluate potential reforms to government surveillance programs. 

I am the chairman of the Privacy and Civil Liberties Oversight Board ("PC LOB"), an 

independent executive branch agency tasked with ensuring that our nation's 

counterterrorism efforts are balanced with the need to protect civil liberties and privacy. 

On january 23, 2014, the Board released a comprehensive public report addressing the 

bulk telephone records program conducted by the National Security Agency ("NSA") under 

Section 215 of the USA PATRIOT Act, as well as the operations ofthe Foreign Intelligence 

Surveillance Court.1 The report, which is available at www.pclob.gov, contains an in-depth 

examination of the Section 215 program, including its operation, history, legality, 

constitutionality, and an analysis of whether it appropriately balances national security 

with privacy and civil liberties. The report also addresses the operations ofthe Foreign 

Intelligence Surveillance Court and the issue of transparency in government surveillance 

programs. The Board has made twelve specific recommendations for reform in these areas, 

ten of which were unanimous among the Board's five members.2 

The Board looks forward to working with Congress and the executive branch in the 

coming months as reforms to the government's surveillance practices are being 

considered.3 

See Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program 

Conducted under Section 215 of the USA PATRIOT Actand on the Operations of the Foreign Intelligence 

Surveillance Court Uan. 23, 2014), available at http://www.pc1ob.gov;' 

2 The Board's next public report will examine the surveillance program being conducted by the 

National Security Agency under Section 702 of the FISA Amendments Act of 2008, addressing whether, in the 

Board's view, the program is consistent with statutory authority, complies with the Constitution, and strikes 

the appropriate balance between national security and privacy and civil liberties. 

3 While these prepared remarks describe the views of the full Board, as reflected in its January 23, 

2014 report (including the separate minority statements included with that report), my spoken comments at 

the hearing represent my own personal views. 
53 

II, The PCLOB 

The PCLOB is an independent bipartisan agency within the executive branch, The 

Board's creation was a recommendation ofthe 9/11 Commission, which advised in its final 

report that "there should be a board within the executive branch to oversee adherence to 

the guidelines we recommend and the commitment the government makes to defend our 

civilliberties,"4 

The Board was established in its present form as an independent agency by the 

Implementing Recommendations ofthe 9/11 Commission Act of 2007,s but it did not 

become fully operational with all five Board members until May of last year,6 It is 

comprised of four part-time members and a full-time chairman, each serving staggered sixyear terms, all appointed by the President and confirmed by the Senate'? The Board's 

authorizing statute gives it two primary responsibilities: (1) 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," and (2) to 

"ensure that liberty concerns are appropriately considered in the development and 

implementation of laws, regulations, and policies related to efforts to protect the Nation 

against terrorism,"s 

THE 9 /11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE 

UNITED STATES, at 395 (2004). The National Commission on Terrorist Attacks on the United States (known as 

the 9/11 Commission) was a bipartisan panel established to "make a full and complete accounting of the 

circumstances surrounding" the September 11, 2001, terrorist attacks, and to provide "recommendations for 

corrective measures that can be taken to prevent acts of terrorism." Intelligence Authorization Act for Fiscal 

Year 2003, Pub. L. No. 107-306, § 602(4), (5),116 Stat 2383, 2408 (2002). 

5 Pub. L. No. 110-53, § 801(a), 121 Stat. 266, 352-58 (2007). 

In August 2012, the Board's four part-time members were confirmed by the Senate, providing the 

reconstituted Board with its first confirmed members and a quorum to begin operations. I was confirmed as 

chairman of the Board (its only full-time member) on May 7, 2013, and sworn in on May 29, five days before 

news stories based upon the NSA leaks began to appear. 

The five members ofthe Board, and their respective terms, are as foHows: 

Rachel L. Brand, whose term ends January 29, 2017. 

Elisebeth Collins Cook, whose first term ended January 29, 2014. On January 6,2014, Ms. 

Cook was nominated for a second term ending January 29, 2020. Under the Board's 

authorizing statute, as a result of this nomination, Ms. Cook can continue to serve through 

the end of the Senate's current session and, if confirmed before then, through January 29, 

2020. 

James X. Dempsey, whose term ends January 29,2016. 

David Medine (chairman), whose term ends January 29, 2018. 

Patricia M. Wald, whose term ends January 29, 2019. 

42 U.S.c. § 2000ee(c). 
54 

III. The Board's Report on the Section 215 Telephone Records Program and the 

FISA Court 

Last june, shortly after the first news articles appeared disclosing the existence of a 

previously unknown NSA program conducted under Section 215, as well as details 

regarding surveillance conducted under Section 702 of the FISA Amendments Act, a 

bipartisan group of thirteen U.S. Senators asked the PCLOB to investigate those programs 

and to produce an unclassified report, "so that the public and the Congress can have a long 

overdue debate" about the privacy issues they raised. 9 A subsequent letter from House 

Minority Leader Nancy Pelosi requested that the Board also consider the operations of the 

Foreign Intelligence Surveillance Court ("FISC" or "FISA court"), which approved the two 

programs. On june 21, 2013, the Board met with President Obama and his senior staff at 

the White House, and the President asked the Board to review "where our 

counterterrorism efforts and our values come into tension."1D 

In response to these congressional and presidential requests, the Board initiated a 

study of the Section 215 and 702 programs and the operation of the FISA court.ll This 

study included classified briefings with officials from the Office of the Director for National 

Intelligence ("ODNI"), NSA, Department of justice, Federal Bureau of Investigation ("FBI"), 

and Central Intelligence Agency ("CIA"). Board members also met with White House staff, a 

former presiding judge of the FISA court, academics, privacy and civil liberties advocates, 

technology and communications companies, and trade associations. In addition, the Board 

received a demonstration of the Section 215 program's operation and capabilities at the 

NSA. The Board has been provided access to classified opinions by the FISA court, various 

inspector general reports, and additional classified documents relating to the operation 

and effectiveness of the programs. At every step of the way, the Board has received the full 

cooperation of the intelligence agencies. 

As part of its study, and consistent with our statutory mandate to operate publicly 

where possible, the Board held two public forums. The first was a day-long public 

workshop held in Washington, D.C., on july 9,2013, comprised ofthree panels addressing 

different aspects ofthe Section 215 and 702 programs. The panelists provided input on the 

legal, constitutional, technology, and policy issues implicated by the two programs. The 

Letter from Senator Tom Udall et al. to the Privacy and Civil Liberties Oversight Board Dune 12. 

2013). available athttp://www.pc1ob.gov;' 

10 See Letter from Democratic Leader Nancy Pelosi to Chairman David Medine Duly 11. 2013), available 

athttp://www.pc1ob.gov!; Remarks by the President in a Press Conference atthe White House (Aug. 9, 

2013), available at http://www. whitehouse.gov !the-press-office!2 013! 08!09 !remarks-president-pressconference. 

11 Prior to my confirmation as chairman, the four part-time Board members already had identified 

implementation of the FISA Amendments Act as a priority for oversight. As a result, the Section 702 program 

already was familiar to the majority ofthe Board by June 2013. 

3 
55 

first panel addressed the legality of the programs, and included comments from a former 

FISA court judge regarding the operation of that court. Because technological issues are 

central to the operations of both programs, the second panel was comprised of technology 

experts. The third panel included academics and members of the advocacy community; 

panelists were invited to provide views on the policy implications of the NSA programs and 

what changes, if any, would be appropriate. 

As the Board's study of the NSA surveillance programs moved forward, the Board 

began to consider possible recommendations for program changes. At the same time, the 

Board wanted to try to identify any unanticipated consequences of reforms it was 

considering. Accordingly, on November 4,2013, the Board held a public hearing in 

Washington, D.C. The hearing began with a panel of current government officials who 

addressed the value of the programs and the potential impact of proposed changes. The 

second panel, designed to explore the operation of the FISA court, consisted of another 

former FISC judge, along with a former government official and a private attorney who 

both had appeared before the FISC. Finally, the Board heard from a diverse panel of experts 

on potential Section 215 and 702 reforms.12 

Based on the information and input made available to the Board, we conducted a 

detailed analysis of applicable statutory authorities, the First and Fourth Amendments to 

the Constitution, and privacy and civil liberties policy issues raised by the Section 215 

program. The Board provided its draft description ofthe operation of the FISA court (but 

not our recommendations) to the court's staff to ensure that this description accurately 

portrayed the court's processes. The Board also provided draft portions of its analysis 

regarding the effectiveness ofthe Section 215 program (but not our conclusions and 

recommendations) to the U.S. Intelligence Community to ensure that our factual statements 

were correct and complete. While the Board's report was subject to classification review, 

none of the changes resulting from that process affected our analysis or recommendations. 

There was no outside review of the substance of our analysis or recommendations. 

During the time that the PCLOB was conducting its study, members of Congress 

introduced a variety oflegislative proposals to address the Section 215 and 702 programs, 

and the executive branch simultaneously was engaging in several internal reviews of the 

programs. To ensure that the PCLOB's recommendations would be considered as part of 

this ongoing debate, the Board divided its study into two separate reports. The first report, 

issued on January 23, 2014, covers the PCLOB's analysis and recommendations concerning 

operation of the Section 215 program and the FISA court. The second report, which also 

12 Transcripts of the Board's July 2013 public workshop and its November 2013 public hearing are 

available at http://www.pclob.gov ;. 

4 
56 

will be public and unclassified,13 will contain the PCLOB's analysis and recommendations 

concerning the Section 702 program. 

Proposals for modifications to the Section 215 program and the operation ofthe 

FISA court also were under active consideration by the White House while we were 

conducting our study. Pursuant to the Board's statutory duty to advise the President and 

elements of the executive branch to ensure that privacy and civil liberties are appropriately 

considered in the development and implementation oflegislation and policies, and to 

provide advice on proposals to retain or enhance a particular counterterrorism power, the 

PCLOB briefed senior White House staff on the Board's tentative conclusions on December 

5,2013. We provided a near-final draft of the Board's conclusions and recommendations 

on Section 215 and the operations ofthe FISA court to the White House on January 3, 2014. 

On January 8, the full Board met with the President, the Vice President, and senior officials 

to present the Board's conclusions and the views of individual Board members. 

Our first report consists of seven sections, five of which address the Section 215 

telephone records program. The report begins by describing in detail how the program 

works. To put the present-day operation of the program in context, the report also recounts 

its history, including its evolution from predecessor intelligence activities. Turning to the 

Board's analysis, the report then addresses whether the telephone records program is 

consistent with applicable statutory requirements. It then addresses the constitutional 

issues raised by the program under both the First and Fourth Amendments. Finally, the 

report examines the potential benefits of the Section 215 program, its efficacy in achieving 

its purposes, and the impact of the program on privacy and civil liberties, before presenting 

the Board's conclusion that reforms are needed. 

In addition to examining the Section 215 program, the Board's report also addresses 

the operations of the FISA court, proposing a new approach that, in appropriate cases, 

would allow the judges serving on that court to hear from a Special Advocate. The final 

section of the report addresses the issue of transparency as it relates to government 

surveillance activities. The report also includes separate statements by Board members 

Rachel Brand and Elisebeth Collins Cook. Although these two members joined in ten of the 

twelve recommendations made in the report, as outlined below, they wrote separately to 

explain their disagreement with the remaining two recommendations and with some of the 

Board's analysis. 

While the Board's report includes a number of detailed conclusions and 

recommendations, it does not purport to answer all questions. The Board welcomes the 

13 It is possible that the report on the Section 702 program will also include a classified annex. 

5 
57 

opportunity for further dialogue within the executive branch and with Congress about the 

issues raised in its report and how best to implement the Board's recommendations. 

IV. The Board's Findings and Analysis 

A. Background: Description and History of the Section 215 Program 

The NSA's telephone records program is operated under an order issued by the FISA 

court pursuant to Section 215 of the Patriot Act, an order that is renewed approximately 

every ninety days. The program is intended to enable the governmentto identify 

communications among known and unknown terrorism suspects, particularly those 

located inside the United States. When the NSA identifies communications that may be 

associated with terrorism, it issues intelligence reports to other federal agencies, such as 

the FBI, that work to prevent terrorist attacks. The FISC order authorizes the NSA to collect 

nearly all call detail records generated by certain telephone companies in the United States, 

and specifies detailed rules for the use and retention ofthese records. Call detail records 

typically include much of the information that appears on a customer's telephone bill: the 

date and time of a call, its duration, and the participating telephone numbers. Such 

information is commonly referred to as a type of "meta data." The records collected by the 

NSA under this program do not, however, include the content of any telephone 

conversation. 

After collecting these telephone records, the NSA stores them in a centralized 

database. Initially, NSA analysts are permitted to access the Section 215 calling records 

only through "queries" ofthe database. A query is a search for a specific number or other 

selection term within the database. Before any specific number is used as the search target 

or "seed" for a query, one of twenty-two designated NSA officials must first determine that 

there is a reasonable, articulable suspicion ("RAS") that the number is associated with 

terrorism. Once the seed has been RAS-approved, NSA analysts may run queries that will 

return the calling records for that seed, and conduct "contact chaining" to develop a fuller 

picture ofthe seed's contacts. Contact chaining enables analysts to retrieve not only the 

numbers directly in contact with the seed number (the "first hop"), but also numbers in 

contact with all first hop numbers (the "second hop"), as well as all numbers in contact with 

all second hop numbers (the "third hop"). 

In 2012, the FISA court approved a new and automated method of performing 

queries, one that is associated with a new infrastructure implemented by the NSA to 

6 
58 

process its calling records.i4 The essence of this new process is that, instead of waiting for 

individual analysts to perform manual queries of particular selection terms that have been 

RAS approved, the NSA's database periodically performs queries on all RAS-approved seed 

terms, up to three hops away from the approved seeds. The database places the results of 

these queries together in a repository called the "corporate store." The ultimate result of 

the automated query process is a repository, the corporate store, containing the records of 

all telephone calls that are within three "hops" of every currently approved selection 

term.iS 

The Section 215 telephone records program has its roots in counterterrorism efforts 

that originated in the immediate aftermath of the September 11 attacks. The NSA began 

collecting telephone metadata in bulk as one part of what became known as the President's 

Surveillance Program. From late 2001 through early 2006, the NSA collected bulk 

telephony metadata based upon presidential authorizations issued every thirty to forty-five 

days. In May 2006, the FISC first granted an application by the government to conduct the 

telephone records program under Section 215.16 The government's application relied 

heavily on the reasoning of a 2004 FISA court opinion and order approving the bulk 

collection of Internet metadata under a different provision of FISA,17 

On June 5, 2013, the British newspaper The Guardian published an article based on 

unauthorized disclosures of classified documents by Edward Snowden, a contractor for the 

NSA, which revealed the telephone records program to the public. On August 29,2013, FISC 

Judge Claire Eagan issued an opinion explaining the court's rationale for approving the 

Section 215 telephone records program. 1S Although prior authorizations of the program 

had been accompanied by detailed orders outlining applicable rules and minimization 

procedures, this was the first judicial opinion explaining the FISA court's legal reasoning in 

authorizing the bulk records collection. The Section 215 program was reauthorized most 

recently by the FISC on January 3, 2014. 

Over the years, a series of compliance issues were brought to the attention of the 

FISA court by the government. However, none of these compliance issues involved 

significant intentional misuse of the system. N or has the Board seen any evidence of bad 

faith or misconduct on the part of any government officials or agents involved with the 

14 This "automated query process" was first approved for use by the FISA court in late 2012. Primary 

Order at 11 n.ll. 

15 See Primary Order at 11. 

16 See Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things, No. BR 06-05 (FISA Ct May 24, 2006). 

17 See Opinion and Order, No. PRITT [redacted] (FISA Ct.). 

In See Amended Memorandum Opinion, In re Application of the Federal Bureau of Investigation for an 

Order Requiring the Production of Tangible Things, No. BR 13-109 (FISA Ct. Aug. 29, 2013). 

7 
59 

program. 19 Rather, the compliance issues were recognized by the FISC - and are 

recognized by the Board - as a product of the program's technological complexity and vast 

scope, illustrating the risks inherent in such a program. 

B. Statutory and Constitutional Considerations Regarding the Section 215 

Program 

The Board has concluded that Section 215 of the Patriot Act does not provide an 

adequate legal basis to support the NSA's bulk telephone records program. Section 215 is 

designed to enable the FBI to acquire records that a business has in its possession, as part 

of an FBI investigation, when those records are relevant to the investigation. Yet the 

operation of the NSA's bulk telephone records program bears almost no resemblance to 

that description. While the Board believes that this program has been conducted in good 

faith to vigorously pursue the government's counterterrorism mission and appreciates the 

government's efforts to bring the program under the oversight ofthe FISA court, it 

concludes that the program is not authorized by Section 215. 

There are four grounds upon which we have concluded that the NSA's program fails 

to comply with Section 215. First, the telephone records acquired under the program have 

no connection to any specific FBI investigation at the time of their collection. Second, 

because the records are collected in bulk - potentially encompassing all telephone calling 

records across the nation - they cannot be regarded as "relevant" to any FBI investigation 

as required by the statute without redefining that word in a manner that is circular, 

unlimited in scope, and out of step with the case law from analogous legal contexts 

involving the production of records. Third, the program operates by putting telephone 

companies under an obligation to furnish new calling records on a daily basis as they are 

generated (instead of turning over records already in their possession) - an approach 

lacking foundation in the statute and one that is inconsistent with FISA as a whole. Fourth, 

the statute permits only the FBI to obtain items for use in its investigations; it does not 

authorize the NSA to collect anything. 

In addition, we conclude that the program violates the Electronic Communications 

Privacy Act. That statute prohibits telephone companies from sharing customer records 

with the government except in response to specific enumerated circumstances, which do 

not include Section 215 orders. 

" Neither has the Board seen any evidence that would suggest any telephone providers did not rely in 

good faith on orders of the FISC when producing metadata to the government 

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Finally, we do not agree that the NSA's program can be considered statutorily 

authorized because Congress twice delayed the expiration date of Section 215 during the 

operation of the program without amending the statute. The "reenactment doctrine," under 

which Congress is presumed to have adopted settled administrative or judicial 

interpretations of a statute, does not trump the plain meaning of a law, and cannot save an 

administrative or judicial interpretation that contradicts the statute itself. Moreover, the 

circumstances presented here differ in pivotal ways from any in which the reenactment 

doctrine has ever been applied, and applying the doctrine here would undermine the 

public's ability to know what the law is and hold their elected representatives accountable 

for their legislative choices. 

The Board also believes that the NSA's bulk telephone records program raises 

concerns under both the First and Fourth Amendments to the United States Constitution. 

Our report explores those concerns, explaining that while government officials are entitled 

to rely on existing Supreme Court doctrine in formulating policy, the existing doctrine does 

not fully answer whether the Section 215 program is constitutionally sound. In particular, 

the scope and duration ofthe program are beyond anything ever before confronted by the 

courts, and as a result oftechnological developments, the government possesses 

capabilities to collect, store, and analyze data not available when existing Supreme Court 

doctrine was developed. Without seeking to predict the direction of changes in that 

doctrine, the Board urges as a policy matter that the government consider how to preserve 

underlying constitutional guarantees in the face of modern communications technology 

and surveillance capabilities. 

C. Policy Considerations Regarding the Section 215 Program 

The Section 215 telephone records program was intended to function as a unique 

tool to help combat the very real threat of terrorism faced today by the United States - a 

tool that, it was hoped, would help investigators piece together the networks of terrorist 

groups and the patterns of their communications with a speed and comprehensiveness not 

otherwise available. However, the Board has concluded thatthe program has shown only 

minimal value in safeguarding the nation from terrorism. Based on the information 

provided to the Board, including classified briefings and documentation, we have not 

identified a single instance involving a threat to the United States in which the program 

made a concrete difference in the outcome of a counterterrorism investigation. Moreover, 

the Board is aware of no instance in which the program directly contributed to the 

discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. And 

we believe that in only one instance over the past seven years has the program arguably 

contributed to the identification of an unknown terrorism suspect (a suspect who was not 

involved in planning a terrorist attack, and who might have been discovered by the FBI 

without the contribution of the NSA's program). 

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The Board's review suggests that where the telephone records collected by the NSA 

under its Section 215 program have provided value, they have done so primarily in two 

ways: by offering additional leads regarding the contacts of terrorism suspects already 

known to investigators, and by demonstrating that foreign terrorist plots do not have a U.S. 

nexus. While the former can help investigators confirm suspicions about the target of an 

inquiry or about persons in contact with that target, our review suggests that the Section 

215 program offers little unique value but largely duplicates the FBI's own informationgathering efforts. And while eliminating a U.S. nexus to foreign plots can help the 

intelligence community focus its limited investigatory resources in time-sensitive 

situations by channeling efforts where they are needed most, our report questions whether 

the American public should accept the government's routine collection of all of its 

telephone records because it helps in cases where there is no threat to the United States. 

The Board also has analyzed the implications of the Section 215 program for privacy 

and civil liberties and has concluded that these implications are serious. Because telephone 

calling records can reveal intimate details about a person's life, particularly when 

aggregated with other information and subjected to sophisticated computer analysis, the 

government's collection of a person's entire telephone calling history has a significant and 

detrimental effect on individual privacy. The circumstances of a particular call can be 

highly suggestive of its content, such that the mere record of a call potentially offers a 

window into the caller's private affairs. Moreover, when the government collects all of a 

person's telephone records, storing them for five years in a government database that is 

subject to high-speed digital searching and analysis, the privacy implications go far beyond 

what can be revealed by the metadata of a single telephone call. 

Beyond such individual privacy intrusions, permitting the government to routinely 

collect the calling records of the entire nation fundamentally shifts the balance of power 

between the state and its citizens. With its powers of compulsion and criminal prosecution, 

the government poses unique threats to privacy when it collects data on its own citizens. 

Government collection of personal information on such a massive scale also courts the 

ever-present danger of "mission creep." An even more compelling danger is that personal 

information collected by the government will be misused to harass, blackmail, or 

intimidate, or to single out for scrutiny particular individuals or groups. While the danger 

of such abuse may seem remote today - we have seen no indication that anything ofthis 

sort is occurring at the NSA20 - the risk is more than merely theoretical, given the history 

ofthe government's abuse of personal information during the twentieth century. 

20 The Board's report emphasizes that we have seen no evidence suggesting that the NSA is misusing 

the telephone records it acquires under this program for any purpose other than legitimate efforts to combat 

terrorism. The agency's incidents of non-compliance with the rules approved by the FISA court have generally 

involved unintentional mistakes resulting from the scope and complexity of the program. 

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Furthermore, the government's bulk collection of telephone records can be expected 

to have a chilling effect on the free exercise of speech and association, because individuals 

and groups engaged in sensitive or controversial work have less reason to trust in the 

confidentiality of their relationships as revealed by their calling patterns. Inability to expect 

privacy vis-a-vis the government in one's telephone communications means that people 

engaged in wholly lawful activities - but who for various reasons justifiably do not wish 

the government to know about their communications - must either forgo such activities, 

reduce their frequency, or take costly measures to hide them from government 

surveillance. The telephone records program thus hinders the ability of advocacy 

organizations to communicate confidentially with members, donors, legislators, 

whistle blowers, members ofthe public, and others. For similar reasons, awareness that a 

record of all telephone calls is stored in a government database may have debilitating 

consequences for communication between journalists and sources. 

Detailed rules limit the NSA's use of the telephone records it collects, and the 

Board's report describes them at length. But while those rules offer many valuable 

safeguards designed to curb the intrusiveness of the program, in the Board's view they 

cannot fully ameliorate the implications for privacy, speech, and association that follow 

from the government's ongoing collection of virtually all telephone records of every 

American. 

Any governmental program that entails such costs to privacy and civil liberties 

requires a strong showing of efficacy. As the 9/11 Commission recommended: "The burden 

of proof for retaining a particular governmental power should be on the executive, to 

explain," among other things, "that the power actually materially enhances security."21 The 

Board has concluded that the NSA telephone records program conducted under Section 

215 does not meet that standard, and that its modest contribution to counterterrorism 

efforts is outweighed by its implications for privacy, speech, and association. 

D. Issues Concerning Operation ofthe Foreign Intelligence Surveillance 

Court and Transparency of Surveillance Programs 

The Board's report also addresses the operation of the FISA court. The FISA court 

was created by the Foreign Intelligence Surveillance Act of 1978 ("FISA"), to provide a 

procedure under which the Attorney General could obtain a judicial warrant authorizing 

the use of electronic surveillance in the United States for foreign intelligence purposes. 

Over time, the scope ofFISA and the jurisdiction of the FISA court have evolved. Initially, 

the FISC's sole role was to approve individualized FISA warrants for electronic surveillance 

relating to a specific person, a specific place, or a specific communications account or 

21 9/11 Commission Report, supra, at 394-95. 

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device. Beginning in 2004, the role of the FISC changed when the government approached 

the court with its first request to approve a program involving what is now referred to as 

"bulk collection." In conducting this study, the Board was told by former FISA court judges 

that they were quite comfortable hearing only from government attorneys when evaluating 

individual surveillance requests but that the judges' decision-making would be greatly 

enhanced if they could hear opposing views when ruling on requests to establish new 

surveillance programs. 

The classified and ex parte nature of the court's proceedings have raised concerns 

that it does not take adequate account of positions other than those of the government. But 

it is critical to the integrity of the court's process that the public have confidence in its 

impartiality and rigor. Therefore, the Board believes that some reforms are appropriate 

and would help bolster public confidence in the operation of the court. The most important 

reforms proposed by the Board are: (1) creation of a panel of private attorneys (or "Special 

Advocates") who can be brought into cases involving novel and significant issues by FISA 

court judges; (2) development of a process facilitating appellate review of FISA court 

decisions; and (3) increased opportunity for the FISA court to receive technical assistance 

and legal input from outside parties. We believe that our proposal successfully ensures the 

ability of the court to hear opposing views while not disrupting the court's operation or 

raising constitutional concerns about the role of the advocate. 

Finally, our report discusses transparency - the tension between the competing 

imperatives of openness and secrecy, and the challenges of developing and implementing 

intelligence programs in ways that serve both values. Beyond the controversies that have 

arisen from the Section 215 and 702 programs, the Board believes that the government 

must take the initiative and formulate long-term solutions that promote greater 

transparency for government surveillance policies in order to inform public debate on 

technology, national security, and civil liberties. In this effort, all three branches have a role. 

For the executive branch, disclosures about key national security programs that 

involve the collection, storage, and dissemination of personal information - such as the 

operation of the National Counterterrorism Center - show that it is possible to describe 

secret practices and policies publicly without damage to national security or operational 

effectiveness. With regard to the legislative process, even where classified intelligence 

operations are involved, the purposes and framework of a program for domestic 

intelligence collection should be debated in public. While some hearings and briefings may 

need to be conducted in secret during the process of developing legislation, to ensure that 

policymakers fully understand the intended use of a particular authority, the government 

should not base an ongoing program affecting the rights of Americans on an interpretation 

of a statute that is not apparent from a natural reading of the text. In the case of Section 

215, for instance, the government should have made it publicly clear during the 

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reauthorization process that occurred in 2006 that it intended for Section 215 to serve as 

legal authority to collect data in bulk on an ongoing basis. 

There also is a need for greater transparency in the operations ofthe FISA court. 

Prospectively, we encourage the judges on the court to continue the recent practice of 

writing opinions with an eye toward declassification, separating sensitive facts particular 

to the case at hand from broader legal analyses. The Board also believes that there is 

significant value in producing declassified versions of earlier FISA court opinions, and it 

recommends that the government undertake a classification review of all significant FISA 

court opinions and orders involving novel interpretations of law. We realize that the 

process of redacting opinions not drafted for public disclosure will be difficult and will 

burden individuals with other pressing duties, but we believe that it is appropriate to make 

the effort where those opinions and orders complete the historical picture of the 

development oflegal doctrine regarding matters within the jurisdiction of the court. In 

addition, should the government adopt our recommendation for a Special Advocate in the 

FISA court, the nature and extent of that advocate's role must be transparent to be 

effective. 

It is also important to promote transparency through increased reporting to the 

public on the scope of surveillance programs. The Board's report urges the government to 

work with Internet service providers and other companies to reach agreement on 

standards allowing reasonable disclosures of aggregate statistics that would be meaningful 

without revealing sensitive government capabilities or tactics. We note that the 

government recently announced an agreement with providers as a step in this direction. 

We recommend that the government should also increase the level of detail in its 

unclassified reporting to Congress and the public regarding surveillance programs. 

V. The Board's Recommendations 

Based upon the findings and analysis described above, the PCLOB has made twelve 

specific recommendations regarding the Section 215 telephone records program, the 

operation of the FISA court, and transparency in intelligence activities. Ten ofthose 

recommendations are unanimous, as discussed further below. The Board's 

recommendations can be summarized as follows. 

Recommendation 1: The government should end its Section 215 bulk 

telephone records program. 

The Section 215 bulk telephone records program lacks a viable legal foundation 

under Section 215, implicates constitutional concerns under the First and Fourth 

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Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has 

shown only limited value. As a result, the Board recommends that the government end the 

program. 

Without the current Section 215 program, the government would still be able to 

seek telephone calling records directly from communications providers through other 

existing legal authorities. The Board does not recommend that the government impose data 

retention requirements on providers in order to facilitate any system of seeking records 

directly from private databases. 

Once the Section 215 bulk collection program has ended, the government should 

purge the database of telephone records that have been collected and stored during the 

program's operation, subject to limits on purging data that may arise under federal law or 

as a result of any pending litigation. 

The Board also recommends against the enactment of legislation that would merely 

codify the existing program or any other program that collects bulk data on such a massive 

scale regarding individuals with no suspected ties to terrorism or criminal activity. 

Moreover, the Board's constitutional analysis should provide a message of caution, and as a 

policy matter, given the significant privacy and civil liberties interests at stake, if Congress 

seeks to provide legal authority for any new program, it should seek the least intrusive 

alternative and should not legislate to the outer bounds of its authority. 

The Board recognizes that the government may need a short period of time to 

explore and institutionalize alternative approaches, and believes it would be appropriate 

for the government to wind down the 215 program over a brief interim period. If the 

government does find the need for a short wind-down period, the Board urges that it 

should follow the procedures under Recommendation 2 below. 

Recommendation 2: The government should immediately implement 

additional privacy safeguards in operating the Section 215 bulk collection 

program. 

The Board recommends that the government immediately implement several 

additional privacy safeguards to mitigate the privacy impact of the present Section 215 

program. The recommended changes can be implemented without any need for 

congressional or FISC authorization. Specifically, the government should: 

(a) reduce the retention period for the bulk telephone records program from five 

years to three years; 

(b) reduce the number of "hops" used in contact chaining from three to two; 

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(c) submitthe NSA's "reasonable articulable suspicion" determinations to the 

FISC for review after they have been approved by NSA and used to query the 

database; and 

(d) require a "reasonable articulable suspicion" determination before analysts 

may submit queries to, or otherwise analyze, the "corporate store," which 

contains the results of contact chaining queries to the full "collection store." 

Recommendation 3: Congress should enact legislation enabling the FISC to 

hear independent views, in addition to the government's views, on novel and 

significant applications and in other matters in which a FISC judge determines 

that consideration of the issues would merit such additional views. 

Congress should authorize the establishment of a panel of outside lawyers to serve 

as Special Advocates before the FISC in appropriate cases. The presiding judge of the FISC 

should select attorneys drawn from the private sector to serve on the panel. The attorneys 

should be capable of obtaining appropriate security clearances and would then be available 

to be called upon to participate in certain FISC proceedings. 

The decision as to whether the Special Advocate would participate in any particular 

matter should be left to the discretion of the FISC. The Board expects that the court would 

invite the Special Advocate to participate in matters involving interpretation of the scope of 

surveillance authorities, other matters presenting novel legal or technical questions, or 

matters involving broad programs of collection. The role of the Special Advocate, when 

invited by the court to participate, would be to make legal arguments addressing privacy, 

civil rights, and civil liberties interests. The Special Advocate would review the 

government's application and exercise his or her judgment about whether the proposed 

surveillance or collection is consistent with law or unduly affects privacy and civil liberties 

interests. 

Recommendation 4: Congress should enact legislation to expand the 

opportunities for appellate review of FISC decisions by the Foreign 

Intelligence Surveillance Court of Review, and for review of those decisions by 

the Supreme Court ofthe United States. 

Providing for greater appellate review of rulings by the FISC and by its companion 

appellate court, the Foreign Intelligence Surveillance Court of Review ("FISCR"), will 

strengthen the integrity of judicial review under FISA. Providing a role for the Special 

Advocate in seeking that appellate review will further increase public confidence in the 

integrity ofthe process. 

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Recommendation 5: The FISC should take full advantage of existing authorities 

to obtain technical assistance and expand opportunities for legal input from 

outside parties. 

FISC judges should take advantage of their ability to appoint Special Masters or 

other technical experts to assist them in reviewing voluminous or technical materials, 

either in connection with initial applications or in compliance reviews. In addition, the FISC 

and the FISCR should develop procedures to facilitate amicus participation by third parties 

in cases involving questions that are of broad public interest, where it is feasible to do so 

consistent with national security. 

Recommendation 6: To the maximum extent consistent with national security, 

the government should create and release with minimal redactions 

declassified versions of new decisions, orders and opinions by the FISC and 

FISCR in cases involving novel interpretations of FISA or other significant 

questions of law, technology or compliance. 

FISC judges should continue their recent practice of drafting opinions in cases 

involving novel issues and other significant decisions in the expectation that declassified 

versions will be released to the public. The government should promptly create and release 

declassified versions of these FISC opinions. 

Recommendation 7: Regarding previously written opinions, the government 

should perform a declassification review of decisions, orders and opinions by 

the FISC and FISCR that have not yet been released to the public and that 

involve novel interpretations of FISA or other significant questions of law, 

technology or compliance. 

Although it may be more difficult to declassify older FISC opinions drafted without 

expectation of public release, the release of such older opinions is still important to 

facilitate public understanding of the development of the law under FISA. The government 

should create and release declassified versions of older opinions in novel or significant 

cases to the greatest extent possible consistent with protection of national security. This 

should cover programs that have been discontinued, where the legal interpretations 

justifying such programs have ongoing relevance. 

Recommendation 8: The Attorney General should regularly and publicly 

report information regarding the operation of the Special Advocate program 

recommended by the Board. This should include statistics on the frequency 

and nature of Special Advocate participation in FISC and FISCR proceedings. 

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These reports should include statistics showing the number of cases in which a 

Special Advocate participated, as well as the number of cases identified by the government 

as raising a novel or significant issue, but in which the judge declined to invite Special 

Advocate participation. The reports should also indicate the extent to which FISC decisions 

have been subject to review in the FISCR and the frequency with which Special Advocate 

requests for FISCR review have been granted. 

Recommendation 9: The government should work with Internet service 

providers and other companies that regularly receive FISA production orders 

to develop rules permitting the companies to voluntarily disclose certain 

statistical information. In addition, the government should publicly disclose 

more detailed statistics to provide a more complete picture of government 

surveillance operations. 

The Board urges the government to pursue discussions with communications 

service providers to determine the maximum amount of information that companies could 

voluntarily publish to show the extent of government surveillance requests they receive 

per year in a way that is consistent with protection of national security. In addition, the 

government should itself release annual reports showing in more detail the nature and 

scope of FISA surveillance for each year. 

Recommendation 10: The Attorney General should fully inform the PCLOB of 

the government's activities under FISA and provide the PCLOB with copies of 

the detailed reports submitted under FISA to the specified committees of 

Congress. This should include providing the PCLOB with copies of the FISC 

decisions required to be produced under Section 601(a)(5).22 

Recommendation 11: The Board urges the government to begin developing 

principles and criteria for transparency. 

The Board urges the Administration to commence the process of articulating 

principles and criteria for deciding what must be kept secret and what can be released as to 

existing and future programs that affect the American public. 

Recommendation 12: The scope of surveillance authorities affecting 

Americans should be public. 

In particular, the Administration should develop principles and criteria for the 

public articulation of the legal authorities under which it conducts surveillance affecting 

22 Section 601(a)(5), which is codified at 50 U.S.C. § 1871(a)(5), requires the congressional intelligence 

and judiciary committees to be provided with decisions, orders, and opinions from the FISC, and from its 

companion appellate court, that include significant construction or interpretation of FISA provisions. 

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Americans. If the text of the statute itself is not sufficient to inform the public ofthe scope 

of asserted government authority, then the key elements of the legal opinion or other 

documents describing the government's legal analysis should be made public so there can 

be a free and open debate regarding the law's scope. This includes both original enactments 

such as 215's revisions and subsequent reauthorizations. While sensitive operational 

details regarding the conduct of government surveillance programs should remain 

classified, and while legal interpretations of the application of a statute in a particular case 

may also be secret, the government's interpretations of statutes that provide the basis for 

ongoing surveillance programs affecting Americans can and should be made public. 

VI. Minority Views 

While ten ofthe Board's twelve recommendations are unanimous, two are not. 

Board members Rachel Brand and Elisebeth Collins Cook did not join Recommendation 1 

(that the government end its Section 215 bulk telephone records program) or 

Recommendation 12 (that the scope of surveillance authorities affecting Americans be 

made public). In addition, Ms. Brand and Ms. Cook did not join the Board's statutory or 

constitutional analysis. Both members explained their views in separate statements that 

are incorporated in the Board's report.23 

Ms. Brand and Ms. Cook both reached a different judgment than did the Board 

majority about how the value of the program weighs against its implications for privacy 

and civil liberties. Ms. Brand stressed that the usefulness ofthe program "may not be fully 

realized until we face another large-scale terrorist plot against the United States or our 

citizens abroad," and that "ifthat happens, analysts' ability to very quickly scan historical 

records from multiple service providers to establish connections (or avoid wasting 

precious time on futile leads) could be critical in thwarting the plot."24 Ms. Cook 

emphasized the value of a tool that allows investigators to "triage and focus on those who 

are more likely to be doing harm to or in the United States," "more fully understand our 

adversaries in a relatively nimble way," and "verify and reinforce intelligence gathered 

from other programs or tooIS."25 

With respect to potential intrusions on privacy and civil liberties, Ms. Brand and Ms. 

Cook emphasized that the NSA does not acquire the contents of telephone calls or any 

personally identifying information about callers under this program, as well as the strict 

" See Separate Statement by Board Member Rachel Brand Uan. 23. 2014) ("Brand Statement"). and 

Separate Statement by Board Member Elisebeth Collins Cook Uan. 23. 2014) ("Cook Statement"). available at 

http://www.pclob.gov;' Both statements are included as annexes to the Board's report. 

24 Brand Statement at 5-6. 

25 Cook Statement at 4. 

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safeguards and limitations governing the NSA's use of the records it obtains. While agreeing 

that certain additional privacy safeguards nevertheless are warranted (spelled out in the 

Board's second recommendation), in their judgment the value of the program, with those 

safeguards in place, outweighs its intrusions on privacy and civil liberties. Ms. Brand, 

however, noted that "if an adequate alternative that imposes less risk of privacy intrusions 

can be identified, the government should adopt it,"26 and Ms. Cook recommended that the 

Intelligence Community devise "metrics for assessing the efficacy and value of intelligence 

programs, particularly in relation to other tools and programs," as well as conduct periodic 

assessments to gauge the relative value of such programs,27 

Ms. Brand and Ms. Cook also declined to join the Board's legal conclusion that the 

bulk telephone records program is unauthorized by Section 215 of the Patriot Act. They 

concluded that the government's interpretation of the statute is "at least a reasonable 

reading, made in good faith by numerous officials in two Administrations of different 

parties," as Ms. Brand put it,28 representing "a good faith effort to subject a potentially 

controversial program to both judicial and legislative oversight," as Ms. Cook put it,29 and 

stressed that the government's interpretation has been upheld by numerous Article III 

judges. 

With respect to Recommendation 12 (regarding transparency in the scope of 

surveillance authorities affecting Americans), Ms. Brand explained that she does not 

believe "that an intelligence program or legal justification for it must necessarily be known 

to the public to be legitimate or lawful."3o Ms. Cook similarly expressed her view that in a 

representative democracy "it is simply not the case that a particular use or related 

understanding of a statutory authorization is illegitimate unless it has been explicitly 

debated in an open forum."31 

While the majority of the Board did not obtain unanimity on these two 

recommendations (among twelve recommendations overall), it believes that the reasoned 

and transparent disagreement on those points reflected in the Board's report and its 

minority statements can assist the Administration, Congress, and the public as they debate 

the future of our nation's surveillance practices. 

26 Brand Statement at 6. 

D Cook Statement at 4. 2n Brand Statement at 3. 29 Cook Statement at 2. 10 Brand Statement at 2. 31 Cook Statement at 4. 

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VII. Conclusion 

Thank you for the opportunity to testify before the House Judiciary Committee 

today regarding the Board's report. As already noted, the Board welcomes the opportunity 

for further dialogue within the executive branch and with Congress about the issues raised 

in its report and how best to implement the Board's recommendations. 

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Mr. GOODLATTE. Thank you, Mr. Medine. 

I will begin the questioning and will start with Deputy Attorney 

General Cole. Both the PCLOB and the review group have questioned the value of the bulk metadata program. Congress has been 

waiting for a long time for the Administration to explain exactly 

why bulk collection is crucial to national security. 

So, Deputy Attorney General Cole, this is the Administration’s 

opportunity to explain to Congress why bulk collection, as opposed 

to other intelligence measures, is necessary to protect our citizens. 

Mr. JAMES COLE. Well, Mr. Chairman, I think to understand 

this, we first have to understand the value of trying to make the 

connections, connect the dots between people who we know are involved in terrorist activity or have reasonable, articulable suspicion 

to believe are, and the other people that they may be acting with, 

both inside and outside of the United States. 

That’s a very useful tool. It’s not the only piece of evidence you 

would need in an investigation. And in fact, in my years as a prosecutor, there is rarely one piece of evidence that makes the case. 

It’s a whole fabric of evidence that’s woven together, small pieces 

that relate to each other that become useful once they’re compared 

with and connected with many others. 

This is a tool that gives us one of those pieces of information, the 

connections from one person to another. And in order to be able to 

get it in a useful way, the initial view and the most expeditious 

way to do it was to have the bulk collection of the mass of telephone records with significant restrictions on how we could access 

it. 

So that we could, when we find a phone number associated with 

a certain terrorist group, we can search through the other records 

and find those connections. Now we can find other ways, and we 

are finding other ways to try and approximate and gain that same 

kind of information. 

Mr. GOODLATTE. Let me ask you about one subset of that that 

is very, very important and seems to be the thing that concerns 

many people the most. The President’s review group has recommended that the storage of bulk metadata be transferred to a 

third party or to company storage. The President also indicated 

that it is his preference as well. 

How does third-party storage protect Americans’ privacy more 

than Government storage, and does the President have additional 

ideas for reform beyond third-party storage? 

Mr. JAMES COLE. Well, Mr. Chairman, we’re trying to work 

through the best way to go about this, and the President has given 

us this direction, and we are looking for all the possible alternatives. The President’s review group made that recommendation. 

The PCLOB noted that there are issues with all of the different alternatives that you can use here. 

I think one of the issues that comes to mind is that the Government has certain powers that private groups don’t have, and there 

is a concern among the American people when the Government has 

possession of all of those records and the powers that go with the 

Government, that they would prefer that the Government not have 

those records, that some private party have them. 
73 

Obviously, we need to make sure that strict controls are put on, 

as they were when the Government possessed the bulk data, to 

make sure that they’re not abused. And it’s very, very important 

to make sure that those strict controls, as had been done under the 

bulk collection, are continued regardless of where these records reside. 

Mr. GOODLATTE. Let me ask you one follow up to that. That is 

really a critical question here. The third-party storage is really an 

idea that is still in progress. 

If the Administration finds that third-party storage is not a viable option, what would be the President’s recommendation for moving forward, continue the bulk collection program or ending it? 

Mr. JAMES COLE. I think that’s the process we’re going through 

right now. I don’t want to try and get too far ahead of it and hypothesize about where we may end up by the time we have to make 

recommendations to the President and he makes a decision. But 

obviously, the providers already—— 

Mr. GOODLATTE. You have heard the Ranking Member. There is 

legislation before the Committee. There are other legislative ideas 

than the one he referenced. But he and many others are chomping 

at the bit to move forward, and having the Administration’s position on this critical aspect of this is important. 

So we need to know the answer to that sooner rather than later. 

Mr. JAMES COLE. And we’re working on trying to get that answer, and we’ll provide it to you. The providers already keep these 

records for a certain period of time, and some keep it longer than 

what is required under regulations. 

And so, we have to work through what we think is the optimal 

period of time that the records need to be kept if there’s going to 

be a provider keeping it solution. 

Mr. GOODLATTE. And I want to direct one question to Mr. Medine 

before my time expires. The PCLOB majority recommends ending 

the bulk collection of telephony metadata under Section 215. The 

majority also recommends, however, that the program continue 

with certain modifications. 

Why did the majority not recommend the immediate end to the 

program? 

Mr. MEDINE. The majority looked to how other programs have 

been continued when, say, courts have struck them down. Even the 

Supreme Court has found programs unconstitutional and, nonetheless, gave the Government an opportunity to transition to a new 

program. 

And so, rather than shut it off, we felt we followed the approach 

that the courts have taken, which is to say let’s quickly transition 

into another program, either keeping the information with providers or some other mechanism as developed. 

Mr. GOODLATTE. Well, you are talking about courts in other cases 

because the court—— 

Mr. MEDINE. Nothing—not in this case. 

Mr. GOODLATTE. I haven’t heard them say that in this case. 

Mr. MEDINE. But we’ve looked at precedent of how, if a program 

has been found to be illegal or unconstitutional, courts oftentimes 

don’t just shut it down. They give an opportunity to transition, and 

we thought that—especially since we’re not a court, that it was rea-
74 

sonable to recommend that there be a period of transition, hopefully brief, to a different program. 

Mr. GOODLATTE. Thank you. 

The gentleman from Michigan, Mr. Conyers, is recognized for 5 

minutes. 

Mr. CONYERS. Thank you. 

And I thank the witnesses. 

I would like to begin by asking Mr. Medine about the telephone 

metadata program. Let us get right to it. Is the telephone metadata 

program consistent with the plain text of Section 215? 

Mr. MEDINE. Ranking Member Conyers, in the view of the majority of the board, it is not for a number of reasons. As I think you 

indicated in your statement, in many ways, it barely reflects the 

language of the statute. 

Mr. CONYERS. And it also makes it clear that it must be relevant, 

and relevant does not mean everything. And I think that that is 

a very important way for us to begin looking at this. 

Mr. Swire, the review group’s report proposes the Government 

only seek business records under Section 215 on a case-by-case 

basis. Why is targeted collection a preferable and sufficient alternative to bulk collection? 

Mr. SWIRE. Thank you, Congressman. 

The review group in many instances thinks that targeted collection to face serious threats is traditional law enforcement and national security practice. When you identify particular people who 

create risks, it’s wise to follow up on those. 

We also, on bulk collection, on 215 in particular, found that there 

had not been any case where it had been essential to preventing 

an attack. The review group did find, as a group, that there was 

usefulness in Section 215 bulk collection, and we thought that 

transitioning it away from Government holding of the data was 

better within our system of checks and balances than having it 

held by the Government. 

Mr. CONYERS. Thank you. 

The report also says that the Government should no longer hold 

telephone metadata. If the Government can only collect metadata 

with a particularized showing of suspicion and the Government 

cannot hold information in bulk, what is left of the telephone 

metadata program? 

Mr. SWIRE. Well, what’s left is similar to metadata in other circumstances. This Committee knows about trap and trace and pen 

register authorities, which are done under standards much less 

than probable cause. It’s much easier to get the metadata as step 

one to an investigation, and everything in our approach is consistent with using a judicial step, but a step with less than probable cause to go forward with the investigations. 

Mr. CONYERS. Mr. Deputy Attorney General, in his January 17th 

remarks, President Obama asked the Justice Department to develop options for a new approach that can match the capabilities 

and fill the gaps that the Section 215 program was designed to address without the Government holding this metadata itself. 

What range of options might we consider as alternatives to the 

Government storing this information, if your group has gotten that 

far in its work? 
75 

Mr. JAMES COLE. Well, certainly, Mr. Ranking Member, there are 

three options that come to mind just off the top of my head, which 

is—or two options. One is a third party who would gather all of the 

data together so that the access could be across providers, which 

was the—one of the efficient and effective aspects of the metadata 

bulk collection program. 

The other is to have the providers keep it. At this point, under 

regs, they’re required to keep it for about 18 months. It might require legislation, if we deem that not to be a sufficient amount of 

time, to require them to keep it longer. I don’t think they really 

favor that option. 

We’re also trying to think outside the box and see if there are 

any other options that we can come up with. There’s a lot of very 

talented and very capable people trying to think through this problem and trying to find whatever creative solutions we can. 

Mr. CONYERS. Thank you. 

And my last question is to Mr. Medine. Both your board and the 

review group find that the bulk collection program has never disrupted a terrorist—a terror plot. The report also closely examines 

the 12 cases in which the Government says the telephone metadata 

program has contributed to a success story in a counterterrorism 

investigation. 

What were those contributions, and do any of them to you justify 

a massive domestic call records database? 

Mr. MEDINE. Mr. Ranking Member, we have analyzed carefully 

all of the success stories and, as you indicate, did not find any instance in which a plot was disrupted or an unknown terrorist was 

identified. However, there are some aspects of the program that 

have produced some benefits. One, a material assistance case benefited from use of the 215 program. 

And there are also the ‘‘peace of mind’’ concept, which is sometimes it’s helpful to know there isn’t a U.S. connection to a potential plot that’s underway overseas. But we found in those and any 

other instances where the program had had successes, that those 

successes could have been replicated using other legal authorities 

without the need to collect bulk telephone metadata and all of the 

privacy and civil liberties problems associated with that collection. 

Mr. CONYERS. Mm-hmm. Thank you, Mr. Chairman. 

Mr. GOODLATTE. Thank you. 

The Chair recognizes the gentleman from Wisconsin, the Chairman of the Crime, Terrorism, Homeland Security, and Investigations Subcommittee, Mr. Sensenbrenner, for 5 minutes. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. 

I was the principal author of the PATRIOT Act that was signed 

by President Bush in 2001, and I also was the principal author of 

the two reauthorizations in 2006 and in 2011. Let me say that the 

revelations about Section 215 were a shock and that if the bulk collection program was debated by the Congress in each of these three 

instances, it never would have been approved. 

And I can say that without qualification. Congress never did intend to allow bulk collections when it passed Section 215, and no 

fair reading of the text would allow for this program. 

The PCLOB said, ‘‘The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates 
76 

constitutional concerns under the First and Fourth Amendments, 

raises serious threat to privacy and civil liberties as a policy matter, and has shown only limited value.’’ 

I agree with that. Now the Administration, the argument that 

they use under Section 215 is essentially that if the Administration 

and the intelligence community wants something, it is relevant. 

And that is not a limiting principle, which everybody thought relevant was, it is a vacuum cleaner, and that is why there has been 

such outrage, both here and overseas, that has impacted our intelligence community and also implicated the commercial relationship 

between us and foreign countries, particularly major trading partners in the European Union. 

And I am very worried about an intelligence review structure 

where the Administration and the FISCs could sanction this. That 

is why Mr. Conyers and I, together with a lot of Members equally 

divided between Republicans and Democrats, have sponsored the 

USA FREEDOM Act. 

We attempted to make the FREEDOM Act a balance between the 

civil liberties concerns that have been expressed in the last 7 

months, as well as the need to have an active intelligence operation. Now Section 215 expires in June of next year. And unless 

Section 215 is fixed, you, Mr. Cole, and the intelligence community 

will end up getting nothing because I am absolutely confident that 

there are not the votes in this Congress to reauthorize Section 215. 

Now the FREEDOM Act is the only piece of legislation that attempts to comprehensively address this problem in a way that I 

think will get the support of a majority of the Members of both the 

House and the Senate. The Feinstein bill I think is a joke because 

it basically prohibits bulk collection, except as authorized under a 

subsection, which authorizes the intelligence community to keep on 

doing business as usual. 

Mr. Cole, I think that we are smart enough to recognize that for 

what it is. And it is a joke. There hasn’t been anything else that 

has come from the Administration or elsewhere to deal with this 

issue, and the clock, sir, is a-ticking. And it is ticking rapidly, and 

this is going to have to be addressed in this year, even though it 

is an election year. 

Now will the Department of Justice, Mr. Cole, support the 

FREEDOM Act? And all I need is a ‘‘yes’’ or ‘‘no’’ answer. 

Mr. JAMES COLE. Uh—— 

Mr. SENSENBRENNER. Not ‘‘yes, but’’ or, ‘‘no, of course.’’ But ‘‘yes’’ 

or ‘‘no.’’ 

Mr. JAMES COLE. The Department of Justice is a big place, Senator, and at this point, we have not taken a position on the FREEDOM Act. We’d be more than happy to—— 

Mr. SENSENBRENNER. Well, then I—— 

Mr. JAMES COLE [continuing]. Work with you on that. 

Mr. SENSENBRENNER. Well, then—well, I haven’t seen any indication of that to date, and I would urge you to hurry up and to get 

the big place together. Because the FREEDOM Act are reasonable 

reforms that have been emphasized as necessary and responsible 

by both the PCLOB and the review panel. There is nothing else out 

there to fix this up. 
77 

So you have a choice between reaching something that will be 

supported by a majority of the Congress or letting the clock tick, 

and come June 1 of next year, there will be no authority for anything under Section 215. 

Now if the Administration has got problems with the Leahy-Sensenbrenner-Conyers bill, let us talk about it. But it is past time for 

genuine reform, and I can tell you, sir, that if the Administration 

doesn’t want to weigh in on this, I am sure that Congress will do 

so. And I don’t want to hear any ex post facto complaining. 

My time is up. 

Mr. GOODLATTE. The Chair recognizes the gentleman from New 

York, Mr. Nadler, for 5 minutes. 

Mr. NADLER. Thank you very much, Mr. Chairman. 

Let me first do something I rarely do, which is to express my 

complete and total agreement with the gentleman from Wisconsin. 

[Laughter.] 

Both in his analysis of the misuse and abuse of Section 215 and 

of what will happen to Section 215 if it is not substantially modified either this year or early next year. 

Mr. Conyers and I and various others opposed the Section 215 

version that was adopted back in 2001 and again in 2006 and 2011. 

We thought it was too broad. But now we have even that very 

broad version completely taken over the side by the Administration, by two Administrations, actually, and by the FISC. 

And the fact that the FISC several times determined that the 

use of Section 215 as authorization for what amounts to a general 

warrant, all right? You can collect all data, and then you can access 

that data without a specific warrant to access it or even a court 

order to access it, based on reasonable and articulable suspicion, 

but simply by an NSA or CIA officer saying, ‘‘We really need to 

look at that particular phone,’’ is a derogation of all of American 

history, frankly, since 17—it is why we put the Fourth Amendment 

in because we objected to the British general warrants. 

And we have, in effect, reestablished that here. And that will not 

stand. It cannot be allowed to stand. 

So let me simply echo that it has got to change. There is no excuse for picking everything and then allowing access to that without some sort of a specific court order. 

And the fiction that the warrant that the FISA court grants and 

says Verizon or AT&T shall give the Government access, you know, 

all telephone metadata over a 3-month period is a warrant, is a 

specific warrant that negates the necessity for a warrant or a court 

order for more specific information is just that, a fiction, and it is 

a general warrant. And it cannot be permitted to stand, and it 

won’t be permitted to stand. 

So I will second Mr. Sensenbrenner and urge you to swiftly get 

the department together and to if you don’t want the FREEDOM 

Act to pass it the way it is or Section 215 simply to not be extended, which might be the best solution, frankly, from my point 

of view, you better come in with very specific recommendations. 

Now let me say last week in testimony before the Senate, some 

Administration officials suggested that terrorist plots thwarted is 

not the appropriate metric for evaluating the effectiveness of the 
78 

program. And yet for months, the Administration has made precisely the opposite argument. 

For example, in a September letter to NSA employees, General 

Alexander wrote that the agency has ‘‘contributed to keeping the 

U.S. and its allies safe from 54 terrorist plots.’’ 

We have heard this 54 terrorist plots line repeated on several 

other occasions, although PCLOB and a lot of others have discredited it. Why has the argument changed? Why are we now to apply 

a different set of metrics to the program? 

Mr. JAMES COLE. I assume that’s directed to me, Mr. Nadler. 

Mr. NADLER. Yes, it is. 

Mr. JAMES COLE. Well, first of all, I think to a degree you’re 

going to have to ask the people who made those statements. I don’t 

think any of them were from the Department of Justice. 

We have been, and actually, some of the members of the PCLOB 

have agreed that that is—the past success or failure is not the only 

metric to use, or necessarily the best one. That there are many different ways to assess the utility of the 215 program that doesn’t 

always have to be, as I said earlier, the smoking gun or the nail 

in the coffin that gives you the single piece of evidence that will 

lead to success. It’s one piece of evidence. 

Mr. NADLER. Okay. Thank you. 

I am sorry to cut you off, but I have another question I must get 

in. National security letters empower the FBI and other Government agencies to compel individuals and organizations to turn over 

many of the same records that can be obtained by Section 215. But 

NSLs are issued by FBI officials, not by a judge or by a prosecutor 

in the context of a grand jury investigation. 

As the Government has explained their use of this to this Committee, NSLs are used primarily to obtain telephone records, email 

subscriber information, and banking and credit card records. The 

FBI issued 21,000 NSLs in fiscal year 2012. The oversight and 

minimization requirements for these NSLs are far less rigorous 

than those in place for Section 215 orders. 

The review group recommends ‘‘that all statutes authorizing the 

use of national security letters should be amended to require the 

use of the same oversight minimization, retention, and dissemination standards that currently govern the use of Section 215 orders.’’ 

Should we adopt that recommendation? Is there any reason that 

the two programs should not be harmonized? For that matter, is 

there any reason that NSLs should exist in addition to Section 215 

authorization in whatever form we extend it, if we do? 

Mr. JAMES COLE. Well, actually, under the NSL program, you 

can’t get the same records you can get with 215. It’s much more 

limited under NSLs as to just specific categories of records. Whereas, 215, grand jury subpoenas, things like that, the records are almost unlimited as to the nature or the type that you can get. 

So there’s a restriction in NSLs. They’re used really in the main 

as part of preliminary inquiries—— 

Mr. NADLER. Yes, but my point is if you can get it as under 215, 

if, in fact, 215 is broader, why do you need NSLs ever? 

Mr. JAMES COLE. It may just be a question of, again, how many 

times you need that information and whether or not you go to a 

court. In a grand jury situation, subpoenas are issued without the 
79 

involvement of the court many, many, many times, probably as frequently, if not more so, as NSLs. 

Mr. SENSENBRENNER [presiding]. The gentleman’s time has expired. 

Mr. NADLER. Thank you. 

Mr. SENSENBRENNER. The gentleman from North Carolina, Mr. 

Coble? 

Mr. COBLE. I thank the Chairman. 

Gentlemen, good to have you all with us. 

Mr. Cole, I was going to talk to you about bulk collection, but I 

think that has been pretty thoroughly examined. 

Mr. Swire, let me go to you. The review group’s report recommended a transition of Section 215 bulk metadata from Government storage to storage providers or third parties. This recommendation is consistent with recent guidance put forth by the 

Administration after its own review. 

Last week, it was reported by Yahoo that information relating to 

email accounts and passwords, likely in the hands of such a party 

database, had been compromised due to a security breach. Are you 

concerned that Section 215 metadata could be similarly compromised after transitioning to a private provider or third-party 

storage? 

Mr. SWIRE. Thank you, Congressman. 

A couple of observations. One is, of course, that the National Security Agency itself has had leaks and lack of complete security for 

its documents. So we’re not comparing perfect with perfect. We face 

these challenges for databases in each case. 

A second observation is that the telephone companies hold telephone records. That’s part of what they do and have done, and one 

of the options that we put forward is that the telephone companies 

would continue to hold these. 

So it’s not a question of some new risk that we bring into the 

world. It’s a risk that we face both from the Government side and 

the private sector side when we have these databases. 

I’m not sure if I—your—— 

Mr. COBLE. I think that was appropriate. Thank you, sir. 

Mr. SWIRE. Okay. 

Mr. COBLE. Mr. Medine? The FISA court has repeatedly upheld 

through its orders approving the NSA metadata program production of records to an agency other than the FBI. Did the privacy 

and civil liberties oversight majority take this into account? 

Mr. MEDINE. Yes, sir. Section 215, on its face, only permits the 

FBI to make requests and obtain access to telephone records, despite the fact that under the current system it is the NSA that obtains that information. And so, we think that was one of a number 

of respects in which the current program does not match the requirements of Section 215. 

Mr. COBLE. So you have no discomfort with that? 

Mr. MEDINE. Excuse me? 

Mr. COBLE. You have no discomfort or problem with that? 

Mr. MEDINE. Yes. We have discomfort with a number of aspects 

of compliance. As was discussed earlier, the scope of relevance 

under the statute, the fact that information has to be linked to a 

specific investigation, and something that we haven’t touched on 
80 

yet, which is the Electronic Communications Privacy Act does not 

permit telephone companies to provide information to the Government under the 215 program at all in either an individual request 

or on a bulk basis. 

The Electronic Communications Privacy Act only has an exception for national security letters and a few other areas. So we think 

that it makes sense to discontinue—the majority does, to discontinue the 215 program and move to other legal authorities. 

Mr. COBLE. Thank you again, gentlemen, for being with us this 

morning. 

I yield back, Mr. Chairman. 

Mr. SENSENBRENNER. The gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Cole, you offered several procedural changes as recommendations. To paraphrase President Reagan, we need to trust, but codify. Would you object to those recommendations being codified rather than just remaining as administrative process? 

Mr. JAMES COLE. I think as the President mentioned in his 

speech, he’s anxious to work with Congress on many of these 

things to try and find the right solutions that we have. I know the 

USA FREEDOM Act, many of the goals that are set out there are 

goals that we share. 

As I said in my opening, sometimes we have different ways of 

getting there, but we all seem to share the right goal together. 

Mr. SCOTT. And follow-up, several other questions. We frequently 

hear that the information gathered was helpful. I find that legally 

irrelevant. So let me just ask a question. If a collection of data 

were illegal, would a finding that it was helpful provide retroactive 

immunity for illegally collecting evidence? 

Mr. JAMES COLE. No, Mr. Scott, it would not. If the collection is 

illegal, the standard would not be met. 

Mr. SCOTT. Thank you. 

Mr. Swire, there was a case a couple of months ago in DNA that 

found that if DNA is legally collected, that there is no—there is no 

prohibition against running it through the database to see if the 

person had committed another crime. If I were to go up to you, if 

a law enforcement agency would go up to you and say, ‘‘I would 

like some DNA to see if you have committed crime,’’ that would be 

legally laughable. 

There appears to be no statutory limitation on what you can do 

with this information. So I guess my question is under—you recommended under 702 that if you have collected information about 

a U.S. person, you can never use it in any proceeding. That would, 

of course, eliminate any incentive to get the information in the first 

place if it was for something other than foreign intelligence. 

If that is your recommendation for 702, would that also be your 

recommendation on 215, that you cannot use this data for other 

proceedings? 

Mr. SWIRE. Thank you, Congressman. 

Under Section 702, the target, by statute, is supposed to be 

somebody outside the United States. But sometimes they’re in communication with people in the United States, and the concern behind our recommendation here is the possibility, which we have not 

seen in practice, is the possibility that the 702, do it overseas, could 
81 

turn out to be a way to gather lots of information about United 

States people. 

And so, we made a recommendation to say that that would not 

be used in evidence in court as a way to prevent that temptation 

to use the authority to go after U.S. persons. 

In terms of 215, we don’t have the same statute that’s specifically 

targeted at overseas. 215 can be for domestic phone calls as well. 

So we didn’t have this using our overseas authorities to get people 

domestically—— 

Mr. SCOTT. But you’re using foreign intelligence excuse to gather 

information that is subsequently used for criminal investigation. 

Mr. SWIRE. We did not make a recommendation about subsequent use, but we, I think—I think all of us recognize using foreign 

intelligence powers for purely domestic phone calls has been something that’s drawn a huge amount of attention to these issues and 

is something that historically has been something that’s been 

looked at carefully when the CIA or other agencies have done it. 

So that’s a concern using foreign intelligence issues authorities 

for domestic purposes. 

Mr. SCOTT. Let me follow through with another question that has 

been kind of alluded to, and that is that you want to limit Section 

215 by ensuring that there is reasonable grounds to believe that it 

is relevant to an authorized investigation and the order is reasonably focused in scope and breadth. 

Can you explain how that recommendation varies from what everybody up here thought was present law? 

Mr. SWIRE. Well, I think when we talk about like a subpoena, an 

order should be reasonable in focus, scope, and breadth. 

Mr. SCOTT. We wouldn’t have to put that in a statute to assume 

that to be the case, right? 

Mr. SWIRE. Well this gets into the statutory interpretation of the 

current 215. Our group did not take a position on that. The Government and the Privacy and Civil Liberties Oversight Board have 

come to different views on that. 

Mr. SCOTT. That we would have to put reasonable in scope and 

breadth in the statute for that to be assumed? 

Mr. SWIRE. Our recommendation was that a judge be involved in 

these things and that there be a reasonable breadth requirement 

explicitly in statute so that it’s clear from Congress that that’s 

what you intend. 

Mr. SCOTT. You also indicated a recommendation that the NSA 

not be involved in collection of data other than foreign intelligence. 

Can you explain what the NSA is doing that is not involved in foreign intelligence? 

Mr. SWIRE. In our—in our report, we talk about two other areas 

the NSA currently has or bears very important responsibilities. 

Currently, the Director of the NSA is also the Director of Cyber 

Command, which is part of the military operation for combat-related activities in cyberspace. We thought that was quite a different function from foreign intelligence collection. 

The NSA also has responsibilities for what’s called information 

assurance, protecting our classified and other systems, and we 

thought that defensive role is quite different from the offensive role 

of gathering intelligence and recommended those functions be split. 
82 

The President has not decided to adopt either of those recommendations. 

Mr. SCOTT. Thank you. 

And Mr. Cole, are you aware of any abuses in the use of classified information? Things like I think there is a thing called 

LOVEINT. Are you familiar with that? 

Mr. JAMES COLE. I’ve heard that phrase, yes, sir. 

Mr. SCOTT. What is that? 

Mr. JAMES COLE. I think it’s when you have somebody who is 

dating somebody, and they have access to one of these databases 

or a database and uses it to look at their—the person they’re dating and find out who they’re talking to and who they’re in contact 

with. That’s what I understand it to mean. 

Mr. SCOTT. And that happens? 

Mr. JAMES COLE. I think there have been a few instances. I think 

the NSA had noted a few instances of it. I don’t think they existed 

under 215. I think they may have existed under other authorities, 

but I think there has been just a handful of those over time. 

Mr. SCOTT. And what happens? 

Mr. JAMES COLE. And they’ve been dealt with immediately. 

Mr. SCOTT. And what has happened to the culprits? 

Mr. JAMES COLE. I know that most, if not all of them, lost their 

jobs. There were referrals in many of those cases to the Justice Department to consider whether or not prosecution would be appropriate. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. GOODLATTE [presiding]. Thank you. 

The Chair recognizes the gentleman from Alabama, Mr. Bachus, 

for 5 minutes. 

Mr. BACHUS. Thank you. 

I would ask all three of the panelists is relevancy for purposes 

of intelligence gathering different from relevancy for purposes of, 

say, a criminal investigation or civil investigation? Shouldn’t it be 

a—shouldn’t the standard be somewhat different, or is it? Start 

with Mr. Cole. 

Mr. JAMES COLE. I think as you’ve seen from the court’s opinions, 

they borrow both from criminal investigations, civil proceedings, 

and do that and use those as analogies to get to the standard in 

foreign intelligence. And they find it to be the same standard. 

Mr. BACHUS. You know, as just a Member of Congress, I sort of 

have the opinion that it is much more urgent for us to defend ourselves as a country. But does sometimes applying a civil court 

standard of relevancy or even a criminal court standard of relevancy sort of diminish their ability at—in defending the country 

from terrorists? 

Mr. JAMES COLE. Well, I think if you look at Judge Eagan’s opinion from the FISA court, her view and her finding was that the 

term ‘‘relevancy’’ was very broad and was very useful in both criminal, civil, and foreign intelligence investigations and can be applied 

very broadly when it’s necessary. 

It’s not without limitation. It’s not completely unrestrained. It’s 

only when there is an actual need to get a broad scope of documents that it’s authorized under that standard. And so, I think she 

had corporately found that scope. 
83 

Mr. BACHUS. All right. Ask the other two gentlemen. 

Mr. MEDINE. The majority of the PCLOB has also considered relevancy in the context of criminal and civil proceedings as the statute suggests. And we looked at every case cited by the Government 

and more on criminal discovery, and I’m using the relevance standard, grand jury subpoenas, as well as civil. And our conclusion was 

that the 215 program far exceeded in scope anything that had been 

previously approved ever, and even the Government’s white paper 

acknowledges that. 

And so, we in our—at least the majority’s view, it goes well beyond the face of the statute and a reasonable reading of relevance. 

Mr. BACHUS. Right. Now that was a majority opinion. 

Mr. MEDINE. That’s correct. 

Mr. BACHUS. So did two members dissent from that? 

Mr. MEDINE. Yes, they did. And they—and they felt that the 

Government’s reading of the statute was a reasonable one, as was 

the court’s interpretation. 

Mr. BACHUS. Okay. Mr. Swire? 

Mr. SWIRE. Yes, Congressman. So our group did not do that legislative history and statutory analysis as part of our work. In our 

forward-looking recommendation, we used the word ‘‘relevant’’ for 

the scope of a 215 order but said like a subpoena, it should be reasonable in focus, scope, and breadth. So we tried to hem it in with 

that reasonable scope language. 

Mr. BACHUS. I just, if we are talking about an EPA violation or 

we are talking about a criminal offense, a minor criminal offense, 

just applying those standards in that case law to public enemy and 

our foreign enemies of the United States, I feel like that lacks 

somewhat. 

Judge John Bates wrote a letter I think after both of you all’s 

reviews came out, and I think he raised some very legitimate concerns over things you have assigned to the court, including reviewing every national security letter, a public advocate. He and I think 

others in judiciary believe that could be a hindrance. 

After his letter, have you reviewed it, and do you agree that he 

brings up some very valid points that ought to be considered? Mr. 

Swire? Professor? 

Mr. SWIRE. After our report was complete, we did receive the 

judge’s letter. In terms of the public advocate, I’d make a following 

observation, which is the PCLOB report did extremely thorough 

analysis of the legality under the statute of 215 that was really 

much more detailed than anything any of the District Courts had 

done. 

And I think for just myself, not speaking for the whole group, I 

think that that supports our group’s recommendation that having 

detailed briefing with thorough analysis on these issues not just 

from the Government can really help us understand the statute 

better. So that’s part of why we thought the advocate would be 

helpful in some way because there would be a sort of thoroughness 

of a position—— 

Mr. BACHUS. Could you—could you all review his letter and 

maybe give this Committee additional comments in view of his letter? Particularly with the increasing caseload, if you are going to 
84 

increase their caseload, you are going to have to increase their resources. 

Mr. MEDINE. I should add that the PCLOB’s recommendation is 

that there be a special advocate only in those cases which involve 

unique law and technology issues, not the everyday 215 order 

where judges are very well equipped to make those judgments. 

Mr. BACHUS. Yes, but I am talking about their caseloads. You 

have assigned—under you all’s—both of your all’s proposals, it is 

going to increase quite a bit. 

Mr. MEDINE. Yes. Sure. 

Mr. BACHUS. Thank you. 

Mr. GOODLATTE. The gentlewoman from California, Ms. Lofgren, 

is recognized for 5 minutes. 

Ms. LOFGREN. Well, thank you, Mr. Chairman. 

And thank you to all the witnesses for your appearance here 

today and for answering our questions. 

I would like to concur with many of the comments made by our 

colleague Mr. Sensenbrenner as to the surprise that many of us 

had at the interpretation of the word ‘‘relevant’’ in Section 215. I 

would like to explore—we have talked a lot about the metadata for 

telephone records. But what I would like to explore with you, Mr. 

Cole, and perhaps others of you have an opinion, is not what is 

happening now, but what you believe the statute would authorize 

if, if the bulk collection of telephone data is relevant because there 

might be in that massive data information that would be useful for 

an investigation. 

What other tangible items would the statute authorize, not saying that we are doing this, the Government to collect? Would we 

be authorized to collect bulk credit card records, Mr. Cole? 

Mr. JAMES COLE. Ms. Lofgren, I think what you have to look at, 

which is a very important part of the analysis that Judge Eagan 

described, I thought, quite well, is that it’s not everything. It’s 

what is necessary to gather the relevant information. 

Ms. LOFGREN. Well, let me—what we are trying to explore here 

is really the role of the Government versus the citizen. 

Mr. JAMES COLE. Correct. 

Ms. LOFGREN. And if you can compile the record of every communication between every American because within that massive data 

there might be something useful to keep us safe, I am trying to explore with you, if that is your reading of Section 215 vis-a-vis 

metadata and the phone company, would that include cookies? 

Mr. JAMES COLE. Cookies? 

Ms. LOFGREN. Yes. Could it? 

Mr. JAMES COLE. Again, I think the issue here really is under 

215 with telephony metadata, the issue that was presented to the 

court was we needed the connections from one phone number to 

another. 

Ms. LOFGREN. Okay. Well, let me—— 

Mr. JAMES COLE. And so, that was necessary. In a credit situation—— 

Ms. LOFGREN. Let me ask you ask you this. Let me go to Mr. 

Swire because you are clearly not going to address this issue. 

Mr. JAMES COLE. I’m trying to, Congresswoman. 
85 

Ms. LOFGREN. I think you are trying to use up my time. If relevance allows for the collection of mass data because within that 

haystack, to use General Alexander’s words, there is the needle, 

would 215, under that reading of the act, allow for the collection 

of all the photos taken at ATM machines, all the cookies selected 

by commercial providers? 

We have special standards for records of gun sales and credit 

card records, but it doesn’t preclude their selection. Did your group 

look at that from a legal basis, not what we are actually doing? 

Mr. SWIRE. Well, we did not go through that list. But what I 

would observe is that a judge would have to make that decision. 

So the Department of Justice would need to go to the judge and 

say—— 

Ms. LOFGREN. Right. 

Mr. SWIRE [continuing]. We want ATM photographs for this reason, and the judge would have to say that it meets all the other 

standards for 215. So that’s something beyond just the Justice Department on its own. 

Ms. LOFGREN. Right. Let me ask about NSLs because NSL, as I 

think Rich Clarke gave some very pointed comments about how 

many were collected, thousands each day, with no supervision 

whatsoever. And that is directed to electronic communications. 

Could you under the Section I think, what is it, 502, do mass collection under 502? It doesn’t seem to be precluded as—— 

Mr. SWIRE. So I’m not remembering the section. Under NSLs, we 

were not aware of bulk collection under NSLs. 

Ms. LOFGREN. I am not saying what is happening. Do you think 

it provides the legal authority to do so? It is not precluded. 

Mr. SWIRE. I haven’t seen a theory under which the NSL authority could be used in that bulk way. I’m not aware of such a document that would—— 

Ms. LOFGREN. All right. What about 702, and do you think that 

702 provides the legal authority for bulk collection? 

Mr. SWIRE. 702, that partly depends on your idea of bulk. 702 

does allow targeting of people outside the United States and allows 

content and allows accumulation of allotted data about those individuals and the people they’re in communication with. 

That, by itself, would not be the way that we’d have the entire 

database of everything that happens. It has to be targeted to an 

individual overseas. 

Ms. LOFGREN. Just a final question. Have the metadata of Senators and Members of Congress been collected? 

Mr. SWIRE. I’m not aware of any way that they’re scrubbed out 

of the database. So whatever databases exist, I don’t know why 

your phone calls would be screened out. We haven’t heard any evidence—I’m not aware of any evidence that that screening out happens. 

Mr. GOODLATTE. The time of the gentlewoman has expired. 

Ms. LOFGREN. My time has expired. Thank you. 

Mr. GOODLATTE. The Chair recognizes the gentleman from California, Mr. Issa, for 5 minutes. 

Mr. ISSA. Thank you, Mr. Chairman. 
86 

Following up on that, the gentlelady’s question was do you collect? Your answer apparently is, yes, you do because you scrub everything. Is that correct? 

Mr. SWIRE. Is—so—— 

Mr. ISSA. You take it, yes? 

Mr. SWIRE. In terms of whether Members of Congress’ records 

are collected, first of all, the names are not listed. It’s based on 

phone numbers. 

Mr. ISSA. Well, no, but the simple question. 202-225 and four digits. Do you collect it? 

Mr. SWIRE. At this point, I’m not the U.S. Government, and 

maybe—— 

Mr. ISSA. Okay. Mr. Cole, do you collect 202-225 and four digits 

afterwards? 

Mr. JAMES COLE. Without going specifically, probably we do, 

Congressman. 

Mr. ISSA. So separation of powers, this is the—another branch. 

You gather the logs of Members of the House and Senate in their 

officials calls, including calls to James Rosen. Is that right? 

Mr. JAMES COLE. We’re not allowed to look at any of those, however, unless we make a reasonable, articulable suspicion finding 

that that number is associated with a terrorist organization. So 

while they may be in the database, we can’t look at any of those 

numbers under the court order without violating the court order. 

Mr. ISSA. Well, speaking of court orders, Mr. Rosen, is he, in fact, 

a criminal? 

Mr. JAMES COLE. Is he, in fact, a criminal? 

Mr. ISSA. Well, the Attorney General had said that James Rosen, 

a Fox reporter, you know, there was a wiretap placed on his family, 

he and his family. Correct? Not, and this was—— 

Mr. JAMES COLE. No, there was not a wiretap, sir. 

Mr. ISSA. There wasn’t? I am sorry. You collected personal 

emails. Let me get it correct. 

There was a warrant for personal emails, but there was also 

the—they wiretapped his family. 

Let me rephrase that. Let me go on, and I will come back to that 

because I want to make sure I get the terminology right. 

Do you screen executive branch numbers? 

Mr. JAMES COLE. We don’t screen any numbers, as far as—— 

Mr. ISSA. So you collect all numbers? The President’s phone call 

log record is in the NSA database? 

Mr. JAMES COLE. I believe every phone number that is with the 

providers that get those orders comes in under the scope of that 

order. 

Mr. ISSA. Would you get back to us for the record as to whether 

all phone calls of the executive branch, including the President, are 

in those logs? 

Mr. JAMES COLE. Be happy to get that back to you, Congressman. 

Mr. ISSA. Okay. Especially if he calls Chancellor Merkel, it would 

be good to know. 

The freedom of association is a basic constitutional right, 

wouldn’t you agree, Mr. Cole? 

Mr. JAMES COLE. Yes, it is. 
87 

Mr. ISSA. And if you are looking at our associations, and then if 

we have associations with somebody that you believe is ‘‘a terrorist,’’ then you take the next step, right? 

Mr. JAMES COLE. Well, we don’t look at your associations, Congressman. 

Mr. ISSA. Well, what does the metadata do if it is not—— 

Mr. JAMES COLE. We don’t look at the metadata unless we have 

a reasonable, articulable suspicion that the specific phone number 

we want to query is associated with terrorists. That’s the only way 

we can get into that metadata. 

Mr. ISSA. Do you collect the phone number metadata of all embassies here in Washington, all the foreign embassies? 

Mr. JAMES COLE. I believe we would. Again, we don’t screen anything out, to my knowledge. But that’s something that NSA would 

know. My understanding is we don’t screen anything. 

Mr. ISSA. And they have conversations with large amounts of 

numbers back in their home countries, right? 

Mr. JAMES COLE. All the telephone numbers have large amounts 

of conversations with lots of other telephone numbers. We don’t 

look at them unless we have that reasonable, articulable suspicion 

for a specific—— 

Mr. ISSA. But isn’t it true that the reasonable, articulable suspicion goes a little like this? I talk to somebody in Lebanon, who 

talks to somebody in Lebanon, who talks to somebody in Lebanon, 

who talks to somebody in Lebanon, who talks to somebody in Lebanon. 

If you gather all that data, then I have talked to somebody who 

has indirectly talked to a terrorist. Isn’t that right? 

Mr. JAMES COLE. That’s not how it would work, Congressman, 

no. 

Mr. ISSA. How do I know that? How do I know that a 12-step removed, somebody talked to somebody, who talked to somebody, who 

talked to somebody, who talked to somebody who is on the list 

wouldn’t occur? And I will just give you an example. 

The Deputy Prime Minister of Lebanon at one time gave $10,000 

to a group associated with a Hezbollah element. If I called the Deputy Prime Minister, which I did, from my office, wouldn’t I have 

talked to somebody who was under suspicion of being connected to 

a terrorist organization? 

The answer, by the way, is yes. But go ahead and give yours. 

Mr. JAMES COLE. Well, we wouldn’t be querying your phone 

number, Congressman, unless we had evidence that you were, in 

fact, involved with a terrorist organization. That’s the requirement 

under the court order—— 

Mr. ISSA. But you would query the Deputy Prime Minister, who 

had made a contribution and was under suspicion, right? 

Mr. JAMES COLE. If we queried his phone number, we might find 

that connection. 

Mr. ISSA. And at that point, you would have a connection between somebody who you had a warrant for and me. So you could 

have a warrant for me. Is that right? 

Mr. JAMES COLE. Well, I do not think we would necessarily have 

enough to have a warrant for you with just that one phone call, 

Congressman. That is not how it works. Again, there are a lot of 
88 

restrictions in those court orders and in the rest of the law as to 

what we can do, and we can get warrants for, and what we cannot 

get warrants for. 

Mr. ISSA. Well, we will follow up with the James Rosen thing 

later. Thank you. I yield back. 

Mr. GOODLATTE. The Chair recognizes the gentlewoman from 

Texas, Ms. Jackson Lee, for 5 minutes. 

Ms. JACKSON LEE. Let me thank the Chair and the Ranking 

Member for someone who was here, as a number of other Members, 

in the aftermath of 9/11 and the intensity of writing the PATRIOT 

Act that came out of this Committee in a bipartisan approach. Ultimately it did not reach the floor of the House in that way. 

As I try to recollect, I do not remember testimony that contributes to the massive data collecting that we have now wound up 

with. So I will pose as quickly as I can a series of questions. And, 

first, thank everyone for their service. It is good to see you, General 

Cole, and all of the other witnesses, the head of the Privacy and 

Oversight Board, and Mr. Swire as well. We thank you. 

Quickly, you have been, I think, a lifer to a certain extent, working for United States justice and the United States of America. 

Again, we thank you. Did you all have an immediate interpretation 

of mega collecting under the final passage of the PATRIOT Act? 

Was that what first came to mind? 

Mr. JAMES COLE. I was not in the government at the time the 

PATRIOT Act was passed, so I can honestly tell you I did not really 

think about it at that moment. 

Ms. JACKSON LEE. As you proceeded to be in government and as 

you have continued in service now and over these past couple of 

years, was that a firm conclusion that you could gather everything? 

Mr. JAMES COLE. As I became aware of what was being done 

under 215, and looking at the prior court precedents that came out 

that it had been approved and the descriptions of it, and some of 

the notices that were given to Congress, I was of the view that it 

was lawfully authorized under the PATRIOT Act and under 215. 

Ms. JACKSON LEE. Well, you are as well required to follow the 

law, but I note that justice is in the U.S. Department of Justice, 

and what you are suggesting is that no lawyers as far as you know 

may have gathered to say that this may be extreme? 

Mr. JAMES COLE. I am not aware of anybody saying that at the 

time, but again, I was not in the Justice Department at the time. 

Ms. JACKSON LEE. Not at that time. I am coming forward now 

in the time that you have been in the Justice Department. 

Mr. JAMES COLE. As far as the legal basis, I think everyone that 

I have talked to has been comfortable with the legal basis. 

Ms. JACKSON LEE. So as you have listened to Members of Congress, what is your commitment to coming back to us, working with 

the Department of Justice to address and to help change what we 

are presently dealing with? 

Mr. JAMES COLE. Well, I can tell you is that the President’s commitment, and we work for the President, and we are there to fulfill 

that commitment to try and change 215 on the telephony metadata 

as we know it and find another way where the government does 

not hold—— 
89 

Ms. JACKSON LEE. So you have a commitment based upon the 

President’s representation to come back and look at a better way 

of handling the trolling of Americans’ data that may not be relevant. 

Mr. JAMES COLE. We are looking for another way that will accomplish what we have been accomplishing under 215 as best we 

can and not involve the government holding the metadata. 

Mr. GOODLATTE. You may want to use an adjoining microphone 

if you can get to one. 

Ms. JACKSON LEE. Can you all hear me? 

VOICE. No. 

Ms. JACKSON LEE. You cannot hear? 

VOICE. No, we cannot hear. We cannot hear. 

Ms. JACKSON LEE. Testing, testing. Can you hear me now? 

Thank you. That is what happens when you start trolling and collecting data. [Laughter.] 

I am sorry. Mr. Chairman, will I be indulged my time? Thank 

you. 

Mr. GOODLATTE. No. [Laughter.] 

Ms. JACKSON LEE. I did not hear that. [Laughter.] 

Please indulge me, Mr. Chairman. Technological troubles here. 

In the report, there was a comment, ‘‘The idea of balancing has 

an element of truth, but it is also inadequate and misleading.’’ Mr. 

Swire, when we are talking about security and privacy, what do 

you think that means? And I am going to go ahead to my good 

friend over the Oversight Board, Mr. Medine. Thank you very 

much. I think it is going to be in your hands to be as aggressive 

as you possibly can be, and I want you to give me your interpretation of two things: the question of relevance and the question of the 

importance of having an advocacy for the people in the FISA Court. 

Mr. Swire? 

Mr. SWIRE. The review group supported having an advocate, exactly. Had to have amicus versus party, so there are some tricky 

legal issues. And we did not make a legal decision about our view 

on the word ‘‘relevance.’’ 

Mr. GOODLATTE. Without objection, the gentlewoman will be 

granted an additional minute on her time. 

Ms. JACKSON LEE. Thank you. Mr. Medine, could you answer the 

question as extensively as you can on that? Thank you, and thank 

you for your service. 

Mr. MEDINE. You are welcome. Nice to see you again. On relevance, again, the majority of the board is concerned about the almost unlimited scope of relevance, and I think that we have heard 

questioning earlier today that it encompasses Members of Congress, the executive branch, and also dissidents, and protestors, 

and religious organizations. And so we think that it is written too 

broadly under this program, and there should be much more targeted requests for information, which can be legitimately done 

without the need to gather bulk information. Right now, relevance 

is almost whatever the government can pull in and analyze as the 

scope of relevance. And we think that there needs to be a narrower 

concept to protect privacy and civil liberties. 

I mean, with regard to having an advocate in the Foreign Intelligence Surveillance Court, I think it is critical that there be an-
90 

other voice to respond to the government. As Mr. Swire mentioned 

earlier, if all the briefing that we have done on this program could 

have been presented to the Court, the Court could have made a 

more balanced decision. It was not until 2013 that the Court issued 

its first opinion regarding the legality of this program. We think in 

the adversary process, the Court would have carefully considered 

all the arguments pro and con, rendered its decision. And we also 

recommend that there be an opportunity for appeal to the FISCR, 

which is the Court of Appeals, and ultimately to the Supreme 

Court to resolve these important statutory and constitutional 

issues. 

Ms. JACKSON LEE. Let me just indicate that in addition as an 

aside, the President put on the record that he thought that we 

needed to haul in, from another perspective, the contractors dealing 

with the vetting of all those who work in this area just as a protection. If we are so interested in trolling Americans, we need to also 

make sure that our contractors or our workers in the intelligence 

are fully vetted. Just in your own mindset, do you think the government can handle its vetting and narrow the sort of outside contractors that are doing that now? 

Mr. GOODLATTE. The time of the gentlewoman has expired. The 

gentleman will be allowed to answer the question. 

Mr. MEDINE. And actually with due respect, that is not on our 

board’s domain, but maybe the deputy attorney general might be 

able to address that. 

Mr. GOODLATTE. Mr. Cole? 

Mr. JAMES COLE. I am sorry, could you repeat the question? 

Ms. JACKSON LEE. The President indicated that maybe we should 

reduce our outside contractors that are vetting those who have access to our security data. Would you be also in agreement with that 

approach? 

Mr. JAMES COLE. I think we need to make sure that we take care 

of the insider threat. That has been something the President has 

talked about. We need to make sure that people who work for the 

government are suitable and have been vetted properly. We have 

always thought that from both a cost perspective and a security 

perspective, the more we can reduce contractors the better. But as 

we hire contractors, we hire employees as well. They just need to 

be vetted very well when they are given very sensitive and classified positions. 

Ms. JACKSON LEE. I thank the Chairman, and I thank the witness. I yield back. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Virginia, Mr. Forbes, for 5 minutes. 

Mr. FORBES. Mr. Chairman, thank you, and, gentlemen, thank 

you so much for taking your time and your expertise to be here 

with us today. 

Mr. Cole, it is my understanding that the review group’s recommendation was that the use of private organizations to collect 

and store bulk telephony metadata should be implemented only if 

expressly authorized by the Congress. My question to you is not for 

the word ‘‘should,’’ but we have watched the President when he 

was all in on healthcare and promised us all we could keep our insurance if we wanted it. It later changed. We listened to his words 
91 

say he could not change immigration laws without Congress. He 

changed. We listened to him about military force without congressional permission. He changed. We heard his State of the Union 

where he said he had a pen and he had a phone regardless of what 

Congress did. 

My question to you is, in your professional opinion, do you believe that the President of the United States has the authority to 

use private organizations to collect and store bulk telephony 

metadata without the express approval of the Congress of the 

United States? 

Mr. JAMES COLE. Congressman, that is an issue that is probably 

part of the mix that we are looking at—— 

Mr. FORBES. My question to you is do you have it, and we have 

seen you kind of slide off of the answers to the questions today. I 

am not asking you what ultimately would be determined. I am 

talking about your professional opinion today sitting there, is it 

your professional opinion that the President has authority or does 

not have the authority? 

Mr. JAMES COLE. I am going to give you a lawyer’s opinion. 

Mr. FORBES. That is what we hired you for. 

Mr. JAMES COLE. Okay. There may be ways we could find for 

him either through contract or executive order to do it. It could also 

be done through legislation. There may be a number of different 

ways that you can—— 

Mr. FORBES. So then basically if this Congress wants to avoid 

that, we had better to get to work and expressly prohibit the President from doing that, because he could do that the same way he 

is threatening to do certain other things. 

Mr. JAMES COLE. I think the President has clearly indicated he 

is looking forward to working with Congress to achieve a lot of 

these things. 

Mr. FORBES. Yes, but he also said that ‘‘working’’ means if Congress does not do what he says, he has got the pen, he will do it 

anyway. 

Mr. Swire, if I could ask you, and I appreciate your comments 

about wanting to have specific and targeted collection, I believe, as 

opposed to bulk collection. Is that a fair representation? 

Mr. SWIRE. Our report emphasizes the usefulness of the targeted 

collection. 

Mr. FORBES. Mr. Swire, I represent a lot of people. We have a 

lot communications from groups in the country who believe that 

even with specific and targeted collection, they are concerned because they have seen what the IRS, the Justice Department, and 

other agencies have done in targeting conservative groups and individuals in the faith community. What would you suggest that we 

do to try to protect those groups, because it is not going to be much 

consolation to them to say we can do specific and targeted collection if they have seen that they have been specifically targeted already by this Administration. Any suggestions that your group 

might have for that? 

Mr. SWIRE. Well, we have a couple of statements or conclusions 

in our report that I think are relevant to that. One is we found no 

evidence that there was in these surveillance activities any political 

targeting of Americans. So this is not where they are picking phone 
92 

numbers based on politics or faith groups or whatever, and that includes people with a lot of experience in the intelligence community 

who are on our group. 

And the second thing is we found a very substantial compliance 

effort, much of which has been built up over the last 4 or 5 years, 

and so, a very earnest effort to comply with these rules, and so, in 

both of those cases, not political targeting and following the rules. 

We were distinctly heartened by what we found as we went 

through our—— 

Mr. FORBES. Well, let me ask you this because it is also my understanding that your group did not conclude that the Section 215 

Bulk Telephony Metadata Collection Program had been operating 

illegally with respect to these statutes or the Constitution. You further found no allegations in the report of abuse of this authority 

by members of the law enforcement and intelligence community. 

You further found that there was no allegation that the National 

Security Letter Program operated illegally, that no allegation of 

misuse or abuse by the law enforcement or intelligence community 

was made in the report. And yet you made substantial recommendations to change them. 

So as to these groups who are very concerned about that, what 

would be your recommendations to protect the interests of those 

groups? 

Mr. SWIRE. Congressman, we were interested in traditional 

American checks and balances and having the different branches 

of government doing their jobs, and going forward having within 

the executive branch bulk collection held in secret without judicial 

or congressional participation in that. We thought that was not a 

good way to go. And so, for the bulk collection, we recommended 

being very skeptical of the bulk collection, and we recommended 

having judicial safeguards in instances where it went forward as 

a way to maintain these sorts of checks and balances. 

Mr. FORBES. Good. Mr. Chairman, thank you, and I yield back 

the balance of my time. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from Tennessee, Mr. Cohen, for 5 minutes. 

Mr. COHEN. Thank you, Mr. Chairman. Would it be improper for 

me to recognize the Delta Sigma Thetas, who are here today? 

Mr. GOODLATTE. I think it would be very proper. 

Mr. COHEN. Well, welcome. They are here and a great sorority 

that does a lot of good for our country. Thank you, Mr. Chairman. 

Mr. Cole, before we talk about the NSA, which is indeed the subject of this, I want to go to another subject and give you some 

praise. You recently spoke before the New York State Bar Association, and I was so encouraged by your speech. It was about criminal justice issues that relate to this Committee as well. 

And you indicated that the President is open to using his commutation power in a much more manifest way than he has in the 

past. You called on attorneys to come forward and try to help people with clemency requests, and that notice will be given to individuals in prison maybe with mandatory minimums that are unjust, 

people who had no violence in their background, may be first-time 

offenders who were sentenced for long times who judges said, I 
93 

hate this, but I have to. And you give them notice. I thank you for 

that. And you and the President deserve praise for this effort. 

It is my opinion that the President can leave a legacy for justice 

that could be unmatched if he used that power that you have discussed, and I am sure you have worked with him on, in a manifold 

way. There are thousands of people that need justice and should 

receive it, and this is probably the only way they can. I know he 

is waiting on the legislature, the Congress, to act. I think he should 

probably act on his own. 

The FISA Court is appointed entirely by the Chief Justice, and 

I have great regard for the Chief Justice. He and I are friends. But 

I do not know that that makes for a good balance of power on the 

FISA Court. His appointments, and it may just folks he kind of 

knows, but 10 of the 11 judges who have been currently sitting 

were appointed by Republicans presidents. And it may just be how 

that happened, you know, but it could be that there is a certain 

ideological link there, and it should be changed. 

I would think that the FISA Court ought to have a wide expanse 

of ideology, and some people are more skeptical of the government’s 

perspective and more inclined toward looking toward civil liberties. 

I do not know that we have that in that Court. Does it trouble you, 

Mr. Cole, that the Chief Justice names every single of those people? 

Mr. JAMES COLE. Congressman, I do not think it particularly 

troubles me. I think we have seen judges throughout the Court, 

and everyone that I have dealt with at the Court has just been 

straight down on the facts and the law, and making sure that they 

honored civil liberties. We have seen released any number of opinions of judges when there were compliance problems, and the 

judges coming down hard on the Justice Department and on NSA 

to make sure that we fix them, and to make sure that we protected 

people’s privacy and people’s civil liberties. 

So I think you have got a good group of judges that have been 

there over the years. 

Mr. COHEN. Let me ask you this. You said the judges down the 

line. Do they not almost unanimously agree? How many times have 

you seen a split opinion? 

Mr. JAMES COLE. Well, there is only one judge that looks at a 

FISA application, so you would not have the split. And what has 

been discussed any number of times is that we present these applications to the FISA Court. They go to the staff. They go to the 

judges. Sometimes the judges will kick them back, and they will 

say you need more information about this, or, I do not find you 

have met the standard on that. And sometimes we will provide 

more information, other times we will withdraw it. 

So the statistics of how many have been granted that were submitted are a little bit misleading because it does not take into account some of the dialogue that goes on between the Justice Department and the Court that results in the applications being withdrawn. 

Mr. COHEN. And they do not sit en banc? 

Mr. JAMES COLE. No. There is a review group, an appellate 

group, which is 3 judges, and they will sit as 3 judges. 

Mr. COHEN. How often are they split? 
94 

Mr. JAMES COLE. I would have to go back and look. I do not really know the statistics off the top of my head. 

Mr. COHEN. Would ‘‘rare’’ be a good term to apply to their outcomes? 

Mr. JAMES COLE. It might be, but I just do not know the statistics. 

Mr. COHEN. Did the President not come out for some type of 

change and think that maybe each of the judges should rotate and 

pick somebody? 

Mr. JAMES COLE. I think that is one of the things that has been 

proposed in some of the pieces of legislation. I think generally as 

long as we get good judges who are there and we do not inject politics into it, I think we are happy as long as we have got judges that 

are there, and that fully staff the—— 

Mr. COHEN. I understand not getting politics in it, but the Pope 

is politics. I mean, everything is politics. The justices are politics. 

Would it be wrong if the congressional leaders, equal Democrat and 

Republican, suggested some people to the judges and they pick 

from that group so there would be more of a check and balance on 

the choices? 

Mr. JAMES COLE. I think there are any number of models that 

might be workable in this regard to try and find a way to staff that 

Court. We are more than happy to work with the Congress on trying to find good ways to do that. 

Mr. COHEN. Thank you. Thank you. I appreciate it, and I thank 

the Chairman for his indulgence in recognizing the greatest group 

of ladies in red since the Biograph Theater. 

Mr. GOODLATTE. That is an interesting comparison. [Laughter.] 

The gentleman from Texas, Mr. Gohmert, is recognized for 5 

minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman, and I appreciate the 

witnesses being here. Mr. Cole, if you had been testifying in front 

of this Committee back before Edward Snowden took the documents he did, and you were asked if it was possible that any contractor would be able to access and take the documents that we 

now know he did, based on your comment that nobody can access 

these documents without proper cause, back then you would have 

said nobody could access those documents without proper cause 

and authorization, would you not? 

Mr. JAMES COLE. I think what I was saying, Congressman, is 

under the law and the court order nobody is allowed to do that 

without violating the—— 

Mr. GOHMERT. So you are making a distinction that it is possible 

that they could access those documents, just like Edward Snowden 

did, correct? 

Mr. JAMES COLE. Things are possible. You know, this is something that we would like to nail down, but exactly what—— 

Mr. GOHMERT. Well, you answered my question on that. The answer, though, accurately would be that not only Members of Congress, but anybody is subject to having that data looked at or 

accessed by someone who may not follow the law. 

But let me tell all of you witnesses, in my first term we went 

through the process of debating whether or not we were going to 

renew the PATRIOT Act, and 215 was of particular importance. 
95 

And I asked the question, for example, you know, under 215 where 

it says that you would only access these documents to protect 

against international terrorism or clandestine intelligence activities. I said what is ‘‘clandestine intelligence activities,’’ and I was 

assured that since we are talking about international terrorism, 

our intelligence activities have to do with foreigners, and we were 

assured that was the case. And Chairman Sensenbrenner at the 

time assured that he had been assured that that was the case, and 

that is why he was initially totally opposed to any more sunsets 

that I fought so hard for and we did finally get in here. And now 

we find out those representations were not accurate. 

And let me tell you something else that concerns me is, yes, I 

know the Constitution and the Fourth Amendment does say that 

we have the right to be secure in our persons, houses, papers, and 

effects against unreasonable searches and seizures. And that is not 

to be violated, and no warrants are to be issued but upon probable 

cause supported by oath or affirmation, particularly describing 

places, persons, or things to be seized. 

And when we saw the copy of this order from the FISA Court, 

all those assurances from my terms as a freshman went out the 

window because you have a judge, based on this before the FISA 

Court, who just says give all call detail records, telephony 

metadata. And then it defines telephony metadata basically as everything that you would desire about information and calls being 

made. 

I cannot find in that order any particularity or any specificity as 

at least appellate courts have always required. So this causes me 

great concerns without regard for discussion about Snowden, the 

fact that we had information provided to us that were misrepresentations of what was being done by this government. 

So let me also ask, since we have been told repeatedly how critical this FISA ability under 215 is, we have been told that all of 

these different plots have been foiled. And when it comes right 

down to it, it appears it was basically a subway bombing, and there 

are articles that indicate that, well, gee, they intercepted some information, so they went back and got all the phone logs for communication. But you do not need FISA Court, you do not need 215 

when you have probable cause from a terrorist, a known terrorist, 

calling an American citizen. You would be able to get a warrant for 

that, would you not? I ask all of you. 

Mr. JAMES COLE. Well, I think there are a couple of issues there. 

Mr. GOHMERT. Well, the question is, you would be able to get a 

warrant if you showed that a known foreign terrorist made calls to 

an American citizens. You could go in and get basically any court 

to grant a warrant to get those logs, could you not? 

Mr. JAMES COLE. It depends on whether you get it under FISA, 

in which case you would have to show that it was an agent of a 

foreign power or a terrorist or an intelligence—— 

Mr. GOHMERT. That was part of my question, a known foreign 

terrorist. 

Mr. JAMES COLE. Right. You may well be able to do that. 

Mr. GOHMERT. Mr. Swire, do you think we could get that? 
96 

Mr. SWIRE. Congressman, to date the courts have not held that 

that was a search, so they say there is not a Fourth Amendment 

constitutional protection in the metadata. And we recommend—— 

Mr. GOHMERT. In other words, you do not need 215 to get that, 

do you? 

Mr. SWIRE. Well, you need some statutory basis to require the 

companies to turn over the data, but it is not a constitutional protection. It is statutory right now. 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. GOHMERT. If I could get an answer from our last witness. 

Mr. MEDINE. Again, we agree that under Supreme Court law 

there is not a constitutional Fourth Amendment issue, but we also 

do believe this information could be obtained through other authorities, a warrant, subpoena, or possibly national security—— 

Mr. GOHMERT. Without 215? 

Mr. MEDINE. Yes. 

Mr. GOHMERT. Okay. Thank you very much. 

Mr. JAMES COLE [continuing]. Would only be required for the listening of the call, not for the data. 

Mr. GOHMERT. Thank you. I yield back. 

Mr. GOODLATTE. The Chair recognizes the gentleman from Georgia, Mr. Johnson, for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. The revelation that 

U.S. intelligence agencies were collecting telephone and email 

metadata on foreign to domestic, domestic to foreign, as well as domestic to domestic communications caused an uproar. This disclosure has given rise to the suspicion that intel agencies have been 

spying on Americans. The intel community denies spying on Americans, and states that the purpose of the metadata collection is to 

protect Americans from terrorist attacks like 9/11. 

Now, in the wake of the death of Osama bin Laden, who was one 

of the 5 top leaders of Al-Qaeda, and, in fact, 4 of the 5 top leaders 

of Al-Qaeda, including Osama bin Laden, are no longer living. And 

Al-Qaeda has, thus, decentralized with affiliates worldwide acting 

independently to establish an Islamic state through violence. These 

groups all share a Salafi jihadist ideology, which is that violence 

is the only pathway to achieving a world governed by what AlQaeda calls true Islam. Those groups are working toward that goal. 

Given the nature of the Al-Qaeda threat, or actually the Salafi 

jihadist threat, given the nature of that threat, and also assuming 

that those organizations use cell phones, chat rooms, emails, 

Facebook, and Twitter to conduct their operations, do you believe 

that that the universal data collection by U.S. intel agencies has 

the potential to disrupt Al-Qaeda’s operations throughout the 

world? And secondly, and I think we already have answers to this 

from two of you, is metadata actually private information, and, if 

so, who does the information belong to? Is it the customer or is the 

service provider? Starting with you, Mr. Cole. 

Mr. JAMES COLE. Congressman Johnson, I think that the 215 

program is a tool, and it is a tool that is helpful. It is not going 

to solve all the problems all on its own in finding terrorists. It is 

one piece of what we use as a number of tools to try and find terrorists before they attack the country. In and of itself, it has some 

utility, but I do not think we should overstate the utility of it, but 
97 

it is helpful, and I think it is something that we have determined 

that we do not want to give up that capability because it is helpful. 

Mr. JOHNSON. All right. Let me go to—— 

Mr. SWIRE. Congressman, yes. One of the major themes of our reports is that we have to use our communication system for multiple 

goals. We have to use it to capture dangerous people and find 

them. It is the same communication system we used for commerce 

and we use for free speech and all these other things. 

And so, our report tried to figure out ways to be really good at 

finding the threats and also protect these other goals. People are 

all struggling with how to build that, and it is a big challenge. 

Mr. MEDINE. Congressman, you raised the question about whether Americans were improperly being spied on. We did not find any 

evidence of that, but the mere fact that people believe that could 

be affects their behavior, their association, their speech rights. And 

that is one of the major reasons we recommend, the majority of the 

board, to not continue the 215 bulk collection program because 

there are other methods that are more particularized to gather this 

information without storing everyone’s phone records. 

Mr. JOHNSON. How would that affect the ability of our intelligence agencies to protect Americans from a threat like 9/11? 

Mr. MEDINE. The majority believes that the ability to collect this 

information could be transferred to the providers instead of maintained in a bulk collection and maintain the same level of efficiency. 

Mr. JOHNSON. Okay. What would cause the private providers to 

have adequate security as to who in their operations had access to 

the, for lack of a better term, private information, the private 

metadata? What are the consequences? What are the ramifications 

of that? 

Mr. MEDINE. Well, under current law, the Federal Communications Commission requires telephone providers to maintain those 

records for 18 months, and also maintain the security of that information. So that is current law, and that happens every day that 

the providers maintain that information. What we are saying is instead of having them dump all of their information into a government database, it should be kept with them and obtained from 

them on a case by case basis. 

Mr. JOHNSON. Anyone else? 

Mr. JAMES COLE. I think one important point, and it goes to a 

question Mr. Gohmert asked, is that there are lots of security protections in lots of different databases. You can get around them 

every now and again. You can get around them in a government 

database. You can get around them in a provider’s database. People 

can hack in. We tried to put in protections and legal restrictions 

to prevent that from happening, but nothing is completely foolproof. 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. JOHNSON. Thank you. 

Mr. GOODLATTE. The gentleman from Ohio, Mr. Jordan, is recognized for 5 minutes. 

Mr. JORDAN. Thank you, Mr. Chairman. Mr. Cole, are you familiar with the name Barbara Bosserman? 

Mr. JAMES COLE. I have heard that name, yes. 
98 

Mr. JORDAN. Is she an attorney who works at the Justice Department? 

Mr. JAMES COLE. She is. 

Mr. JORDAN. And she is part of the team that is investigating the 

targeting of conservative groups by the Internal Revenue Service, 

is that correct? 

Mr. JAMES COLE. She is a member of that team. 

Mr. JORDAN. A member of that team. I would dispute that and 

say she is leading the team, but I will take your word for it. Now, 

in the last 5 days, Mr. Cole, you have sent me two letters, one January 30th, last week, one just yesterday, where we had invited Ms. 

Bosserman to come testify in front of the Oversight Committee, 

and you sent me two letters saying that she is not going to come. 

And I counted them up. In these two letters, I think it is 7 different 

times you say this is an ongoing investigation, and that is why Ms. 

Bosserman cannot come to our Committee and testify. Do you recall those two letters you sent me, Mr. Cole? 

Mr. JAMES COLE. I do. 

Mr. JORDAN. Yes, and you signed both of them? 

Mr. JAMES COLE. I did. 

Mr. JORDAN. And you referenced many times ongoing an investigation? 

Mr. JAMES COLE. Yes, it is. 

Mr. JORDAN. So here is my question. How can the President of 

the United States go on TV on Superbowl Sunday and say that 

there is not a smidgen of corruption in this investigation, not a 

smidgen of corruption in the IRS with how they targeted conservative groups? How can he be so sure when it is an ongoing investigation, something you told me 7 times in two letters in 5 days? 

How can the President make that statement? 

Mr. JAMES COLE. Congressman, I think you should probably address that question to the White House. 

Mr. JORDAN. Did you brief the President on the status of this investigation? 

Mr. JAMES COLE. I have not. 

Mr. JORDAN. Do you know if the Attorney General has briefed 

the President on the status of this investigation? 

Mr. JAMES COLE. Not that I am aware of. 

Mr. JORDAN. Do you know if Ms. Bosserman, part of this team, 

who is investigating the targeting of conservative groups, do you 

know if she has talked to the President? 

Mr. JAMES COLE. Generally, the Justice Department does not 

brief the White House on—— 

Mr. JORDAN. So how is the President so sure? 

Mr. JAMES COLE. Congressman, I am not in a position to answer—— 

Mr. JORDAN. He did not say I do not think there is, there probably is not, nothing seems to point that way. He said there is not 

a smidgen of corruption. He was emphatic. He was dogmatic. He 

knew for certain. And no one has briefed him? 

Mr. JAMES COLE. No one I am aware of, Congressman. 

Mr. JORDAN. So you know what I think, Mr. Cole? I mean, you 

know, just a country boy from Ohio. You know what I think? I 

think the President is so emphatic and he knows for certain be-
99 

cause his person is running the investigation, because Ms. 

Bosserman gave $6,750 to the Obama campaign and to the Democratic National Committee, and she is heading up the investigation. 

I think the President is so confident because he knows who is leading the investigation. And that is a concern not just for me, and 

Members of this Committee, and Members of the Oversight Committee, but, more importantly, the American people who have to 

deal with the IRS every single year. Does that raise any concerns 

with you, Mr. Cole? 

Mr. JAMES COLE. Congressman, Ms. Bosserman is a member of 

the team. She is not leading this investigation. 

Mr. JORDAN. How was the team picked? 

Mr. JAMES COLE. The team was assigned in normal course by career prosecutors. It includes the FBI, the IG for the—— 

Mr. JORDAN. How many members are on the team? This is something the FBI has refused to answer for the last year because I 

have been asking the question. They have refused to meet with us. 

They initially said they were going to meet with us. Then they 

talked with lawyers of the Justice Department and they said, no, 

we are going to rescind that offer, Mr. Jordan. We are not going 

to come meet with you. So how was the team put together, and 

how many members are on the team? 

Mr. JAMES COLE. Congressman, off the top of my head, I have 

no idea how many members are on that team. And generally, we 

do not brief elected officials on ongoing investigations. That is a 

standard—— 

Mr. JORDAN. But again, we are not asking for a full briefing. We 

understand it is ongoing. We would just like to know who is heading it up. How many agents have you assigned? How many lawyers 

have you assigned? Who is heading it up? If it is not Ms. 

Bosserman as I think it is, who actually does head it up? 

Mr. JOHNSON. Mr. Chairman, parliamentary inquiry, please? 

Mr. GOODLATTE. The gentleman will state his parliamentary inquiry. 

Mr. JOHNSON. Is it proper for a Member of the Committee to 

question a witness about a matter that is not relevant to the matter that the hearing has been noted for? 

Mr. GOODLATTE. It is proper, and it has been done many times 

before in this hearing, this Committee. 

Mr. JORDAN. I would just point out—— 

Mr. GOODLATTE. The gentleman will continue. 

Mr. JORDAN. Mr. Cole sent me two letters in the last 5 days. It 

is a pretty important issue. And when you appoint someone or you 

assign someone who gave $6,750 to the very person who—the 

President could be a potential target in this investigation, and yet 

the person leading the investigation gave $6,000 to his campaign? 

She has got a financial stake in an outcome, a specific outcome. 

And Mr. Cole says ‘‘normal course of duty.’’ We have got 10,000 

lawyers at the Justice Department, and, oh, it just happened to 

work out that Ms. Bosserman heads up the team. Really? 

Mr. JAMES COLE. She is not heading up the team, Congressman. 

There are many people—— 
100 

Mr. JORDAN. It is not what the witnesses we have talked to have 

said. Mr. Cole said she asked all the questions when they have 

been interviewed. 

Mr. JAMES COLE. She is not the head of the team, and there are 

many people who will be making the decision as to what to do with 

this case based on the evidence, the facts, and the law, just like 

every single investigation the Department of Justice does. 

Mr. JORDAN. Okay. All I know is the President said—— 

Mr. JAMES COLE. And including FBI agents—— 

Mr. JORDAN. All I know is the President said there is not a smidgen of corruption. 

Mr. JAMES COLE [continuing]. Including eight—— 

Mr. JORDAN. The President has already reached a decision. 

Mr. JAMES COLE [continuing]. And the Inspector General’s office. 

Mr. JORDAN. Mr. Chairman, if I could real quickly. I sent my letters to Ms. Bosserman. She did not write me back. You did, Mr. 

James Cole. Did you talk to her about coming to testify? Did you 

tell her not to come testify? 

Mr. JAMES COLE. I did not tell her not to testify. 

Mr. JORDAN. Did you have any conversation with Ms. Bosserman 

about the request I gave her to come testify in front of our Committee? 

Mr. JAMES COLE. Congressman, there is a standard—— 

Mr. JORDAN. No, no, I did not ask that. I said did you talk to 

Ms. Bosserman about that specific request I sent to her. My letter 

was to her, and I got responses back from you. 

Mr. JAMES COLE. And I am answering your question, Congressman. There is a very long-held policy in the Department of Justice 

that line attorneys are not subjected to the questioning by Members of Congress. 

Mr. JORDAN. Did you ask her if she wanted to testify? 

Mr. JAMES COLE. If I may finish, Congressman, they are not subjected to questioning—— 

Mr. JOHNSON. Regular order, Mr. Chairman. 

Mr. JAMES COLE [continuing]. By Members of Congress, and we 

do not send people up here to talk about ongoing investigations. We 

have done that in every Administration. 

Mr. JORDAN. But you are not answering my question. Answer my 

question. 

Mr. GOODLATTE. The time of the gentleman has expired. The 

gentleman may answer the question. 

Mr. JAMES COLE. I think I have answered it. 

Mr. JORDAN. I do not think you have. 

Mr. GOODLATTE. The Chair recognizes the gentlewoman from 

California, Ms. Chu, for 5 minutes. 

Ms. CHU. Mr. Medine, the PCLOB’s report urges Congress to 

enact legislation that would allow the FISA Court to seek independent views from the special advocates. These advocates would 

step in where there are matters involving interpretation of the 

scope of surveillance authorities or when broad collection programs 

are involved. 

The report stresses that the Court should have discretion as to 

when these advocates step in. But is it advisable for the Courts to 

have that discretion? Is it possible that the Courts may leave the 
101 

advocates out of the process when such important questions are before them? 

Mr. MEDINE. First, we do think it is important for advocates to 

be involved in issues of new technology and new legal developments. In terms of how they get involved, our feeling was that 

there are cases where they should certainly, obviously, be involved 

such as in a novel program that is being proposed. But there may 

be other cases which may not seem as novel on its face, but the 

judge is aware of the facts and circumstances, and wants to bring 

them in as well. 

So we felt it was appropriate to give the judge discretion as to 

when to involve the advocate, but we also called for reporting. And 

under the Court rules, Rule 11, the government is required to indicate to the Court if it is making an application that involves a new 

technology or a new legal issue. And so, what we have asked is 

that there be reporting of every Rule 11 case, and how many of 

those instances has a special advocate been appointed, and that 

way there can be oversight of the court process of appointment. 

But we do, again, think that it is appropriate for the judges to 

maintain some discretion. 

Ms. CHU. Would that report also include times when special advocates were not included, though? 

Mr. MEDINE. Right. How many times has Rule 11 application 

been forwarded, and how many of those instances has an advocate 

been appointed or not appointed? So again, if it is a significant 

case, one would assume it is likely that they would be, but there 

will be accountability to the public by the Court as to when they 

make those appointments. 

Ms. CHU. Now, you also advocate for the ability of the special advocates to request appellate review of court rulings. Why did you 

recommend this, and how would this strengthen privacy protections? 

Mr. MEDINE. In our American judicial system, we have a process 

by which district judges get reviewed by appellate bodies and ultimately the Supreme Court. We think that works effectively to have 

a dispassionate review by 3 judges at the appellate level and the 

9 justices at the Supreme Court. And we think that the FISA Court 

process would be improved by encouraging that development. 

And so, we would like to empower the advocate to bring to the 

FISA Court of Review, which is their appellate body, adverse decisions to the advocate and in favor of the government so that there 

could be greater review. Again, much as there would be in any case 

in the District Court system. 

Ms. CHU. Mr. Swire, many of us think that, of course, the language in the statute in which the Section 215 bulk collection of 

metadata is broad, but that the government’s interpretation of the 

relevant standard is even broader. The review group proposed a 

standard that the Court may only issue a 215 order if the government has reasonable grounds to believe that the particular information sought is relevant to an authorized investigation. And like 

a subpoena, the order has reasonable and focused scope and 

breadth. 
102 

Can you tell us how this standard would narrow the government’s inquiry so we could protect the American public in terms of 

its privacy interests? And how is this standard an improvement? 

Mr. SWIRE. Well, one change is that it would be a judge involved, 

and that is something that President Obama has recently said they 

are going to work with the FISA Court to do. A next change is to 

try to have these narrowing of scopes so that the bulk collection by 

the government prior to judicial looking at it would not occur. So 

it would be a narrowing in that respect as well. 

Ms. CHU. Also, the review group recognizes that intelligence programs, some, should remain secret. But you are also proposing that 

a program should be kept secret from the American public only if 

the program serves a compelling governmental interest, and if the 

efficacy of the program would be substantially impaired if our enemies were to know of its existence. 

If this proposed standard were in existence today, would the government have been compelled to disclose Section 215 bulk collection program? How is your standard an improvement over what we 

have today? 

Mr. SWIRE. Right. Well, our recommendation 11 talks about a 

compelling government interest, and there would be a process within the government. When that process happens, we emphasized 

having not only intelligence perspectives, but, for instance, economic perspectives, civil liberties perspectives, as part of a sort of 

comprehensive review. 

And I also note that on bulk collection, the President has asked 

John Podesta to lead a process for private and public sector bulk 

data which is supposed to come back with additional recommendations about bulk data within, I think, 60 days. 

Ms. CHU. Thank you. I yield back. 

Mr. GOODLATTE. The time of the gentlewoman has expired. The 

Chair recognizes the gentleman from Texas, Mr. Poe, for 5 minutes. 

Mr. POE. Thank you, Mr. Chairman. I have great concerns about 

this whole process. This is reminiscent to me of the old-fashioned 

star chamber where courts met in secret, issued their verdicts and 

edicts in secret. No one knew what happened until the sentence 

was carried out. 

I also spent some time in the Soviet Union when it was the Soviet Union. Everything I did and all the citizens did was spied on 

by the Soviets. And here we are in 2014 trying to justify what I 

think is spying on American citizens. 

Mr. Cole, I have a question for you, but I want to quote Mr. 

Medine in his testimony. He said, ‘‘Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to 

the United States in which the program made a concrete difference 

in the outcome of a counterterrorism investigation.’’ Mr. Cole, name 

one criminal case that has been filed based upon this vast surveillance and metadata collection. 

Mr. JAMES COLE. Congressman, I think there was one which was 

a material support case that was filed based on the 215 metadata 

where we were able to identify someone. And again, as I have said, 

this is not—— 
103 

Mr. POE. Reclaiming my time, as you know our time is limited. 

So how many criminal cases have been filed based upon this massive seizure? 

Mr. JAMES COLE. Well, the criminal support statute is a criminal—— 

Mr. POE. I understand. My question is how many. 

Mr. JAMES COLE. I do not know off the top of my head, Congressman. 

Mr. POE. There is one. 

Mr. JAMES COLE. There may be one. 

Mr. POE. There may be one. So we have this vast metadata collection on Americans, and the reason is, oh, we have to seize this 

information or we are going to all die because of terrorists. And you 

are telling me as a former prosecutor—I am a former judge and 

prosecutor—all this information has collected one criminal case, is 

that what you are saying, that you know of? 

Mr. JAMES COLE. Well, Congressman, the point of this is not necessarily to make criminal cases. 

Mr. POE. I am not asking you—— 

Mr. JAMES COLE. The point of it is to gather intelligence. 

Mr. POE. Reclaiming my time. My question is, one criminal case. 

That is all you can show for criminal cases being filed against individuals, right? 

Mr. JAMES COLE. I think that is the correct number, but I would 

have to go back and check to be sure. 

Mr. POE. It may not even be one. 

Mr. JAMES COLE. The point of the statute is not to do criminal 

investigations. The point of the statute is to do foreign intelligence 

investigations. 

Mr. POE. But the collection is on American citizens. When a warrant is signed—I signed a lot of warrants, Fourth Amendment. You 

know, I actually believe in the Fourth Amendment. A warrant is 

served. Police officers go out and investigate. They return the warrant, and it is filed as a public document in State courts and in 

Federal courts. But when collection on American citizens of their 

information, this is not made public to them. They never know that 

this information was seized from them, do they? 

Mr. JAMES COLE. Well, as I think even the PCLOB and the 

President’s review group have noted, the Fourth Amendment does 

not cover the collection of metadata under the current law. So it 

would not have those requirements. 

Mr. POE. I know that is the current law, but that is not my question. My question is, the information is seized from them. They do 

not know that their personal information was seized by the Federal 

Government. They do not know that. They are not protected under 

our current statute under the PATRIOT Act. Is that correct or not? 

Mr. JAMES COLE. The information does not come from them. It 

comes from the companies that they have phone service with. And, 

no, they are not informed directly that that metadata from those 

phone companies has been collected. 

Mr. POE. Do you have a problem with that information being 

seized on Americans through a third party and Americans never 

know that that they are the subject to this metadata collection? I 
104 

mean, do you have a personal problem with that, or do you think 

that is okay, the government ought to do that? 

Mr. JAMES COLE. These are the issues we grapple with every 

day, Congressman, as far as trying to do national security investigations and trying to protect people’s civil liberties. And we take 

leads from the Court as to the scope of the Fourth Amendment and 

where people’s reasonable expectations of privacy are. And these 

are difficult lines to deal with, and just what we are doing right 

now is trying to find where that right line is. 

Mr. POE. Well, I think it is an invasion of personal privacy, and 

it is justified on the idea that we have got to capture these terrorists. And the evidence, based on what you have told me, is all of 

this collection has resulted in one bad guy having criminal charges 

filed him. I think that is a bit over reaching to justify this massive 

collection on individuals’ personal privacy. That is just my opinion. 

I yield back to the Chair. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from Florida, Mr. Deutch, for 5 minutes. 

Mr. DEUTCH. Thank you, Mr. Chairman. General Cole, I am 

going to come at the judge’s line of questioning from a slightly different angle, but I think trying to get at the same point. In a September letter to NSA employees, General Alexander wrote that 

‘‘The Agency has contributed to keeping the U.S. and its allies safe 

from 54 terrorist plots,’’ and that 54 terrorist plots has been repeated on several occasions. 

Last week in testimony before the Senate, there were some officials from the Administration who suggested that terrorist plots 

thwarted is not the appropriate metric for evaluating the effectiveness of the program. And I would just like to understand has the 

argument changed, and if it has, why should we now apply a different metric to determine the success of this program if it is not 

criminal prosecutions and if it is not terrorist plots thwarted? 

Mr. JAMES COLE. A couple of things, Congressman. The 54 number, as I recalled it, was both 702 and 215. And the bulk of it, 

frankly, was 702 coverage. And that is a very, very valuable program, and, frankly, probably more valuable than 215. 

215 has a use, and it has a number of different uses. They are 

not as dramatic as 702, but they provide pieces of a puzzle. They 

provide tips and leads that allow us to then go and investigate and 

then gather other information. And that is really the value of 215. 

Mr. DEUTCH. But even if that 54 number that had been used 

does not apply primarily to the 215 program, you are telling me 

that the notion of terrorist plots thwarted even as it applies to this 

program is not the metric we should be using. 

Mr. JAMES COLE. It is not the only metric. Certainly it is a great 

metric, but I do not think it is the only metric we should be using. 

I think if we are gaining evidence that is valuable to us in doing 

investigations that help keep the country safe, that is a valuable 

metric. 

Mr. DEUTCH. Right. And Mr. Medine had told us earlier in his 

testimony, their first recommendation was to end the 215 program, 

and said that whatever successes you are referring to could have 

been replicated in other ways. Mr. Medine, is that right? And how 

could that have been accomplished? 
105 

Mr. MEDINE. Well, there are other authorities—grand jury subpoenas, search warrants, national security letters—that allow for 

access to the information without the need to collect bulk records. 

Mr. DEUTCH. And would have accomplished all of the same 

things that the 215 program does successfully. 

Mr. MEDINE. Substantially. Even the material support we talked 

about, but in many other cases. We looked at a lot of different 

metrics and based our recommendations on that. 

Mr. DEUTCH. Right. And when we talked about the suggestions 

going forward, the idea of moving this information away from the 

government, Mr. Swire, you had said that when we are talking 

about metadata held by or the suggestion of metadata to be held 

by private providers or private third parties instead of by the government. And, Mr. Cole, I think you said people are thinking outside the box about how to store this information. 

My question is this. The metadata that is being collected that 

you are comfortable moving to the private parties puts that 

metadata, does it not, and here is what I am concerned about. It 

puts the metadata that Mr. Medine and others believes is unnecessary to gather because it does not accomplish what is necessary. 

We can do it in other ways without intruding on people’s civil liberties. But if it is stored by private contractors, private parties, it 

is at risk then, is it not, of being stored with all of the other data, 

dramatically more intrusive personal data, that we turn over to 

private parties regularly when we go on the internet, regularly. 

It puts it in the same place with all of the information that we 

have been assured time and time again today this program does 

not do in terms of intruding on the specifics of our emails and the 

specifics of what we do on the internet, et cetera. It puts it all together. Why should that not be a concern of ours? 

Mr. SWIRE. Congressman, I think part of the question is are we 

creating extra risk as we shift things around—— 

Mr. DEUTCH. Exactly right. 

Mr. SWIRE [continuing]. And find ways to shift things around. 

When it comes to phone company telephone records, as has been 

mentioned earlier, the Federal Communications Commission already requires it to be there for 18 months. Phone companies have 

been holding phone company data for an awfully long time. 

Mr. DEUTCH. Right, and, no, I understand, and that point has 

been made earlier. But there was another suggestion made. I think 

one of your suggestions was that we may need to have some other 

party. We may need to look outside of the box. My concern is that 

we are creating more risk than already exists in the program that 

we do not even need. 

Mr. SWIRE. Right. And what we said, and our entire report is 

prefaced by a transmittal letter saying this is our best effort in the 

time we had to come up with things. And one of the suggestions 

we had was in addition to possibly the phone companies, maybe a 

private sector entity could hold this with the right sorts of safeguards, and that we should look for ways to transition. 

We did not say we had the magic answer. Each one of these has 

downsized. But we thought getting it away from a huge government database was a better way to go. 
106 

Mr. DEUTCH. Right, to a private database where risks could be 

even greater than they already are. I appreciate it, and I appreciate all the witnesses being here. I yield back. Thank you. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from Arizona, Mr. Franks, for 5 minutes. 

Mr. FRANKS. Well, thank you, Mr. Chairman, and thank all of 

you for being here. You know, it occurs to me that this Committee, 

the Judiciary Committee, has a unique role in Congress in the 

sense that it sort of epitomizes the entire purpose of government. 

Our job is to protect the lives and the constitutional rights of 

Americans. And sometimes it is difficult to make that balance work 

out right. 

You know, everyone on this Committee, I believe, wants to try 

to do everything that we can to protect the national security, to 

protect the lives of American people. But we also want to protect 

their constitutional rights in that process, and that requires us to 

make a clear distinction on how we go about that to where we 

maximize both. 

And I just have to suggest to you, without trying to sound argumentative, that this Administration has made it very difficult for 

us, because as Mr. Deutch has said and others, we feel that we 

have been blatantly deceived on what some of these programs have 

done and what they did. And consequently, it is hard for us sometimes to come up with the kind of architecture for any policy because we simply do not trust the Administration to be forthright 

with American people or us. And at the same time, I want to do 

the right thing here. 

So let me just ask you this question, Deputy Attorney General 

Cole. The President has made several recommendations for changing these data collection programs, including ending outright the 

bulk collection program. And then the last time the authorities 

were up for renewal, then the Administration, after they had said 

this, came before us and asked us to renew them completely. Now, 

help me understand that. Help me understand the contradiction 

there. 

Mr. JAMES COLE. I do not believe it is a contradiction, Congressman. I think it is just an evolution as people come to the debate 

and try to figure out the best way to do it, as we get the recommendations from the PCLOB and the President’s review group, 

as we look at the value of what we get from these programs. And 

I think what the President has said is he does believe that the 215 

program is valuable, but he is trying to find ways and has charged 

us with trying to find ways to accomplish as much and most of 

what that gives in other ways that will cause less concern for the 

American people, legitimate concern that they have about what is 

being done. 

Despite all of the court restrictions that are put on, despite the 

fact that as both groups found, there has been no intentional abuse 

of any of this, it has been well regulated and well minded, and it 

has been reported to the courts and Congress and the executive 

branch. There is still a faith that we want to keep with the American people about making sure that they are satisfied we are doing 

everything we can do. So that is where we are. It is an evolution 

more than a contradiction. 
107 

Mr. FRANKS. Attorney General Cole, I appreciate that. I just 

would suggest to you that the American people are clearly at odds 

with that understanding. They feel that they have been deceived, 

and I certainly cannot possibly come back to them and tell them 

they have not. 

But if I could shift gears and ask you, Mr. Medine, a question 

regarding 2315 that the Attorney General brought up. How can a 

bulk collection that potentially violates the First and Fourth 

Amendments be potentially unconstitutional, but individual collection is not? Help me understand the dichotomy there. I mean, if as, 

you know, the majority suggests here that the bulk collection of telephony metadata under Section 215 is constitutionally unsound, 

would the same not be true for individual 215 orders? 

Mr. MEDINE. First, the board did not say that the bulk collection 

was unconstitutional. What we did say is that there is a Supreme 

Court precedent, Smith v. Maryland, that says that records held by 

third parties are not entitled to Fourth Amendment protection. But 

we have also looked at the Jones case involving GPS tracking and 

seen a potential trend, especially in the voices of five justices, suggesting that this type of information was entitled to constitutional 

protection because of the breadth of its collection. 

So collecting information on hundreds of millions of Americans 

over an extended period of time is very different from collecting information on one person who may be a suspect for a short period 

of time. So we did not reach constitutional conclusion on that, but 

I think there is a distinction between those two scenarios. 

Mr. FRANKS. All right. Well, quickly, Judge Bates, who formerly 

sat on the FISC, recently wrote a letter objecting to the creation 

of a public advocate position, like Mr. Obama has suggested. He 

wrote that, ‘‘Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process 

nor constructively assist the courts in assessing the facts.’’ 

Attorney General Cole, I will ask you, do you agree with Judge 

Bates’ conclusion and tell me why. 

Mr. JAMES COLE. Well, I think the history of the Court has been 

that it has functioned quite well, and that the judges have been 

very earnest about trying to look at both sides. But I think, again, 

as we have started to think through this, there may be instances 

where the Court could benefit from another point of view, not in 

every instance. And the instances may be quite infrequent. But 

there are those where we think that another perspective may be 

helpful to the Court in reaching its conclusions. 

Mr. FRANKS. Mr. Chairman, I am out of time. Thank you, sir. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentlewoman from Washington, Ms. DelBene, for 5 minutes. 

Ms. DELBENE. Thank you, Mr. Chair, and thanks to all of you 

for being here today. Mr. Medine, I would like to talk about transparency and the impact of the Administration’s step to allow technology companies to be able to provide greater disclosure about the 

number of government requests they receive. 

Just yesterday many companies took advantage of the agreement 

reached with the DoJ and have provided new information to the 

public, which I think is a welcomed development. Do you think leg-
108 

islation that allows companies to provide more details to the public 

would be helpful? In particular, can you talk about the distinction 

between what the agreement last week allows and what you believe should happen? I am also a co-sponsor of the USA Freedom 

Act, and we also outline recommendations there. And I would love 

your opinion on that. 

Mr. MEDINE. Our board’s report recommends a number of areas 

where transparency could be greater so that there could be more 

public confidence in our intelligence programs, and so transparency 

with regard to the government’s request to companies is certainly 

a part of that. 

What our Board recommended is that companies be given an opportunity, in some cases a greater opportunity, to disclose government requests consistent with national security. And so, we have 

not had a chance to evaluate the arrangement that was struck with 

the Justice Department, but certainly it is a move in the right direction to allow the companies to make it clear what is collected 

and also to disabuse people, particularly overseas, and clarify that 

there is less collection going on than they think, which I think will 

actually help American businesses down the road. So we are very 

supportive in principle of doing this, but we have not examined the 

specifics of it. 

In terms of whether there is a need for legislation, I think we 

could evaluate how well the government struck its balance. But 

there are important national security concerns in revealing information, and it is important to do it in the right way. 

Ms. DELBENE. Okay. We would be interested in your opinion on 

that after you have had a chance to look at it in more detail. 

Mr. Cole, you stated last week the Administration had determined that the public interest in disclosing this information now 

outweighs the national security concerns that required its classification. And, you know, my position is that even greater disclosure 

is warranted in order to restore the credibility and trust of the 

American in our government. 

But I want to focus one particular element of the transparency 

agreement announced last week. In the letter you shared with companies’ general counsels last week outlining the terms of the agreement, you state that the government is able to designate a service 

or designate a new capability order, and thereby delay reporting on 

that service for 2 years. And I wondered what the criteria was that 

you would be using in making the decision of what a new capability 

would encompass. 

Mr. JAMES COLE. Well, I think the criteria is set out in the letter. 

It is a new platform or a service or a capability that we have not 

had before that would indeed be something new and that we would 

be, I think, going to the court and having it incorporated in the 

order. And so, it would be something where we have gained a new 

capability to intercept communications that we have not had before, so that if people are relying on our inability to be able to 

intercept that information—terrorists and people like that—that 

they will not all of a sudden see a spike if we come to adopt that 

view or that capability, and, no oh, I better get off this platform. 

Ms. DELBENE. But given that that is a rather vague definition 

of what a new capability is, because of a new version of what you 
109 

are doing right now, how do we know that that is not going to be 

used in such a broad way that basically ends up preventing disclosure of a lot of information that otherwise is covered in the agreement? 

Mr. JAMES COLE. I believe there is an avenue for the companies 

to go to the Court and challenge that, and certainly come to the 

Justice Department and challenge that, and say it, in fact, is not 

a new capability. And we can try and work that through, and the 

Court could find that it is not. 

Ms. DELBENE. And why do you believe that there has to be such 

a caveat in the agreement at all? 

Mr. JAMES COLE. From a national security standpoint so that 

people who are comfortable communicating over a certain type of 

capability do not all of a sudden realize that we can now intercept 

that capability. 

Ms. DELBENE. But do have a specific example in mind from 

what—— 

Mr. JAMES COLE. Nothing that I would want to talk about in an 

open hearing. 

Ms. DELBENE. Thank you, and I will yield back, Mr. Chair. 

Mr. GOODLATTE. The Chair thanks the gentlewoman, and recognizes the gentleman from South Carolina, Mr. Gowdy, for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. Mr. Chairman, I was 

going to pursue a line of questioning related to the balancing of 

constitutional principles, and two of them are at play here, national 

security and privacy. And then I was going to pursue a line of 

questioning related to the expectation of privacy and whether or 

not it can change with culture and technology. But two things happened, Mr. Chairman, on the long, arduous walk from your chair 

to mine. 

One was something my friend from Tennessee said, suggesting a 

link between appointing judges and how they rule. In fact, Mr. 

Chairman, our colleague from Tennessee said everything is politics, 

justices are politics. So I want to ask Mr. Swire, I am going to read 

you a list of names, and everybody on this list has at least two 

things in common, and I want you to see if you can guess what 

those two things are, okay? 

Mr. SWIRE. It is arduous for us, too, Congressman, but go ahead. 

Mr. GOWDY. David Souter, John Paul Stevens, Harry Blackmun, 

William Brennan, Earl Warren, and Anthony Kennedy. What do all 

of those justices have in common? 

Mr. SWIRE. I suspect you are pointing to the fact that they are 

Supreme Court justices nominated by Republican presidents. 

Mr. GOWDY. That is exactly what I am referring to. And what 

would be the second thing they have in common? Would you agree 

that they wildly underperformed if they were put there to pursue 

a conservative agenda? 

Mr. SWIRE. I am hesitant to say all these justices wildly underperformed on any criteria. 

Mr. GOWDY. You do not think Brennan wildly underperformed if 

we put him there to pursue a conservative agenda? 

Mr. SWIRE. I am sorry, which—— 
110 

Mr. GOWDY. Blackmun, Brennan. They cannot get you in trouble 

anymore. [Laughter.] 

Judges cannot take up for themselves, Mr. Chairman. They either cannot or will not. I just do not think it is appropriate to try 

to make links between who put somebody on the bench and how 

they are going to turn out because I just pointed to a half dozen 

that did not turn out the way we though they were going to turn 

out. 

The second thing that happened, Mr. Chairman, was Mr. Jordan’s line of questions. Mr. Cole, I am not going to ask you about 

the IRS targeting scandal for two reasons. Number one, you cannot 

comment on it, and I know you cannot comment on it, so I am not 

going to put you in a position of having to repeatedly say you cannot comment on it. The second thing you cannot do is explain to 

us why the President said what he said Sunday. So because you 

cannot explain it any more than anyone can explain it, I am not 

going to ask you about it. 

I am going to ask you to do one thing, and you do not have to 

comment on it. I am just going to ask you to do one thing, prosecutor to prosecutor. I am going to ask you to consider, in my judgment, how seriously the President undermined the integrity of that 

investigation by what he said, ‘‘not a smidgen.’’ Lay aside that is 

not a legal term, ‘‘not a smidgen’’ or scintilla of evidence to support 

corruption or criminality. 

This investigation is ongoing. I assume no conclusions have been 

reached, hence the word ‘‘ongoing.’’ And for him to conclude that 

there is no evidence of criminality whatsoever in the midst of an 

investigation I think undermines the hard work that the men and 

woman of your Department do. And I do not expect you to comment. I do not want you to comment, other than I would ask you 

to consider anew appointing special counsel under the regulations. 

The special counsel of regulation say it is appropriate in extraordinary circumstances. 

What we have been discussing all day today is the extraordinary 

circumstance of whether can you target under the Fourth Amendment. The IRS case is whether government has targeted people for 

the exercise of their First Amendment rights. So I do not think 

anyone would argue it is not extraordinary if there is an allegation 

that government is targeting someone. 

And the second part of the regulation speaks to the public interest. So I would just ask you to please respectfully reconsider in 

light of what was said Sunday night, which was there is nothing 

here, not a smidgen of criminality in the midst of an investigation 

that matters greatly to lots of people. The Chief Executive said 

move on. For no other reason than to protect the integrity of the 

justice system, which I know you care about and I care about, I 

would ask you respectfully to consider appointing someone as special counsel in light of what the President said Sunday night, because he seriously undermined the integrity, in my judgment, of 

what is an ongoing investigation. And with that, I will yield, Mr. 

Chair. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from New York, Mr. Jeffries, for 5 minutes. 
111 

Mr. JEFFRIES. I thank the Chair as well as the witnesses for your 

participation in today’s hearing. 

Mr. Cole, I want to go over a few questions related to the relevancy standard. I recognize this may have been ground covered 

earlier in the hearing, but if you would just indulge me. They will 

be pretty brief. 

Since the passage of the PATRIOT Act, which I believe was done 

in late 2001, how many actual terrorist plots have been thwarted 

connected to the new tools made available to law enforcement pursuant to this act? 

Mr. JAMES COLE. Well, I do not think that 215 was around in 

the original version of the PATRIOT Act. That came some time 

later. I do not know the exact number. 

Mr. JEFFRIES. Right. I am asking about the overall PATRIOT 

Act. 

Mr. JAMES COLE. I do not know the exact number. 

Mr. JEFFRIES. Okay. Now, as it relates to the bulk collection of 

metadata allegedly authorized by 216 that came subsequent to the 

initial creation of the PATRIOT Act, how many terrorist plots can 

be directly linked to this bulk collection? Am I correct that the answer is zero? 

Mr. JAMES COLE. I think the question is directly linked. There 

are tips and there are leads that come from the 215 metadata as 

I have said a number of—— 

Mr. JEFFRIES. Can you provide us with one example where a tip 

or a link actually led to the thwarting of a terrorist plot connected 

to this bulk collection? 

Mr. JAMES COLE. Well, alleged charges. It does not mean that 

there were not other tips and leads that led to further investigations that were valuable and helpful to the government. 

Mr. JEFFRIES. But it is fair to say there is no substantial connection between this bulk collection and the resolution or thwarting of 

any terrorist plot related to this particular authorization under 

215, correct? 

Mr. JAMES COLE. I think that may be correct, but I think that 

that is not always the only standard that is used. 

Mr. JEFFRIES. Right. Now, you referenced that earlier in your 

testimony. Can you give an example to the American people to justify this bulk collection outside of its alleged relevance, given that 

there has been no evidence, not a scintilla of evidence, presented 

that it has been relevant to any terrorist investigation? 

Mr. JAMES COLE. Well, I think it is relevant in a couple of ways. 

One is to be able to rule out that there are connections within the 

United States from terrorist plots that may be starting outside the 

United States. So it is very valuable to be able to know that so we 

can direct our resources very much at the core of what we are trying to look for. 

Mr. JEFFRIES. Now, do you think that the current relevance 

standard is a robust one? 

Mr. JAMES COLE. I think the current relevance standard is one 

that is used in both criminal and civil law, and it is a very broad 

standard. 

Mr. JEFFRIES. It is a very permissive standard in terms of what 

the government has been able to get access to, correct? 
112 

Mr. JAMES COLE. It is not unfettered. It has to be done in a way 

that is necessary. We cannot just take whatever we want any time 

we want for any purpose. We have to go to a court and justify the 

fact that we need this volume of records in order to find the specific 

things we are looking for under very restricted circumstances. And 

then the court has to say you have permission to do this. 

Mr. JEFFRIES. Right, but what is very troubling, and I would like 

to talk to Mr. Swire about this, it is my understanding that once 

that bulk collection has been obtained, that the standard of reasonable articulable suspicion as it currently exists is a decision made 

by a NSA supervisor, not by an independent member of the judiciary, correct? 

Mr. SWIRE. In the first instance, it is made by the analyst, and 

it is reviewed by a supervisor. 

Mr. JEFFRIES. Now, how is the Review Board proposing to change 

the absence of judicial consideration? 

Mr. SWIRE. As was true in 2009 when there were some difficulties with compliance, we recommended that it go to the FISA Court 

in individual instances for a judge to review. 

Mr. JEFFRIES. Are you saying in the first instance in terms of the 

authorization of bulk collection or subsequent collection to search 

the data there must be a judicial determination made? 

Mr. SWIRE. In this case, there is collection, and then there is reasonable articulable suspicion about some phone number. And at 

that point you would go to the judge and say, judge, here is our 

RAS, and here is why we think we should look at it. 

Mr. JEFFRIES. Okay. Now, as it relates to collection, there has 

been discussion and debate about which entity would be most appropriate, putting aside the question as to whether it is even proper for this information to be collected, and I think the jury is still 

out on that, and the balance of facts suggest that it is not. But assuming that this information is collected, I guess the proposals 

have included the private sector, telephone companies, and an 

independent third party yet to be identified. Has there been any 

consideration given to the judicial branch as a separate, but coequal, branch of government independent from the executive creating the mechanism to retain this data given the fact that a judicial determination at some point is going to be made as to whether 

it should be searched? 

Mr. SWIRE. Yes. I am not aware of the judicial branch holding 

databases and running those except for their own court records. So 

that would be quite a different function than I think what we have 

seen previously 

Mr. JEFFRIES. Okay, thank you. I yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman, and recognizes the gentleman from Texas, Mr. Farenthold, for 5 minutes. 

Mr. FARENTHOLD. Thank you, Mr. Chairman. Mr. Medine, you 

talked a little bit earlier in response to some questions about limited Fourth Amendment protections for information held by third 

parties. I think a lot of that is what Section 215 kind of bootstraps 

on. It gives the government broad authority to get a hold of that 

information. 

Just so the folks watching this and everybody understands, there 

is a difference between, like, if I have a file on my computer or if 
113 

I have a file on something on a cloud storage. I have more privacy, 

correct, in what is on my computer, more protection. 

Mr. MEDINE. Under current Supreme Court law, that is right. 

Mr. FARENTHOLD. And the same would be true for something 

sent by postal mail. I would have more privacy than something 

sent by email. That is kind of more traditional. And I would assume that, you know, a canceled check that I have in my drawer 

is more protected than the bank record. Is that something you 

think most Americans understand the difference in this day and 

age about information that is held electronically or held by third 

parties? Do you think most Americans understand that it is basically fair game? 

Mr. MEDINE. I suspect that they do not, but I think the key thing 

here is that, as you say, technology has changed dramatically since 

the Supreme Court’s decision in Smith v. Maryland, which was collecting a limited amount of information for one person over a short 

period of time as opposed to—— 

Mr. FARENTHOLD. Our ability to gather information has changed. 

So the courts could revisit this, but is it also not appropriate that 

Congress could revisit this and say you actually do have a reasonable expectation of privacy in certain things? 

Mr. MEDINE. That is exactly what the majority of our board has 

recommended is that based upon our legal analysis of Section 215, 

our constitutional analysis, which we say is heading in the direction of adding protections, and also our balancing national security 

with privacy and civil liberties, we saw a great impact of this program on—— 

Mr. FARENTHOLD. So let me just ask Mr. Cole, and I suspect I 

know the answer to this question. So if any of my information is 

held by a third party, do you see any substantial limitation on 

what Section 215 allows you guys to get? 

Mr. JAMES COLE. Yes, I see very significant limitations on what 

we could get being held by a third party. 

Mr. FARENTHOLD. All right. Let us just talk about some things 

that are probably held in bulk. We talked a lot about the metadata 

on telephone calls. Could geolocation data that is routinely reported 

back from cell phones be gathered? 

Mr. JAMES COLE. If there is a need, it may or it may not. 

Mr. FARENTHOLD. Bank records, credit card transactions, things 

like that? 

Mr. JAMES COLE. They may not be. It depends on whether there 

would be a need to show the connections where you would need the 

whole group—— 

Mr. FARENTHOLD. But under the rationale that you get all telephone records, could that not be extended to say, all right, we need 

all credit card transaction records, or all geolocation data so we can 

go back and mine it after the fact, from what we hear from the 

folks to your left, is a very limitedly effective program. 

Mr. JAMES COLE. Well, we are not mining the data, Congressman. That is not something—— 

Mr. FARENTHOLD. Or go back and searching it, I guess. 

Mr. JAMES COLE. Well, and we are searching only in a very limited way. 
114 

Mr. FARENTHOLD. Right, but the same argument that says you 

can collect all the phone data, could the exact same argument not 

be used for any other sorts of data that are collected by businesses 

in bulk? 

Mr. JAMES COLE. Not necessarily because the phone data connects two different people, and you have to look at those two different sets of information. 

Mr. FARENTHOLD. Right. So the geolocation data does the same 

thing. I go—— 

Mr. JAMES COLE. Not necessarily because it only focuses on one 

person and not—— 

Mr. FARENTHOLD. Right. But if you got the geolocation data, you 

could get everybody who is within 150 feet of me by rather than 

searching the person’s phone, you could search the law and where 

they are, and you could tell everybody who’s in this room right 

now. 

Mr. JAMES COLE. But there may be other ways to go about that 

without collecting all of the data for every single cell tower in the 

United States. 

Mr. FARENTHOLD. Okay. But do you believe that it would be legal 

for you all to do that? 

Mr. JAMES COLE. Only if there was a need. The Court’s rulings 

have really focused on the fact that there is a need under the facts 

and circumstances—— 

Mr. FARENTHOLD. All right. I see I am almost out of time, and 

I wanted to follow up on something that came up in the Oversight 

and Government Reform Committee last week. Can you tell us 

whether the NSA is playing any role in identifying, assessing, or 

classifying information about security threats or vulnerabilities associated with the healthcare.gov website? Are you aware of anything? 

Mr. JAMES COLE. I am not aware of anything, Congressman. 

Nothing that I am aware of. 

Mr. FARENTHOLD. Thank you very much. I yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman and recognizes 

the gentleman from Rhode Island, Mr. Cicilline, for 5 minutes. 

Mr. CICILLINE. Thank you, Mr. Chairman. I thank you and the 

Ranking Member for the warm welcome, and I look forward to the 

work of this Committee. Thank the witnesses for being here and 

for your testimony. 

I am, too, a proud sponsor of the USA Freedom Act and really 

associate myself with the remarks of my colleague, Mr. Sensenbrenner, and hope the urgency of action is clear to all of the witnesses and hopefully to our colleagues in the Congress. 

I share the view of many people that it is very difficult for me 

to understand how the existing statute authorizes this massive 

data collection of all Americans, and I am struggling to understand 

how that authorization is provided in the statute. But I want to 

ask a couple of very specific questions. 

One is I think there has been testimony from all three witnesses 

that there is not a lot of evidence, if any, that this action, this 

metadata data collection, has led to the interruption of a terrorist 

attack, but it has been useful in a variety of different ways. And 

since the private industry holds these records for 18 months, has 
115 

anyone looked at in the instances it has been useful what the time 

period has been? Has it been beyond the 18 months? If we were 

to change that to 24 months, would we cover all of the useful moments and not have to have the government collecting any of this 

data? Does anyone know the answer to that? 

Mr. JAMES COLE. I think that is one of the factors that we are 

trying to look at to see how long you need the data for. This was 

one of the issues when the President said, and we talked about cutting it down to 3 years instead of 5 years for holding it, is one step. 

And we may look further to see what the right amount of time is. 

Mr. CICILLINE. So with respect to the information we have currently, the benefits of in these instances where it has been useful, 

we do not know what that time period has been. 

Mr. JAMES COLE. We are looking into that. 

Mr. CICILLINE. Okay. The second thing I want to ask is, you 

know, we have this very deeply held belief in this country that the 

key parts to our justice system or two of the key parts are an independent neutral magistrate or judge. The current system allows 

the queries to be made by decisions made by someone other than 

a judge. And one of those reforms that has been recommended is 

that a FISA Court judge make that determination as a result of 

hopefully some adversarial process so that arguments can be made 

on both sides. That seems a very common sense reform. 

I would like to ask your thoughts about the national security letters because it seems to me the same kind of information can be 

collected through the national security letters that do not require 

a judicial determination. And it would seem to me that that would 

be a fairly easy reform to implement that says these letters can 

broadly collect lots of information without any judicial determination that it is necessary or appropriate. Why not impose the same 

requirement? And I know, you know, the argument always is, oh, 

it is too much, you know. It will require lots of extra hours. 

Setting aside the fact that it will be a lot of work for some folks 

and that we are prepared to fund that, does it not make sense that 

we ensure that there is a judicial determination as to the propriety 

of the information sought that can be quite broad? And I would like 

all three of you to comment on that. 

Mr. JAMES COLE. First of all, you have to understand national 

security letters are not as broad as other things, other kinds of subpoenas, grand jury subpoenas, even administrative subpoenas 

under the Controlled Substances Act or 215 authorities. It is more 

limited. That being said, it is much like an administrative subpoena or a grand jury subpoena, which does not involve any prior 

judicial approval before they are issues. Any judicial involvement 

comes on the back end if people do not comply with it. 

And they are very routine. They are used—— 

Mr. CICILLINE. But those grand juries—excuse me for interrupting—those grand jury subpoenas require the participation of 

grand jurors, of citizens, to make a determination—— 

Mr. JAMES COLE. They do not issue them themselves. There usually can be just a blanket authority from the grand jury to go 

issue—— 

Mr. CICILLINE. But it requires action of citizens to authorize it. 

In this case, the national security letters, there is no participation 
116 

of citizens. It can be a NSA official that makes that determination 

with no either citizen participation or judicial participation. 

Mr. JAMES COLE. Actually grand jurors usually do not participate 

in the decision to issue a subpoena. They receive the evidence that 

comes as a result of it and consider it, but they do not usually get 

involved in the issuance of the subpoena. That is usually done by 

the prosecutor. 

Mr. CICILLINE. So is it your position that having a judicial determination of the national security letter request is not appropriate? 

Would that not provide additional protection against an intrusion 

into the privacy rights of citizens with a de minimis kind of intervention by a judicial officer? 

Mr. JAMES COLE. I do not think it would provide any significant 

protection against privacy invasions for citizens. There are still administrative subpoenas, grand jury subpoenas, lots of things like 

that that go well beyond what a national security letter can do. I 

do not see the point of it. 

Mr. CICILLINE. Mr. Swire? 

Mr. SWIRE. Our report came out in a different place, and we did 

recommend a judge. And in terms of the comparison with a grand 

jury subpoena, here are two differences that are not always 

stressed. One is that the NSLs stay secret under current law probably for 50 years, and that is very different. And the second way 

from what happens in a criminal investigation where if there is a 

problem with the investigation, the criminal defendant and his or 

her lawyer find out about it quickly, and that is a check on over 

reach. 

With NSLs, the person who is being looked at does not get that 

kind of notice, so you do not have a built in check against using 

it too much. 

Mr. MEDINE. Our board unanimously recommended that the RAS 

determinations, reasonable articulable suspicion, immediately go to 

the Court, after the fact, for judicial oversight of that program. 

Going forward, the only thing I would say is, because we have 

not studied national security letters on our Board as yet, to consider that we not make it a higher standard to collect 

counterterrorism information than we do in ordinary criminal 

cases, to look more broadly overall at how are these programs operating. 

Mr. CICILLINE. Thank you. I thank you, and I yield back. 

Mr. GOODLATTE. The Chair recognizes the gentleman from North 

Carolina, Mr. Holding, for 5 minutes. 

Mr. HOLDING. Thank you, Mr. Chairman. Mr. Swire, with private 

parties holding metadata, what kind of liability do those private 

parties have for any misuse of the metadata? 

Mr. SWIRE. So a phone company today, if it is hacked into or if 

they turn it over when they are not supposed to turn it over? 

Mr. HOLDING. First, you know, if they are hacked into, I guess 

there would be some determination as to whether they have taken 

adequate steps to protect the data. So what liability do they have 

there? What liability do they have if they turn it over to the government, and for some reason the government misuses it? Are 

there any immunities that these third parties have? 
117 

Mr. SWIRE. So there is not an immunity if they lack reasonable 

security. Most of them have privacy policies where they said they 

are going to use reasonable security measures. The Federal Trade 

Commission or the Federal Communications Commission could 

bring a case against it. Private tort suits have not succeeded mostly, but the government could come in. 

When it comes to the second part, I think that comes up with the 

scope of the immunity that Congress included in the law the last 

time around. I do not know all the contours of that, but it is quite 

immunity is my understanding. 

Mr. HOLDING. And, of course, if we set it up so these third parties are retaining this information for a longer period of time, I assume that they would want additional assurances of immunities. 

Mr. SWIRE. I predict they would want that, yes. 

Mr. HOLDING. Mr. Cole, you would certainly agree that we live 

in a dangerous world. 

Mr. JAMES COLE. I am sorry? 

Mr. HOLDING. We live in a dangerous world. 

Mr. JAMES COLE. Yes, we do. 

Mr. HOLDING. And the dangers are overseas, and they are at 

home. 

Mr. JAMES COLE. That is correct. 

Mr. HOLDING. There are plenty of people who wish us great 

harm. And in the years subsequent to 9/11, the danger may have 

changed, but I do not think the danger has diminished. 

Mr. JAMES COLE. That is correct. 

Mr. HOLDING. In fact, it may have increased. 

Mr. JAMES COLE. It has become different, and it has become a 

lot more difficult to detect. 

Mr. HOLDING. And you have mentioned several times and the 

other Members have mentioned several times about the use of the 

metadata in 215. And, you know, some people pointed out that, you 

know, no criminal case has been brought, you know, on the basis 

of metadata queries. But you pointed out that it is a part of a fabric of an investigation. I would like to think of it as a mosaic when 

you are putting together an investigation, whether it is public corruption, or a sophisticated drug conspiracy, or indeed, you know, a 

terrorism investigation. 

I want to give you a few minutes to spin a hypothetical based 

on your experience as a prosecutor and as, you know, someone who 

oversees a lot of investigations, a hypothetical where the Section 

215 metadata is used as a piece of that mosaic. And to give some 

context to the conversations, you know, that we have had back and 

forth, and kind of what that mosaic looks like. 

Mr. JAMES COLE. Well, obviously there is any number of different 

ways it could play out. But one possible scenario is you have reasonable articulable suspicion that a certain phone number is connected with a certain terrorist group, and you then inquire about 

it, and you see calls to and—— 

Mr. HOLDING. Now let us back up a little bit. And how would you 

come about one of these telephone numbers? 

Mr. JAMES COLE. Well, that could be from any number of other 

sources of intelligence, and without going into too much detail, 

there is a lot of information that feeds in that helps inform how 
118 

we come to those conclusions if there is, in fact, reasonable 

articulable suspicions. But it has to be documented. It is not just 

something that is floating in the air. It has to actually be written 

down so somebody can read it, look at. A supervisor can determine 

that, in fact, it is reasonable articulable suspicion, and authorize 

the inquiry to be made. 

At that point, we just have the phone number. We then look at 

who that phone number has called, and we may see that there are 

a number of calls to another number. At that point, we do not 

know who that is, but we may then give that information to the 

FBI. They may then through a national security letter or something else determine who that number belongs to. They may then 

be able to look at other holdings that they have and other information they have that indicates that that other number is, in fact, 

somebody that they have been investigating for terrorism. And 

then they start putting that together, and the investigation starts 

to blossom from there. That is one of the ways that this could play 

out. 

Mr. HOLDING. So the metadata may not be the smoking gun, but 

it certainly puts not only a piece of the mosaic, but it might be like 

the cement that kind of puts the mosaic together, hooks it to another part. 

Mr. JAMES COLE. It is tip or a lead. It starts the process going. 

Mr. HOLDING. Thank you. Mr. Chairman, I yield back. 

Mr. GOODLATTE. I thank the gentleman, and the Chair recognizes the gentleman from Georgia, Mr. Collins, for 5 minutes. 

Mr. COLLINS. Thank you, Mr. Chairman. I appreciate the time. 

And I am probably not going to spend the whole time because one 

of the things that I want to focus on here is probably the question, 

is I think from the sense—Mr. Cole, you have been here many 

times, and we have had these conversations. Others have been here 

as well. Today the Committee, especially Judiciary, reminds me 

more of a P90X workout. One side you are going hard for 5 minutes, and then the next time, whew, I rest for 5 minutes. [Laughter.] 

Hard for 5 minutes, rest for 5 minutes. And what happens here 

is you see a unilateral sort of discussion and understanding that 

what we have that nobody is comfortable with. They are not. They 

do not want to put our national security at risk. Nobody on this 

panel, nobody in this Congress, and many people in the country, 

they do not want to put—but they are also very uncomfortable with 

the collection. They are very uncomfortable with the way it has 

been dripped out of this is what is happening now, this is what is 

happening now, 2 weeks later here is what is happening. By the 

way, we are now angry birds, you know. Whatever it is, it is just 

dripping out. 

And so, every time we begin to maybe put a hold on it, it becomes a deeper problem with another revelation, and some of that 

was definitely not intended. Some of that was leaked maliciously, 

and I recognize all that. And from my part of Georgia, people understand national security. They understand patriotism. That is 

not the problem. What they do not understand is a loss of trust in 

the government, frankly a loss of trust in this Administration, a 

loss of trust. 
119 

So what I really would like to focus on just for a moment, and 

if you have a lot you want to say, great. If you do not, then that 

is okay. But I think we have discussed a lot of specific recommendations. We have talked about have you found out, have you 

showed it. The mosaic, as my dear friend from North Carolina 

talked about, about investigations. But mine goes back to an essential question that this Congress will have to ask, and I believe it 

is the only reason that the President came out and said we need 

to change this, we need to look at this, is because, frankly, the poll 

numbers are bad. You have been looking at this for 5 years. You 

knew it for 5 years. And now it is, well, this is getting bad, we need 

to get ahead of this, let us show leadership, the whole crowd is up 

there, let me run in front and lead. The problem is trust. 

So my question as we look at this, no matter what recommendations may come here, and I have associated with many on both 

sides of the aisle of the problems that we have, is in my district 

and in many others, NSA has become not a three-letter word, but 

a four-letter word. It has become something that they just do not 

understand and they do not trust anymore. 

So my question is, no matter what recommendations we give— 

any of you want to talk about it—for just a moment, how do we 

restore that? And that is the basic question here. How do we restore trust? 

Mr. JAMES COLE. Congressman, I think you raise a very, very 

important point, which is trust. We come to this through years of 

both Republican and Democratic Administrations where the intelligence community has determined that it is appropriate to classify 

a lot of things information that we are now talking about in open 

hearings. And they had a good faith determination at the time that 

it should be classified for the national security and safety of our 

country. 

It is out, and we are talking about it. And the American people 

deserve to have answers, and they deserve to have a level of transparency that makes them comfortable about these things. And I 

think that this Administration, quite frankly, has taken the bull by 

the horns, and these are not easy issues. These are not easy resolutions. These are not easy balances to find. But this Administration 

has gone very far in trying to be transparent, in trying to bring 

these programs back into line, in trying to balance how far we can 

go, how transparent we can be, how many civil liberties and privacy interests we have to respect, and how much of the national 

security side we have to respect, and where that balance is. And 

these are tough balances. 

You are not going to do it overnight. You are not going to sit 

there and say, oh, that is easy. Let us just go over and disclose all 

of this, or let us just not collect this information. These are things 

that if you do not collect it and something blows up, people are 

going to be very angry. But these are also things that if you do over 

collect, and you do over classify, and you do inhibit people’s civil 

liberties, they are going to be upset about that, too. So we have to 

find that balance, and I wish it were easier, but it is not. 

Mr. COLLINS. And, look, I respect that, and you have been up 

here, and you are an advocate of what the Administration is doing, 

and I get that. But I think the trust factor is the biggest issue, and 
120 

*The corrected date of the submitted letter is January 13, 2014. 

**See Appendix for submitted material. 

***The PCLOB report document submitted for the record is not reprinted here but can 

be accessed at: http://www.pclob.gov/SiteAssets/Pages/default/PCLOB-Report-on-the-TelephoneRecords-Program.pdf. 

I think it was not grabbing the bull by the horns. I think it was 

grabbing a microphone and saying I will make you feel better, and 

I understand that. But at the same point, it does not go to the 

heart of the question. It does not go to that trust issue on how we 

in this Congress can explain that, and how the Administration can 

make it look more instead of a public appearance and we are going 

to PR, how we actually solve this. 

Look, I respect everyone. Thank you for being here. But that goes 

back to the real issue. This is a trust issue. We can do the recommendations, but we have got to get back to trust, and we just 

do not have that trust right now. 

Mr. Chairman, I yield back. 

Mr. GOODLATTE. The Chair thanks the gentleman, and the Chair 

thanks all of our witnesses on this first panel. You have taken a 

large number of questions, and we appreciate the input to the 

Committee. 

I want to ask unanimous consent to place the following documents into the record: Annex A of the PCLOB report, separate 

statement of board member Rachel Brand; Annex B of the PCLOB 

report, separate statement of board member Elizabeth Collins 

Cook; comments of the judiciary on proposals regarding FISA; a 

letter written by the Honorable John D. Bates, director of the Administrative Office of the United States Courts on January 10, 

2014;* Presidential Policy Directive Number 28, the President’s directive regarding signals intelligence issued January 17, 2014.** 

I want to thank all the members of the panel, and you are excused. And we will—— 

Mr. NADLER. Mr. Chairman? 

Mr. GOODLATTE. Yes? 

Mr. NADLER. May I ask unanimous consent that we admit into 

the record the entirety of the PCLOB report since the dissenting 

views are going be—— 

Mr. GOODLATTE. Without objection, that will be made a part of 

the record as well.*** 

Mr. NADLER. Thank you. 

Mr. GOODLATTE. And we thank all of our panelists. 

Mr. JAMES COLE. Thank you, Mr. Chairman. 

Mr. GOODLATTE. And we will move onto to the next panel. We 

are expecting a vote soon, but we want to keep moving. 

[Pause.] 

Mr. GOODLATTE. We welcome our second panel today, and if all 

of you would please rise, we will begin by swearing you in. 

[Witnesses sworn.] 

Mr. GOODLATTE. Thank you very much. Let the record reflect 

that all of the witnesses answered in the affirmative. 

Our first witness of the second panel of witnesses is Mr. Steven 

G. Bradbury, an attorney at Dechert, LLP, here in Washington, 

D.C. Formerly, Mr. Bradbury headed the Office of Legal Counsel 

in the U.S. Department of Justice during the Administration of 
121 

George W. Bush, handling legal issues relating to the FISA court 

and the authorities of the National Security Agency. 

He served as a law clerk for Justice Clarence Thomas on the Supreme Court of the United States and for Judge James L. Buckley 

of the United States Court of Appeals for the D.C. Circuit. Mr. 

Bradbury is an alumnus of Stanford University and graduated 

from Michigan Law School. 

Our second witness is Mr. Dean C. Garfield, president and CEO 

of the Information Technology Industry Council, a global trade association that is a voice advocate and thought leader for the information and communications technology sector. Previously, Mr. Garfield served as executive vice president and chief strategic officer 

for the Motion Picture Association of America. 

Mr. Garfield is a regular contributor to the Huffington Post and 

has been featured in several national and international publications representing the ICT industry. Mr. Garfield holds degrees 

from Princeton University and New York University School of Law. 

Our third witness is Mr. David Cole, a professor of law at 

Georgetown University Law Center. He is also the legal affairs correspondent for The Nation and a regular contributor to the New 

York Review of Books. He is the author of seven books. 

Mr. Cole previously worked as a staff attorney for the Center for 

Constitutional Rights from 1985 to 1990 and has continued to litigate as a professor. He has litigated many constitutional cases in 

the Supreme Court. Mr. Cole received his bachelor’s degree and 

law degree from Yale University. Mr. Cole has also received two 

honorary degrees and numerous awards for his human rights work. 

I want to thank you all for being here today. We ask that each 

of you summarize your testimony in 5 minutes or less, and to help 

you stay within that time, there is a timing light on your table. 

When the light turns from green to yellow, you will have 1 minute 

to conclude your testimony. When the light turns red, it signals the 

witness’ 5 minutes have expired, but I think you all know that. 

And I thank you all. And we begin with Mr. Bradbury. Welcome. 

TESTIMONY OF STEVEN G. BRADBURY, DECHERT, LLP 

Mr. BRADBURY. Thank you, Mr. Chairman. 

The independent judges of the FISA court have repeatedly 

upheld the legality of the NSA programs, and the President has 

strongly affirmed that they remain necessary to protect the United 

States from foreign attack. While I welcomed the President’s defense of the programs in his recent speech, I’m disappointed that 

he decided, evidently at the last minute, to pursue changes in the 

telephone metadata program recommended by his review group. 

The President wants to move the metadata into private hands. 

I don’t believe that’s workable, not without seriously affecting the 

operation of the program and creating new data privacy concerns. 

The current program allows NSA to combine data from multiple 

companies into a single, efficiently searchable database and preserve it for historical analysis. This database is among the most effective tools we have for detecting new connections with foreign terrorist organizations. Moving this database outside NSA would require ceding control to a private contractor, since no single phone 

company has the capacity to manage all the data. 
122 

Putting a private contractor between NSA and the data would 

compromise the utility and responsiveness of this asset. It would 

also reduce the security of the data. Today, the database is kept 

locked down at Fort Mead, with access strictly limited by court 

order and stringent oversight. If it were outsourced to a contractor, 

the data would likely reside in a suburban office park on much less 

secure servers. 

It would be vulnerable to privacy breaches and cyber incursions 

from foreign governments and terrorist groups. It could be exposed 

to court-ordered discovery by litigants in civil lawsuits, and the 

contractor’s employees would be much less subject to direct oversight by the executive branch, the FISA court, and Congress. Those 

are not desirable outcomes. 

The President also intends to require FISA court approval of the 

reasonable suspicion determinations before NSA could query the 

database. This change moves us back toward the pre-9/11 approach. It will inevitably hamper the speed and flexibility of the 

program, particularly if it requires separate court approval of each 

query, and it will place a substantial new burden on the FISA 

court. Requiring the involvement of lawyers and court filings will 

impose a legalistic bureaucracy on a judgment call more appropriately made in real time by intelligence analysts. 

Finally, the President ordered NSA not to analyze calling records 

out to the third hop from the seed number, something the NSA 

only does when there’s a specific intelligence reason. Why should 

we needlessly forego these potentially important intelligence leads? 

Beyond the changes endorsed by the President, I urge this Committee to reject most of the other major proposals for curtailing 

FISA. The most sweeping proposal would restrict the use of Section 

215 to individual business records directly pertaining to a specific 

person. 

A similar proposal would limit NSA to conducting queries of the 

telephone calling records only while the data is retained by the 

companies in the ordinary course of business. These restrictions 

would kill the metadata program by denying NSA the broad field 

of data needed to conduct the necessary analysis. 

At the same time, denying NSA the ability to access metadata 

in bulk would preclude the historical analysis of terrorists’ calling 

connections, which is among the most valuable capabilities of the 

215 program. Any requirement to shorten the data retention period 

would degrade our ability to discover important historical connections. 

One further proposal would attempt to convert FISA into an adversary process by establishing some form of public advocate. This 

proposal would raise significant constitutional concerns, both if the 

President is required to share sensitive national security secrets 

with an adversary and if the public advocate were given the power 

to oppose each FISA application and to appeal a decision of the 

FISA court. 

Such an officer would lack the Article III standing necessary to 

initiate an appeal and would occupy a gray zone outside the three 

branch framework established in the Constitution. 

Instead of creating a formal office of public advocate, the President wants to set up a panel of pre-cleared outside advocates who 
123 

could be called upon by the FISA judges to submit amicus briefs 

on significant questions. This proposal is less objectionable if it 

leaves to the FISA judges the decision to call for amicus input and 

preserves the President’s discretion to decide whether the amicus 

gets access to classified information. 

Of course, any requirement that an outsider be granted access to 

the intelligence information available to the court will chill the executive branch’s willingness to disclose the most sensitive details 

relevant to FISA applications. As the FISA judges recently pointed 

out, this disincentive would threaten the relationship of trust between the Justice Department and the FISA court, something this 

Committee should strive to avoid. 

Many of these reforms, Mr. Chairman, run the risk of re-creating 

the type of cumbersome, overlawyered FISA regime that proved so 

inadequate in the wake of 9/11. If our Nation were attacked again, 

I am concerned that a future President may feel the need to fall 

back on Article III authority to conduct the surveillance necessary 

to protect the country, and I don’t think any of us would like that 

outcome. 

Thank you very much. 

[The prepared statement of Mr. Bradbury follows:] 
124 

TESTIMONY OF STEVEN G. BRADBURY 

Before the 

HOUSE COMMITTEE ON THE JUDICIARY 

Hearing on 

Examining Recommendations to Reform FISA Authorities 

February 4,2014 

Thank you, Chainnan Goodlatte, Ranking Member Conyers, and 

distinguished Members of the Committee. 

I'm honored to appear before the Committee today to discuss the foreign 

intelligence programs of the National Security Agency ("NSA") and to offer views 

on the major refOTIllS announced by the executive branch or currently under 

consideration in Congress or proposed by various boards and review groups for 

modifying or curtailing the NSA's programs and for amending key provisions of 

the Foreign Intelligence Surveillance Act, or "FlSA."J 

Summary 

Any debate over proposals to restrict the NSA activities revealed by Edward 

Snowden's leaks or to make significant amendments to FISA in response to those 

leaks should carefully consider whetller tile foreign intelligence programs that 

would be affected by the proposals are lawful and whether they continue to be 

necessary to defend tile country. 

In his speech on January 17,2014, the President made it clear that after 

extensive review of the NSA programs, he has concluded (1) that the programs are 

lawful in all respects-authorized by statute and consistent with the Constitution, 

(2) that they remain necessary to protect the United States from foreign attack, and 

(3) that tllere have been no intentional abuses of the programs. If the NSA 

1 The author is an attorney in Washington, DC, and the former head of the Office of 

Legal Counsel in the U.S. Department of Justice from 2005 to 2009, where he advised the 

executive branch on legal matters relating to national security, including surveillance authorities 

under FISA. The views presented are solely the personal views of the author and do not 

represent the views of his law firm or of any current or fonner client. 
125 

programs are lawful and consistent with the Constitution and if, in the estimation 

of the executive branch and the relevant committees of Congress, they remain 

necessary to protect the Nation from foreign threats, then the President and 

Congress should be very wary indeed about approving any changes in the 

progranls that might lUldermine their effectiveness or that might diminish the 

ample existing security measures, privacy protections, and oversight protocols 

under which they operate. 

For the reasons I explain in detail in part I o/this testimony (pages 5-14 

below), I agree with the President that there is no serious argument that the NSA 

programs as currently configured violate any applicable statutory or constitutional 

restrictions. The independent federal judges who sit on the FISA court have 

repeatedly scmtinized these programs over the past several years and ensured that 

they comply in all respects with the requirements ofFTSA and are fnlly consistent 

with the Fourth and First Amendments ofthe Constitution. The FISA court's 

decisions confirm that both the bulk telephone metadata acquisition and focused 

analysis currently occurring under the business records provision ofFISA 

(commonly known as section 215 of the PATRIOT Act) and the broad foreigntargeted surveillance of intemational communications conducted under section 702 

of FISA comply in all respects with the Constitution and the terms of the relevant 

statutes and are consistent with the intent of Congress. 

With respect to the telephone metadata collection, in particular, this prob'fatn 

has been approved on 37 occasions by at least 15 different federal judges on the 

FISA court and at least two other district court judges. No court has held that the 

telephone metadata program exceeds the statutory authority granted in section 215 

to acquire business records that are "relevatlt to" atl authorized counterterrorism 

investigation. The recent decision by Judge Richard Leon, which is currently 

stayed pending appeal to the D.C. Circuit, addressed the Fourth Amendment 

implications of the telephone metadata collection but did not address its compliance with section 215. 

Moreover, a review ofthe FISA court opinions recently declassified and 

released to the public amply demonstrates that the FISA court is no rubber stamp 

for the surveillance policies of the executive branch. The judges of the FlSA court, 

as well as the attomeys of the National Security Division of the Justice Department, the Inspectors General ofthe Intelligence Community and the ./ustice 

2 
126 

Department, and the diligent oversight of the Intelligence COlllmittees of Congress, 

have held the NSA to the highest standards in the operations of these programs, 

including by ordering the prompt correction of significant compliance issues 

identified to the court by the Agency and its overseers. 

Indeed, I understand that all Members of Congress, specifically including 

the Judiciary Committees, were informed about the details of these two NSA 

programs or were at least given the opportunity to receive such briefings in 

connection with the reauthorizations of sections 215 and 702. The large majorities 

of both Houses that voted to reauthorize these statutes in 2011 and 2012 therefore 

represented, at least constTIlctively, a clear approval and ratification of the legal 

interpretations supporting the NSA's collection and surveillance activities, 

including the bulk acquisition of telephone metadata. 

As explained in part /I of tit is testimony (pages 15-16 below), I also accept 

the judgment of the President, the Director of National Intelligence ("ON I"), and 

Gen. Alexander, the outgoing Director of the NSA, that the NSA programs 

revealed by Snowden are critically important to preserving the security of the 

United States and its allies and that these programs continue to mal(e an essential 

contribution to our counterterrorislll defenses. From everything I know, these 

progranls are, as they were designed to be, among the most effective tools for 

detecting and identifying connections between foreign terrorist organizations and 

active cells within the United States and for discovering new leads, including new 

phone num bers, in furtherance of counterterrorism investigations. With respect to 

the telephone metadata program conducted under section 2 15, both the President 

and Michael Morrell, fonner Deputy Director of the CIA and a member of the 

President's Review Group, have stated that if this program had been in place 

before September 2001, it might have prevented the attacks of 9/11, and it has the 

potential to help prevent the next 9/11. 

If that's true, it is the duty of the President to stand up and defend the 

programs before the A.merican people and COnb'Tess. I'm pleased that the 

President finally spoke out in strong defense of these programs 311d the work of the 

dedicated officers of our intelligence agencies in his speech of January 17, though, 

as explained more fully below, it's disappointing that the President nevertheless 

felt the need to bow to political pressures 311d to propose changes in the operation 

3 
127 

of the telephone metadata program that could significantly diminish the 

effectiveness of the program and could compromise the security of the database. 

I'm also gratified that the leaders of the House and Senate Intelligence 

Committees have clearly and consistently defended the programs and the integrity 

of the NSA. I'm hopeful that through these hearings and debates, a majority of all 

Members of the House and the Senate will be convinced of the need to support and 

preserve these essential foreign intelligence capabilities in the face of popular 

reaction. The national interest must trump narrow political interests. 

Fillal~y, ill part III of this testimollY (pages 16-21), I explain the reasons for 

my conviction that all of the major proposals lUlder consideration for curtailing, 

restricting, or modifying the NSA programs (most especially the section 215 

telephone metadata program) and for refonning the scope and use ofFTSA 

authorities in reaction to the Snowden leaks should be rejected. These include the 

President's announced refonns to the section 215 telephone metadata program and 

the major reform recommendations of the President's Review Group and the 

Privacy and Civil Liberties Oversight Board. 

As discussed in more detail below, certain of these refonns or reform proposals would expose the Nation to vulnerability by substantially weakening or 

even destroying outright the effectiveness of the 215 program. Other proposals 

would significantly diminish the ability of the government to ensure the security 

and oversight of the program. Still others would unnecessarily hamper foreign 

intelligence efforts by adding layers of lawyering or litigation-like process that 

would not actually achieve greater civil liberties protections for the public but that 

would, I fear, prove dangerously unworkable in the event of the next catastrophic 

attack on the United States. 

I therefore strongly urge the Committee to avoid endorsing proposals for 

substantialmodi±lcation of the NSA progranls or FISA provisions. If reforms are 

adopted that would severely constrain the effectiveness and utility of the NSA 

programs, then Edward Snowden and his collaborators will have achieved their 

explicit objective of weakening the national security defenses and capabilities of 

the United States and diminishing the position of strength that America occupies in 

the world post-91l1. These harms to our national security would come with no 

significant corresponding enhancements to civil liberties. 

4 
128 

I. The NSA Programs Satisfy All Statutory and Constitutional Requirements 

I have previously explained in detail why both the section 215 bulk acquisition of telephone metadata and the section 702 foreign-targeted surveillance of 

international communications are authorized by statute, consistent with the 

Constitution and congressional intent, and appropriately protective of privacy and 

civilliberties2 I will not repeat the full analysis here, but I do offer the following 

points. 

Section 215 Telephone Metadata Program. 

The telephone metadata acquired by the NSA under the section 215 business 

records order consists only of tables of numbers indicating which phone numbers 

called which numbers and the time and duration of the calls. It does not reveal any 

other subscriber infonnation, and it does not enable the government to listen to 

anyone's phone calls. 

The Fourth Amendment does not require a search warrant or other 

individualized court order for the government to acquire this type of purely 

transactionalmetadata, as distinct from the content of communications. The 

acquisition of such call-detail information, either in bulk or for the communications of identified individuals, does not constitute a "search" for Fourth Amendment purposes with respect to the individuals whose calls are detailed in the 

records. The infonnation is voluntarily made available to the phone company to 

complete the call and for billing purposes, and courts have therefore consistently 

held that there is no reasonable expectation by the individuals mal(ing the calls that 

this infornlation will remain private. See Smith v. Maryland, 442 U.S. 735, 743-44 

(1979). 

In his recent decision granting a motion for a preliminary injunction of the 

metadata program, which is now stayed pending appeal, Judge Richard Leon of the 

federal district court in D.C. reasoned that the Supreme Court's decision in Smith 

2 See Steven G. Bradbury, Understanding the NSA Programs: RIIlk Acquisition of 

Telephone Me/adata under Seclion 215 and }()reign-Targeled Col/eclion under Sec/ion 702, I 

Lawfare Res. Paper Series NO.3 (Sept. 2013), availahle al http://www.lawfareblog.com/wpcontentluploadsi20 13/0S/Bradbury -Vol-l-N 0-3. pdf. 

5 
129 

v. Maryland has become obsolete in the era of smartphones and fully functional 

wireless digital communications. But the calling-record data collected by the NSA 

is almost exactly the same data the police collected in Smi Ih: the phone numbers 

dialed and the date and time of those calls. In Smith, the Court held that telephone 

customers have no reasonable expectation of privacy in these transactional records, 

and ever since the Court's 1967 decision in Katz v. United States, 389 U.S. 347 

(1967), a reasonable expectation of privacy has been the measure for what constitutes a search under the Fourth Amendment. For that reason, the federal courts of 

appeals and all other district courts before Judge Leon have consistently followed 

Smith and applied its holding to other developing technologies, including the 

collection of e-mailmetadata3 

Although Judge Leon's mling emphasizes the "all-encompassing" and 

"indiscriminate" nature of the NSA's metadata collection, the breadth of the data 

collection does not alter anyone's reasonable expectations of privacy. If anything, 

the use of a pen register to target a single suspect's personal phone line, as 

occurred in the Smith case, is more intrusive than the NSA's metadata collection, 

given the vastness and anonymity of the data set and the minuscule chance that any 

particular person's calling records will be reviewed by an NSA analyst. In other 

words, the individual privacy interests of the tens of millions of telephone 

customers whose calling records are collected by tlle NSA are lessened even 

further, not increased, by the breadth of the database. 

Judge Leon also cited the Supreme Court's 2012 decision in United States v. 

Jones, 132 S. Ct. 945 (2012), involving the GPS tracking of a criminal suspect, but 

that case is not germane. In .lones, the police trespassed on the suspect's property 

by installing a GPS device on his car and tracked his every move. The NSA's bulk 

collection, in contrast, entails no physical invasion of property and does not COlllprehensively track individual customers' movements and activities. 

The NSA's acquisition of telephone metadata is also authorized under the 

tenns of section 215, which pennits the acquisition of business records that are 

"relevant to an authorized investigation." Here, the telephone metadata is 

"relevant" to counterterrorism investigations because the use ofthe database is 

essential to conduct a link analysis of terrorist phone numbers, and this type of 

3 Accord QUOfl II. Arch Wireless Operaling Co., 529 F.3d 892, 904-05 (9th Cir. 2008) (same 

analysis for email addressing information) 

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analysis is a critical building block in these investigations. Acquiring a comprehensive database is needed to enable effective analysis of the telephone links and 

calling patterns of terrorist suspects, which is oilen the only way to discover new 

phone numbers being used by terrorists. To "connect the dots" effectively requires 

the broadest set of telephone metadata. 

The legal standard of relevance incorporated into section 215 is the same 

common standard that courts have long held governs the enforcement of administrative subpoenas, grand jury subpoenas, and document production orders in civil 

litigation, which, unlike section 215 business records orders, do not require the 

advance approval of a court..j 

The Supreme Court has long held that courts must enforce administrative 

subpoenas so long as the agency can show that the subpoena was issued for a 

lawfully authorized purpose and seeks information relevant to the agency's 

inquiry 5 This standard of relevance is exceedingly broad; it penn its agencies to 

obtain "access to virtually any material that might cast light on" the matters under 

inquiry,6 and to subpoena records "of even potential relevance to an ongoing 

investigation. ,,7 Grand jury subpoenas are given equally broad scope and may only 

be quashed where "there is no reasonable possibility that the category of materials 

the Government seeks will produce infofl11ation relevant to the general subject of 

the grand jury's investigation."g And in civil discovery, the concept of relevance is 

applied "broadly to encompass any matter that bears on, or that reasonably could 

lead to other matter that could bear on, any issue that is or may be in the case.,,9 

4 See 152 Congo Rec. 2426 (2006) (Statement of Sen. Kyl) (explaining the "relevant to" 

language added to section 215 in 2006) ("Relevance is a simple and well established standard of 

law. Indeed, it is the standard for obtaining every other kind of subpoena, including 

administrative subpoenas, grand jury subpoenas, and civil discovery orders."). 

5 See Ullited States V. h7Salle Nat 'I Halik, 437 U.S. 298, 313 (1978); Uniled States V. 

Powell, 379 U.S. 48, 57 (1964); Oklahoma Press Puh. CO. V. Walling, 327 U.S. 186,209 (1946). 

6 nJiOC P. Shell Oil Co., 466 U.S. 54, 68-69 (1984). 

7 United Stales v. Arthur Young & Co., 465 U.S. 805, 814 (1984) (emphasis in original). 

8 United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991). 

9 Oppenheimer Fund, Inc:. V. Sanders, 437 U.S. 340, 351 (1978). 

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The relevance standard does not require a separate showing that every 

individual record in a subpoenaed database is "relevant" to the investigation. III The 

standard is satisfied if there is good reason to believe that the database contains 

information pertinent to the investigation and if, as here, the acquisition of the 

database is needed to preserve the data and to be able to conduct focused queries to 

find particular records useful to the investigation. II Similar subpoena authority is 

used by numerous different federal regulatory and law enforcement agencies, 

including the Securities and Exchange Commission, the Federal Trade 

Commission, the Consumer Financial Protection Bureau, and others, to conduct 

broad investigations of conduct within their statutory jurisdictions. 

Of course, the NSA's mission is far more important and essential than the 

mere regulatory missions of most other federal agencies because the NSA is 

charged with nothing less than the protection of our way of life from catastrophic 

foreign attack. The importance of the interest at stake informs any analysis of the 

reasonableness of the scope of data collected. The effective analysis of terrorist 

calling connections and the discovery through that analysis of new phone numbers 

being used by terrorist suspects, including previously undetected terrorist cells 

operating in the U.S., require the NSA to assemble and maintain the most comprehensive set of telephone metadata, and the section 215 order provides that lmique 

capability. 

10 See In re Gral1d Jury Proceedings, 616 F.3d 1 186, 1202, 1205 (lOth Cir. 2010) 

(confirming (1) that the categorical approach to relevance for grand jury subpoenas 

"contemplates that the district court will assess relevancy based on the broad types of material 

sought" and will not "engag[e] in a document-by-document" or "line-by-line assessment of 

relevancy," and (2) that "[i]ncidental production of irrelevant documents . is simply a 

necessary consequence of the grand jury's broad investigative powers and the categorical 

approach to relevancy")' 

11 See, e.g., In re Subpoena Duces Tecum, 228 F.3d 341, 350-51 (4th CiT. 2000); FTC v. 

Invention Submission ('orp., 965 F.2d 1086 (D.c. CiT. 1992); In re GrandJIIlY Proceedings, 827 

F.2d 301, 305 (8th Cir. 1987); Associated Container Tramp. (Aus.) Ud I'. United States, 705 

F.2d 53, 58 (2d Cir. 1983) The same approach is sanctioned in the federal rules governing 

criminal search warrants. See Fed. R. Crim. P. 41(e)(2)(B) ("A warrant. . may authorize the 

seizure of electronic storage media or ... information" subject to "a later review of the media or 

information consistent with the warrant"); United States v. Hill, 459 F.3d 966, 975 (9th Cir. 

2006) (sanctioning "blanket seizure" of computer system based on showing of need); United 

States v. Upham, 168 F.3d 532, 535 (I st Cir. 1999) (sanctioning "seizure and subsequent offpremises search" of computer database). 

8 
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While the metadata order is extraordinary in temlS of the amount of data 

acquired, which is far greater than the anlOlUlt of data involved in most other 

federal agency investigations, the metadata order is also extraordinarily narrow and 

focused because of the strict limitations placed on accessing the data. There's no 

data mining or trolling through the database looking for suspicious pattems. By 

court order, the data can only be accessed when the government has reasonable 

suspicion that a particular phone number is associated with a foreign terrorist 

organization, and then that number is tested against the database to discover its 

connections. Ifit appears to be a u.s. number, the necessary suspicion cannot be 

based solely on First Amendment-protected activity. 

Because of this limited focus, only a tiny fraction of the total data has ever 

been reviewed by analysts. The database is kept segregated and is not accessed for 

any other purpose, and FISA requires the government to follow procedures 

overseen by the court to minimize any unnecessary dissemination of U.S. numbers. 

A.ny data records older than five years are continually deleted from the system. 

The order must be reviewed and reapproved every 90 days, and since 2006, 

this metadata order has been approved at least 37 times by at least 15 different 

federal judges. The telephone metadata progranl was also recently upheld as 

lawful in all respects in an independent decision by Judge William Pauley of the 

U.S. District Court for the Southern District of New York. The contrary analysis 

offered by three members of the Privacy and Civil Liberties Oversight Board in 

their recent report is entirely unconvincing. 

In addition to court approval, the 215 program is also subject to oversight by 

the executive branch and Congress. FISA mandates periodic audits by inspectors 

general and reporting to the Intelligence and Judiciary Committees of Congress. 

When section 215 was reauthorized in 20 11, the administration briefed the leaders 

of Congress and the members of these Committees on the details of this program. 

The administration also provided detailed written descriptions of the program to 

the chairs of the Intelligence COlllmittees, and the administration requested that 

those descriptions be made available to all Members of Congress in connection 

with the renewal of section 215. 

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133 

These briefing documents specifically included the disclosure that under this 

program, the NSA acquires the call-detailmetadata for "substantially all of the 

telephone calls handled by the [phone 1 companies, including both calls made 

between the United States and a foreign country and calls made entirely within the 

United States. ,,12 Public reports indicate that the Intelligence Committees provided 

briefings on the details of the program to all interested Members of Congress, and 

the administration has conducted further detailed briefings on this program since 

the Snowden leaks became public. 

Section 702 Collection. 

The second NSA program revealed by the Snowden leaks-the foreigntargeted surveillance of international communications-is conducted under section 

7020fFTSA. 

With court approval, section 702 authorizes a program of foreign-focused 

surveillance for periods of one year at a time. This authority may only be used if 

the surveillance does 110t (1) intentionally target any person, of any nationality, 

known to be located in the United States, (2) target a person outside the US. if the 

purpose is to reverse target any particular person believed to be in the US., 

(3) intentionally target a US. person anywhere in the world, and (4) intentionally 

acquire any communication as to which the sender and all recipients are known to 

be in the US. 

Section 702 mandates court approval of the targeting protocols and of 

minimization procedures to ensure that any information about US. persons that 

may be captured in this surveillance will not be retained or disseminated except as 

necessary for foreign intelligence purposes. 

From everything that's been disclosed about the foreign-targeted 

surveillance progranl, including the so-called PRISM Internet collection, it appears 

to be precisely what section 702 was designed to permit. 

12 Report on the National Security Agency's Bulk Collection Programs for USA PATRIOT 

Act Reauthorization at 3, enclosed with Letters for Chairmen of House and Senate Intelligence 

Committees from Ronald Weich, Assistant Attorney General, Oftlce of Legislative Atfairs, 

Department of Justice (Feb. 2, 20 I I). The identical disclosure was also made in a similar report 

enclosed with letters dated December 14, 2009. 

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134 

The 702 program is also fully consistent with the Constitution. As a 

background principle, the Fourth Amendment does not require the govemment to 

obtain a court-approved warrant supported by probable cause before conducting 

foreign intelligence surveillance. The Supreme Court has reserved judgment on 

the question, 13 but the courts of appeals have consistently held that the President 

has inherent constitutional authority to conduct warrantless searches and 

surveillance to obtain intelligence information about the activities offoreign 

powers, both inside and outside the United States and both in wartime and 

peacetime. I" 

The absence of a warrant requirement does not mean the Fourth Amendment 

has no application to foreign intelligence surveillance. Rather, searches and 

surveillance conducted in the United States by the executive branch for foreign 

intelligence purposes are subject to the general reasonableness standard ofthe 

Fourth Amendment. See Vernonia Sch. /Jist. v. Acton, 515 U.S. 646, 653 (1995) 

(holding that the touchstone for govemment compliance with the Fourth Amendment is whether the search is "reasonable" and recognizing that the warrant 

requirement is inapplicable in situations involving "special needs" that go beyond 

routine law enforcement). 

The reasonableness of foreign intelligence surveillance, like other "special 

needs" searches, is judged under a general balancing standard "by assessing, on the 

one hand, the degree to which [the search] intmdes upon an individual's privacy 

and, on the other, the degree to which it is needed for the promotion oflegitimate 

govemmental interests." United States v. Knights, 534 U.S. 112, 118-19 (2001) 

13 See United States I'. United States District COllrt (the "Keith" case), 407 U.S. 297, 308 

(1972) (explaining that the Court did not have occasion to judge "the scope of the President's 

surveillance power with respect to the activities offoreign powers, within or without this 

country"); Katz v. United States, 389 U.S. 347 (1967). 

14 See, e.g., [n re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002); 

United States v. Truong Dinh Hung, 629 F.2d 908, 914-15 (4th CiL 1980), cert. denied, 454 US 

1144 (1982); United States 1'. Blick. 548 F.2d 871. 875 (9th CiT). cert. denied. 434 US. 890 

(1977); United States I'. Butenko, 494 F.2d 593, 605 (3d CiL), cert. denied sub nom. [\'anOl' I'. 

United States, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418, 426 (5th CiLI973), 

cal. dellied, 415 US. 960 (1974). Bill see Zweiboll v. Milchell, 516 F.2d 594, 619-20 

(D.C.Cir.1975) (en bane) (plurality opinion suggesting in dicta that a warrant may be required 

even in a foreign intelligence investigation). cert. denied. 425 US 944 (1976). 

11 
135 

(quoting Wyomingv. Hough/on, 526 U.S. 295, 300 (1999». In the context of 

authorized NSA surveillance directed at protecting against foreign threats to the 

United States, the govemmental interest is of the highest order. See Haig v. Agee, 

453 U.S. 280, 307 (1981) CIt is 'obvious and unar6'llable' that no governmental 

interest is more compelling than the security of the Nation."). 

On that basis, prior to 1978, Presidents conducted surveillance of national 

security threats without court supervision. That practice led to the abuses that were 

documented by the Church and Pike Committees and eventually resulted in the 

passage ofFISA. 

FISA was enacted as an accommodation between Congress and the 

executive branch. It was designed to ensure the reasonableness of surveillance by 

requiring the approval of a federal judge for certain defined types of clandestine 

foreign intelligence surveillance conducted in the United States, instituting oversight of the process by the Intelligence Committees of Congress, providing for 

procedures to "minimize" the retention and dissemination of information about 

U.S. persons collected as part of foreign intelligence investigations, and 

regularizing procedures for the use of evidence obtained in such investigations in 

criminal proceedings. 

Under FISA, electronic surveillance of persons in the United States for 

foreign intelligence purposes requires an order approved by a judge and supported 

by individualized probable cause to believe the target is an agent of a foreign 

power or engaged in intemational terrorism. 

Ever since FISA was enacted, it's been recognized that FISA raises 

significant constitutional issues to the extent it might impinge on the President's 

ability to carry out his constitutional duty to protect the United States from foreign 

attack. 

Importantly, in its original conception, FISA was not intended to govern the 

conduct of communications intelligence anywhere overseas or the NSA's 

collection and surveillance ofintemational communications into and out of the 

United States. FISA's definition of "electronic surveillance" focuses on the interception of wire communications on facilities in the United States and on the 

interception of certain categories of domestic radio communications. See 50 

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136 

U.S.C. § 1801(f). In 1978, most international calls were carried by satellite, and 

thus the statute's definition of "electronic surveillance" was carefully designed at 

the time to exclude from the jurisdiction of the FISA court not only all surveillance 

conducted outside the United States, but also the surveillance of nearly all 

international communications. 15 

FTSA also exempted from statutory regulation the acquisition of intelligence 

information from "international or foreign communications" not involving 

"electronic surveillance" as defined in FISA,16 and this change, too, was "designed 

to make clear that the legislation does not deal with the international signals 

intelligence activities as currently engaged in by the National Security Agency and 

electronic surveillance conducted outside the United States.,,]7 Congress 

specifically understood that the NSA surveillance that these carve-outs would 

categorically exclude from FTSA included the monitoring of international 

communications into and out of the United States of U.S. citizens18 

In the years following the passage ofFISA, however, communications 

technologies evolved in ways that Congress had not anticipated. International lines 

of communications that once were transmitted largely by satellite migrated to 

undersea fiber optic cables. This evolution increased greatly with the advent of the 

Internet. In the new world of packet -switched Internet commlmications and 

international fiber optic cables, FISA's original regime of individualized court 

orders for foreign intelligence surveillance conducted on facilities in the United 

States became cumbersome, because it now required case-by-case court approvals 

for the surveillance of international communications that were previously exempt 

from FISA coverage. Nevertheless, prior to 9/11, the executive branch found the 

FISA system to be adequate and workable for most national security purposes. 

15 See S. Rep. No. 95-604, at 33-34, reprinted in 1978 U.S.CCA.N. 3904, 3934-36. 

16 See Pub. L. No. 95-511, § 201 (b), (c), 92 Stat. 1783, 1797 (1978), codified at 18 U.S.C 

§ 251 I (2)(t) (1982). 

17 S. Rep. No. 95-604, at 64, 1978 US.CCA.N. at 3965. 

18 See id. at 64 n.63 (describing the excluded NSA activities by reference to a Church 

Committee report, S. Rep. No. 94-755, at Book 11, 308 (1976), which stated "[TJhe NSA 

intercepts messages passing over international lines of communication, some of which have one 

tenninal within the United States. Traveling over these lines of communication, especially those 

with one terminal in the United States, are messages of Americans. ."). 

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137 

All of that changed with the attacks of 9/11. In the estimation of the 

President and the NSA, the imperative of conducting fast, t1exible, and broad-scale 

signals intelligence of international communications in order to detect and prevent 

further terrorist attacks on the U.S. homeland proved to be incompatible with the 

traditional FISA procedures for individualized court orders and the cumbersome 

approval process then in place. As the Justice Department later explained in a 

public white paper addressing the legal basis for the NSA's warrantless 

surveillance of international communications involving suspected terrorists that 

was authorized by special order of the President following 9/11, "[t]he President 

hard] determined that the speed and agility required to carry out the[se] NSA 

activities successfully could not have been achieved under FISA.,,19 

The public disclosures in 2005 and 2006 concerning the President's 

authorization of warrantless surveillance by the NSA precipitated extensive 

debates and hearings in Congress. Ultimately, these debates culminated in passage 

of the FISA Amendments Act of 2008 and the addition of section 702 to FISA. 

Section 702 was designed to return to a model offoreign surveillance regulation 

similar to the original conception ofFISA by greatly streamlining the court review 

and approval of a program of surveillance of international commlUlications 

targeted at foreign persons believed to be outside the United States. Under section 

702, such foreign-targeted surveillance may be authorized by the Attorney General 

and DNI without individualized court orders for periods of up to one year at a time 

upon the approval by the FISA court of the required targeting protocols and 

minimization procedures. See 50 U .s.C. § 1881 a. 

By establishing procedures for court approval (albeit more streamlined and 

"programmatic" approval than required for traditional individualized FISA 

surveillance orders) and by strengthening congressional oversight of the resulting 

program, section 702 continues to provide a system of foreign intelligence 

surveillance, including for international commlUlications and surveillance targeted 

at foreign persons outside the U.S., that is more restrictive and protective than the 

Constitution would otherwise require. 

19 U.S. Department of Justice, Legal Authorities Supporting the Activities of the National 

Security Agency Described by the President 34 (Jan. 19,2006) 

14 
138 

As publicly described, the NSA's section 702 program offoreign-targeted 

Internet surveillance easily meets the reasonableness requirements of the Fourth 

Amendment. The surveillance is conducted for foreign intelligence purposes, 

which carry great weight in the Fourth Amendment balance, and the retention and 

use of information collected in the progranl about U.S. persons are subject to 

extensive and detailed minimization procedures designed to protect the reasonable 

privacy interests of Americans, and these minimization procedures have been 

reviewed and approved by a federal court. 

II. There Is Every Reason to Believe that the NSA Programs Remain 

Necessary to Protect the National Security orthe lJnited States and Its Allies 

Both of the NSA progranls discussed above are intended to provide quick 

and efficient detection and identification of contacts between suspected agents of 

foreign terrorist organizations and unknown operatives that may be hiding out 

within the United States. For my part, I believe that the need for such detection is 

just as acute today as it was in the immediate wake of9/11. The President and 

both the Republican and Democratic leaders of the House and Senate Intelligence 

Committees finnly agree; otherwise, I'm confident that they would not support the 

continuation of these programs, in light of the public controversy the programs 

have generated following the Snowden leaks. 

More specifically with regard to the 215 order, from all that I know, I have 

every confidence that the bulk acquisition of the telephone metadata is necessary to 

preserve the data for use in the FBI's counterterrorism investigations and to 

combine the call-detail records generated by multiple telephone companies into a 

single searchable database. Furthermore, the use of the entire integrated database 

is essential to conduct focused link analysis and contact chaining of terrorist phone 

numbers and thereby discover new terrorist phone numbers that we did not know 

about before. 

It is necessary to retain the data for a sufficient period, such as fIve years, to 

be able to conduct historical analysis to find connections between newly 

discovered phone numbers and the numbers of previously identified terrorist 

agents that may have been the subjects of past investigations. 

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139 

I believe that the 215 program provides a frequent and important input for 

ongoing investigations of terrorist activities. I don't believe the proper test of the 

program's necessity is whether it has provided the one primary piece of information required to thwart a specific terrorist plot just before an attack has been 

carried out. Any such narrow focus on the interdiction of particular mature plots is 

unrealistic because it does not take account of how these investigations are 

conducted and the fact that nearly all counterterrorism efforts involve numerous 

inputs from diverse sources over an extended period of time. A counterterrorism 

investigation is like assembling ajigsaw puzzle; every input is important, and it is 

rare that anyone input can be identified as singularly critical. 

A more suitable and relevant high-level metric ofthe program's utility might 

be to ask to following: For how many of the particular threat items reported to the 

President by the DNT in the President's Daily Intelligence Briefing ("PDB") has 

the section 215 telephone metadata program been used in developing the 

underlying investigation that resulted in that PDB item? 

III. The Major Proposals for Curtailing or Modifying the NSA 

Programs and for Amending the FISA Authorities Should Be Rejected 

I otler the following thoughts on why the President's refon1lS to the section 

215 telephone metadata program and the other principal reform proposals, 

including legislative proposals, for modifying the authorities of the NSA under 

FISA should not be approved. 

The most sweeping change under consideration, as I understand it, would 

restrict the government's authority under section 215 to acquiring on an item-byitem basis only those individual business records, including telephone call-detail 

records, that directly pertain to the person who is the subject ofthe counterterrorism investigation. A variation on this proposal would limit the NSA to 

conducting one-by-one queries of the call-detail databases of the phone companies 

only while the data is retained by the companies in the ordinary course of business. 

Such requirements would kill the NSA's telephone metadata program, 

because they would, by design, deny the NSA the broad field of data needed to 

conduct in an efficient and workable manner the link analysis and contact chaining 

that is enabled by the current program. 

16 
140 

At the same time, denying the NSA the authority to acquire the metadata in 

bulk and to retain it for a period of years would preclude any historical analysis of 

connections between a terrorist phone number and other, yet undiscovered 

numbers, and the ability to examine historical connections and pattems is among 

the most valuable capabilities of the 215 metadata program. Indeed, any proposal 

to limit the lenh>ih of metadata retention to a period ofless than the current five 

years should be approached with great care, because it would by definition 

diminish the capacity of the NSA to conduct this important historical contact 

analysis. I'm encouraged that the President has not proposed to limit the NSA's 

retention of the data to less than five years. 

A less sweeping but still very signiticant restriction would prohibit the NSA 

from taking possession of the call-detail records obtained under the 215 order and 

would instead require that the data be maintained for an extended period under the 

control of the telephone companies, presumably at the expense of the federal 

govemment. This alternative was recommended by the President's Review Group, 

and the President indicated in his January 17 speech that he wishes to move the 

database to private hands and has tasked the Attorney General and DNI to study 

how that might be accomplished. At the same time, the President acknowledged 

the difficulties of doing so and the fact that this option may atlect the speed and 

t1exibility of the program and could exacerbate privacy concems. 

The current program enables the NSA to acquire all of the telephone 

metadata on an ongoing basis from several companies in order to preserve the data 

in a segregated and secure manner and combine it together in a fonn that is 

efficiently usable and searchable. Ceding control of the combined database to the 

phone companies would presumably require the involvement of a private, thirdparty contractor to house and manage the data, since no single phone company has 

the ability or inclination to maintain and aggregate all of the data of the several 

companies and host the data on servers for a sutlicient period of years in a 

searchable fonn. 

Today the database is locked down and kept secure and segregated by the 

NSA in the basement of Fort Meade. If the database were outsourced to a private 

contractor, it would in all likelihood be housed off-site, probably in some suburban 

office park, and it would certainly be kept on less secure servers. In that event, the 

17 
141 

database would be far more vulnerable to privacy breaches and cyber incursions 

from foreign govemments, terrorist groups, criminal organizations, and 

sophisticated hackers. FurthemlOre, unless Congress provided otherwise by 

stahlte, the data would be exposed to court-ordered discovery by private litigants in 

all manner of civil lawsuits. The private contractors with access to the database 

would also be much less subject to effective oversight by the executive branch, the 

FTSA court, and Congress. 

Any such arrangement involving a third-party contractor, therefore, would 

be distinctly less efficient, less secure, and less subject to effective oversight than 

the current program. That result cannot be a desirable one, both in tenllS of 

national security and in temlS of the privacy of the data and the potential for its 

abuse. 

Another proposal recommended by the Review Group and reflected in some 

bills pending in Congress would require prior FISA court approval for querying the 

telephone metadata-in other words, a prior court detennination that there is 

reasonable articulable suspicion that the phone number to be queried against the 

database is associated with one of the specified foreign terrorist organizations. The 

President has ordered the NSA to put in place some version of this proposal, 

subject to the Attomey General's working out acceptable procedures in consultation with the FISA judges. Depending on how it's implemented, such a requirement would place a significant and potentially unwieldy restraint on the speed and 

flexibility of the program, particularly if it requires one-by-one court approval of 

each query, and will likely place a substantial new burden on the operations of the 

FISA court. If applied to the "hops" from the original seed number, for example, 

this requirement of prior court approval would throttle the utility of the program 

entirely. 

The President has also ordered that the NSA not analyze calling records out 

to the third "hop" from the seed number. This change, too, poses a signiticant risk 

of diminishing the speed, t1exibility, and utility of the program, since, as I understand it, the NSA currently analyzes third-hop data only where the Agency 

identifies a specific intelligence reason for doing so. Why needlessly prevent the 

NSA from pursuing valid and potentially important intelligence leads or interpose 

a new requirement of court approval before the NSA may do so? 

18 
142 

Moreover, requiring court approval of each reasonable articulable suspicion 

determination before the NSA may access the database would impose a legalistic 

judicial overlay on a judgment that is designed to be made by and is far more 

appropriately made by seasoned intelligence analysts. Insisting on prior court 

approval will inevitably require the involvement of more and more lawyers as 

intermediaries between the intelligence officers and the judges of the court and will 

inevitably involve the translation of reasonable suspicion detemlinations into lllore 

and more paper in order to communicate the real-time intelligence judgments of 

NSA professionals into the language understood by the judges and their legal 

advisers. The altemative included in some legislative proposals of requiring 

approval by the lawyers of the National Security Division of the Justice 

Department would suffer from the same defect: It would interpose a lawyer's 

sensibility in place ofthe practical judgment of intelligence professionals. 

One further proposal often raised is to attempt to graft onto the traditionally 

ex parte procedures of the FISA court a litigation-like adversary process-for 

example, by creating the position of a "Public Advocate" for the FISA court. 

Under certain of these proposals, the Public Advocate would be charged with 

representing the ''public interest" or the "privacy interests" of the targets of the 

surveillance and would be expected to oppose the govemment's applications, at 

least in cases raising novel interpretations ofFISA or asking to extend the law 

beyond how it has previously been applied. One such proposal would require that 

the Public Advocate receive a copy of each application for a FISA order and would 

give the Public Advocate the independent right to decide when to intervene and 

even the right to appeal any FISA order approved by the court. 

This concept of introducing a Public Advocate with independent authority 

and appeal powers into the FISA process raises serious constitutional concems. 

Because the review ofFISA applications requires access to the most sensitive 

national security infomlation, including both current threat assessments and 

descriptions of the proposed intelligence operations, any appointed advocate would 

have to be a permanent, tmsted officer of the executive branch or ofthe FISA court 

with the necessary security clearances. Constitutional issues would arise in any 

statutory mandate that the President invariably permit the Public Advocate to have 

access to sLlch sensitive classified infonnation. The protection of national security 

secrets is a duty the Constitution assigns exclusively to the President; Congress 

may not direct the exercise of this duty by statute. Constitutional issues would also 

19 
143 

follow if the Public Advocate were given the power to appeal a decision of the 

FISA court over the objections of the executive branch. 

Moreover, introducing such an advocate position would not likely achieve 

the meaningful benefits that proponents hope for. The judges assigned to the FISA 

court are already assisted by permanent legal advisers who are steeped in the 

precedents of the court and whose job is to second l:,'1less the arl:,'1lments and 

analyses of the executive branch. If a particular FISA application raises significant 

questions, the legal advisers are already asked to prepare separate, in-depth 

analyses for the judges. The recently disclosed opinions of the FISA court 

convincingly show that the judges of the court and their legal advisers are not shy 

about applying a thoroughly independent review of the issues that is in no way 

beholding to the executive branch. If a Public Advocate were part of the executive 

branch, the advocate would always ultimately be answerable to the President. If 

employed by the court, the advocate would be little different from the existing 

legal advisers. Either way, the Public Advocate could never actually be a true 

independent adversary representing the interests of those under surveillance. 

The President evidently disapproves the idea of a more formal Public 

Advocate, as described above. Instead, he has announced his support for the 

fomlation of a "panel" of pre-cleared advocates who could be called upon by the 

FISA judges to submit briefs-presumably only in the form of amicus briefs-on 

significant issues facing the court. This proposal may be unobjectionable, ifit 

leaves to the FISA judges the decision to call for amicus input from a member of 

the panel where the judges believe a particular application merits such independent 

input and if leaves to the President and the executive branch the authority to grant 

security clearances to the panel members and to decide what sensitive intelligence 

infonnation is appropriate for sharing with the amicus in a particular case. 

Furthennore, it must be recognized that any requirement that the panel of 

outside amici be granted access to classified information will have the potential to 

chill the executive branch's willingness to share the sensitive details of national 

security operations and intelligence information relevant to particular FISA 

applications. As ./udge ./ohn Bates recently pointed out in his letter on behalf of all 

current and fonner judges of the FISA court, such a disincentive would threaten to 

hamper the important relationship of trust and confidence that currently exists 

20 
144 

between the National Security Division of the Justice Deparhllent and the FISA 

court. It should be a top priority of this Committee to avoid that result. 

One final observation that I believe is important to keep in mind: Many of 

the reform proposals discussed above, including those that would attempt to 

convert the FISA process into an adversary proceeding and those that would 

impose more frequent judicial approvals or bureaucratic processing of decisions 

heretofore made in real time by intelligence analysts, would run the risk of 

recreating the type of cumbersome, over-Iawyered foreign intelligence regime that 

proved so inadeq uate in the face of 9111. 

Those currently in positions of responsibility in the Intelligence Community 

and the Members of this Committee and the Intelligence Committees who are 

briefed on the latest threat reporting know far better than r how likely it is (or 

rather how inevitable) that America will suffer another catastrophic terrorist attack 

at some point in the years ahead. In the event of such an attack, I fear that the 

constrained and lawyerly process for conducting signals intelligence required 

under the most intrusive reform proposals would prove inadequate, and the 

President, any President, would be forced once again to fall back on his Article II 

authority to conduct the effective surveillance he determines necessary to protect 

the country from follow-on attacks. Indeed, I believe the American people would 

demand no less. 

That cannot be a result this Congress would prefer. But it is, unfortunately, 

a very real possibility if several of the proposals currently under consideration 

were to be adopted. 

21 
145 

Mr. GOODLATTE. Thank you, Mr. Bradbury. 

Mr. Cole, welcome. 

TESTIMONY OF DAVID COLE, 

GEORGETOWN UNIVERSITY LAW CENTER 

Mr. DAVID COLE. Thank you, Mr. Chairman, Ranking Member, 

for inviting me here to testify. 

I want to make three brief points in my opening remarks. First, 

that technological advances employed by the NSA raise substantial 

privacy and liberty concerns and demand new legal responses if we 

are not going to forfeit our privacy by technological default. Second, 

that Congress is particularly well situated to adopt rules to protect 

Americans’ privacy in the digital age. And third, that the USA 

FREEDOM Act, sponsored by Representative Sensenbrenner and 

Senator Leahy, is an excellent start toward restoring the privacy 

and the accountability that has been infringed by NSA practices. 

First, the NSA metadata program illustrates the profound threat 

to our privacy and to our associational freedoms brought on by the 

capabilities of the digital age. At the time of the framing or even 

50 years ago, if the Government wanted to know what we read, 

what we listened to, who we spoke and associated with in the privacy of our home, they would have to get a warrant based upon 

probable cause. 

Today, virtually everything we do in the home and out, including 

what we read, with whom we associate, where we go, and even 

what we are thinking about leaves a digital trace that reveals the 

most personal details of our lives. 

According to the Administration’s interpretation of Section 215, 

there is no limit on the Government getting these digital details of 

our lives, whether they be phone records or email records or Internet browsing data records or business or bank records. There is no 

limit on their ability to get them because they might at some point 

be useful to search through for a connection to terrorism. 

According to the Government’s reading of the Fourth Amendment, the Fourth Amendment provides no constitutional limit on 

the Government’s ability to get all of this data about all of us because, by sharing it with Google or AT&T or Verizon, we have forfeited our—any interest in privacy that we might have. 

But many people who have looked at this problem, including 

President Obama, including the President’s review group, including 

the Privacy and Civil Liberties Oversight Board, including Justice 

Alito, including Justice Sotomayor, and including Justice Scalia, 

have said and acknowledged that when technology advances in this 

way, it is critical that we adapt our laws to ensure that we retain 

the privacy that we had at the time of the framing. 

We’re in a brave new world. And unless we adapt our laws to reflect that fact, we will effectively forfeit the privacy that is so critical to our own human relations and to a free and open democracy. 

Second, Congress is well situated to act. As Justice Alito said in 

the Jones case, a legislative body is well situated to gauge changing 

public attitudes, to draw detailed lines, and to balance privacy and 

public safety in a comprehensive way. When it comes to adjusting 

law to deal with advances in technology, Congress has historically 

done so, and it has historically done so where the Supreme Court 
146 

has either declined to protect Americans’ privacy or failed to address sufficiently Americans’ privacy. 

So when the Supreme Court said the Fourth Amendment does 

not protect the privacy rights of people vis-a-vis pen registers, Congress responded by enacted statutory limits on the Government’s 

use of pen registers. When the Supreme Court said we have no privacy rights in our bank records, Congress responded by enacting 

the Right to Financial Privacy Act. FISA itself imposes restrictions 

on the Government’s ability to gather information that the court 

has not yet said is constitutionally protected. 

That intervention is necessary here because the Administration 

has essentially interpreted Congress’ prior law to give it carte 

blanche. I was around when we debated the changes on the PATRIOT Act, and I am absolutely certain that had the Administration come to Congress and said we’d like to amend the business 

records law, which at that time allowed the Government to get 

records on specific targets, and we’d like to amend it by giving us 

the authority to get records, phone records and other business 

records on literally every American and amass them in a single 

database and keep them for 5 years, there is no way that this Committee would have approved of that. There is no way that this Congress would have approved of that. 

And yet that’s the interpretation that the Administration has put 

on this law in secret. And therefore, I think it’s critical that Congress respond, and I think the USA FREEDOM Act, by ending 

dragnet collection and requiring a nexus between business records 

sought and terrorism investigations, is the best way to go. 

Thank you very much. 

[The prepared statement of Mr. David Cole follows:] 
147 

Testimony of Professor David Cole 

Georgetown University Law Center 

Before the Judiciary Committee of the United States House of Representatives 

"Recommendations to Reform Foreign Intelligence Programs" 

February 4, 2014 

INTRODUCTION 

Chairman Goodlatte, Ranking Member Conyers, and members of the Committee, T 

appreciate the opportunity to testify today on proposals to reform foreign intelligence gathering.! 

Since June 2013, the American public, and the world at large, have learned of a dizzying array of 

previously secret surveillance activities carried out by the National Security Agency (NSA) -

some of them authorized by Congress, many of them apparently carried out exclusively under 

Executive Order 12333. Whatever one thinks of Edward Snowden's acts in revealing these 

programs, one thing is beyond dispute: the disclosures have touched off the most significant 

debate on the appropriate limits of surveillance this country - and possibly the world at largehas ever before undertaken. 

While these programs remained secret, they were maintained by the executive branch, 

approved by the judiciary, and reauthorized (albeit in most cases, unknowingly) by Congress. 

Now that the programs have become public, all three branches of government have begun to 

reassess what they previously tolerated as long as they remained secret. President Obama 

appointed an expert Review Group to study the issue, and that Review Group, which featured the 

fonner counterterrorism adviser to the National Security Council and the former acting director 

of the CTA, recommended 46 reforms to rein in the NSA and increase transparency, 

accountability, and ultimately, trust among the American people and the world at large2 The 

President himself delivered a national speech last month on the subject, and adopted some of his 

Review Group's recommendations. 

The Privacy and Civil Liberties Oversight Board has issued its own substantial report, 

focused on the Section 215 telephone records program and the Foreign Intelligence Surveillance 

Court, and has urged termination of the bulk collection of metadata3 Notably, the Privacy Board 

examined c1assitied evidence and held c1assitied brietings on the effectiveness of the program, 

1 I am a professor at Gcorgctmvn Unhcrsity Lav,.: Center, but appear before you today in my pcrsoTk11 capacity. 

2 Liberty and Security in a Changing World. Report and Recommendations of The Presiden!"s Review Group on 

Intelligence and Communications Technologies (hereinafter --Review Group Report"). Dec. 12,2013. available at 

http://www.whitehouse.gov/sites/default/files/docs/20 13-12-12 _rg_final_ report. pdf. 

1 Privacy and Civil Liberties Oversight Board. Report on the Telephone Records Prob'Hllll Conducted under Section 

215 of the USA P ATRlOT Act and on the Operations of the Forei6'll Intelligence Surveillance Court (hereinafter 

--Privacy Board Report")_ Jan. 23. 2014. available at http://W\Hv.pciob.gov/SiteAssets/Pages/defauIVPCLOBReport -on-the-Telephone-Records-Prob'Hllll. pdf. 
148 

and concluded that its security benefits have been, in seven years, marginal at best. It found that 

the program has not led to the disruption of any act or attempted act of terrorism. The only 

instance in which the Section 215 phone records program has led to the discovery of a single 

otherwise unknown person charged with a terrorist crime involved an attempt to send money to 

Al Shabaab, a Somalian organization, in violation of prohibitions on material support to that 

group. The Privacy Board recommends termination of the bulk phone records collection, 

because it finds that it was not authorized by statute in the first place, and because the risks it 

poses to privacy outweigh the benefits to security that it has provided4 

The courts have also begun to question the program. Judge Richard Leon of the U.S. 

District Court for the District of Columbia, has ruled that the program is likely unconstitutional. 5 

Judge William Pauley of the Southern District of New York has reached an opposite conclusion'" 

Both cases are pending on appeal. Remarkably, the Foreign Intelligence Surveillance Court 

(FISC) itself issued no opinion on the lawfulness of the program when it initially authorized the 

program in May 2006. Nor did the FISC address the legality of the bulk metadata program on 

any of the subsequent occasions when, every 90 days, it reauthorized the program. In fact, the 

FISC did not write an opinion explaining its rationale until August 2013, many years after it had 

approved the program, and not coincidentally, two months after Edward Snowden disclosed the 

existence of the program 

Congress, meanwhile, is considering multiple bills proposing to rein in aspects of the 

NSA program. I support the bill introduced by Representative Jim Sensenbrenner and Senator 

Pat Leahy, the USA Freedom Act. It would make many changes, but among the most important 

is an amendment of Section 215 of the USA Patriot Act to require that the government show 

some nexus between the business records it seeks and a person or persons properly targeted for a 

foreign intelligence investigation This would permit the NSA to obtain data related to suspects, 

but would not permit it to engage in bulk collection of every American's business records. The 

bill would restore an approach to privacy that has governed in this country since its foundingnamely, the notion that the government should only invade privacy where it has some 

individualized objective basis for suspicion. It would end the dragnet collection of records about 

ordinary, law-abiding Americans who have no connection to terrorism, while retaining the ability 

of the government to gather infonnation on those it has reason to believe are so connected. 

The above activity by the three branches of government is in tum a retlection of the 

widespread public concern that has been expressed about the NSA's activities, both at home and 

abroad. For the first time since many of these programs' secret inception, the American people, 

and indeed the world at large, have had the opportunity to consider whether the NSA' s activities 

accord with our most fundamental values of privacy, liberty, and equality. The last seven 

months of revelations have demonstrated that technology has advanced far beyond the law, 

4 T\vo members of the Privacy Board dissented from this rccolll1TIcndnlioll. 

; Klawwn v. Obama, 2013 U.S. Dis!. LEXIS 176925 (D.D.C. Dec. 16,2013). 

'ACLUv. Clapper, 2013 U.S. Dis!. LEXIS 180863 (SD.N.Y. Dec. 27, 2013). 
149 

affording the government the ability to construct detailed portraits of the most intimate 

associations, beliefs, and desires of any of us. Perhaps understandably, the NSA has sought to 

exploit these capabilities as aggressively as possible. After all, its mandate is to gather 

intelligence, not to balance security and privacy. 

But the revelations also demonstrate that unless the law is adapted to catch up to 

technological change, we are at risk of forfeiting our privacy by default. This truth has been 

recognized by President Obama in his NSA speech, by his expert Review Group, and by the 

Privacy and Civil Liberties Oversight Board. It's been recognized by scholars across the 

country. And it's been recognized, in different contexts, by most members of the Supreme Court. 

Just as privacy laws had to adapt to the invention of the automobile, the telephone, the beeper, 

the GPS, and the thermal imaging device, so, too, they need to adapt to the government's 

increasing ability to use computers to collect and analyze massive amounts of digital data about 

all of us. 

Congress has a critical role to play in adjusting the law to reflect the challenges of 

technolQb'Y- As Justice Samuel Alito noted in the Supreme Court's most recent foray into this 

area, United States v. Jones, 132 S. Ct. 945, 964 (2012), "a legislative bodv is well situated to 

gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety 

in comprehensive way." Lnlike a court, Congress can c.onsider the problem from a broader 

perspective. Congress can respond more quickly than the courts And Congress may have a 

better sense of the privacy demands of the American people. Thus, Congress has in the past 

often responded to Supreme Court decisions that did not extcnd fourth Amendment protection to 

particular fOlms of investigation by imposing statutory limits that protect (he American people's 

privacy. 

My testimony will focus the ~ SA's telephone records program, and will consist of three 

pans. First, 1 'will underscore the substantial privacy concerns raised by bulk collection of digital 

data, and show why current legal limits are insufficient to preserve pl1vacy. Second,! wiH 

discuss the importance of a Congressional response. lUld third, 1 will state " .. hy I think the 

Scnscnbrc!1ner-Leaily bill is a fitting response to the current situation 

T. THE PRIVACY AND ASSOCIATTONAL ISSUES AT STAKE 

As President Obama, his expert Review Group, and the Privacy and Civil Liberties Oversight 

Board all agreed, technology in the digital age poses significant risks to the privacy that all of us 

hold dear. The Constitution's framers, recognizing that privacy is the lifeblood of democracy, 

enacted the Fourth Amendment to prohibit general warrants and unreasonable searches and 

seizures. It is no less true today that privacy is essential to a functioning democracy and a 

healthy community Now, as then, privacy is critical for the intimacy that is necessary to human 

flourishing Now, as then, privacy affords the breathing room necessary for those who dissent 
150 

from the majority to gather together, express their views, and engage in political activity. As 

George Orw'ell and Ray Bradbury have shown, a society without privacy is associated with 

totalitarianism, and is not one in which any of us would want to live. 

But if privacy is no less essential today than it was at the time of the Constitution's 

framing, it is much less secure. If, at the time of the framing, the government wanted to know 

what an individual in the privacy of his home read and wrote, and with whom he associated, it 

would have to obtain a warrant to search his home. Even with a warrant, the government 

generally had no way of knowing an individual's innermost beliefs or desires. 

Today, by contrast, without a warrant or individualized suspicion, the government can 

learn what one reads, writes, with whom one associates, and even what one desires, simply by 

collecting "business records" - the records of internet service providers, phone companies, 

banks, credit card companies, libraries, and the like. In the modern age, nearly everything we do 

leaves a digital trace. As the President's expert Review Group noted, quoting the National 

Academy of Sciences, the "essence of the information age," is that everyone leaves "personal 

digital tracks ... whenever he or she makes a purchase, takes a trip, uses a bank account, makes a 

phone call, walks past a security camera, obtains a prescription, sends or receives a package, files 

income tax forms, applies for a loan, e-mails a friend, sends a fax, rents a video, or engages in 

just about any other activity.,,7 

President Obama similarly noted the ability of computers to obtain such information, and 

the privacy concerns that capability raises. As he stated, 

Corporations of all shapes and sizes track what you buy, store and analyze our 

data, and use it for commercial purposes; that's how those targeted ads pop up on 

your computer or smartphone. But all of us understand that the standards for 

government surveillance must be higher. Given the unique power of the state, it is 

not enough for leaders to say: trust us, we won't abuse the data we collect. For 

history has too many examples when that trust has been breached 8 

Yet according to the administration, it can collect all such data as "business records" under 

Section 215 of the Patriot Act -- without establishing any particularized connection between the 

individuals whose records are sought and a terrorist investigation. And according to the 

administration, the Fourth Amendment imposes 110 limitation whatsoever on its doing so, 

because in its view all of us have forfeited our privacy by sharing this information with "third 

parties" - the businesses that make these services available. The fact that one cannot live in 

modern America without using these services, the administration contends, is immaterial. 

7 Expert Review Group Report at 110. 

R Remarks by the President on Review ofSif,'llllls Intelligence, Jall. 17,2014, available at 

http://www.whitehouse.gov/the-press-office/2014/0 1/ 17/remarks-president -review -sigl1llls-intelligenee, 

4 
151 

This is a very troubling development for those who believe, as the framers did, that 

privacy is essential to democracy. As Justice Alito recognized in United States v. Jones, which 

involved the use of much less sophisticated technology -- a GPS -- to monitor the public travel of 

an automobile for 28 days, our privacy has long rested as much on the practical difficulties of 

tracking us as on any legal protections: 

In the pre-computer age, !be greatest protections of privacy were neither 

constitutional nor statutory, but practical. Traditional surveillance for any 

extended period of time was difficult and costly and therefore rarely undertaken. 

The surveillance at issue in this case--constant monitoring of the location of a 

vehicle for four weeks--would have required a large team of agents, multiple 

vehicles, and perhaps aerial assistance. Only an investigation of unusual 

importance could have justified such an expenditure of law 

enforcement resources. Devices like the one used in the present case, however, 

make long-term monitoring relatively easy and cheap9 

Just as the GPS makes it cheap to monitor citizens' public travel, so the proliferation of digital 

information about almost every interaction we have, coupled with advances in computer 

technoIOb'Y, make it possible to collect and aggregate massive amounts of personally revealing 

data about all of us. If privacy laws are not adapted to take these developments into account, 

privacy as we have long known and cherished it will not survive. 

The N SA program's defenders invariably claim that the phone records program poses 

less of a danger to privacy because it collects only the metadata about our phone calls - who we 

call, who calls us, when we talk, and for how long -- rather than the content of the calls 

themselves. But former NSA general counsel Stewart Baker has admitted that metadata can be 

at least as revealing as content itself. He stated: 

Metadata absolutely tells you everything about somebody's life If you have 

enough metadata, you don't really need content.. [It's] sort of embarrassing how 

predictable we are as human beings. 1 

0 

Justice Alito is not the only one to recognize this risk that new technologies pose to our 

privacy. In the same JOlles case, Justice Sotomayor wrote that: 

Awareness that the Government may be watching chills associational and 

expressive freedoms. And the Government's unrestrained power to assemble data 

that reveal private aspects of identity is susceptible to abuse. The net result is that 

GPS monitoring--by making available at a relatively low cost such a substantial 

quantum of intimate information about any person whom the Government, in its 

9 Jones. 132 S. Ct. at 963-64 (Alita. J.. concurring). 

10 AbnRusbridger. "The Snowden Leaks and the Public," The Nell' York Review a/Books. Nov. 21, 2013 (quoting 

Stewart Boker). 

5 
152 

unfettered discretion, chooses to track--may "alter the relationship between citizen 

and government in a way that is inimical to democratic society."ll 

And more than a decade earlier, in Kyllo v. United States,12 Justice Scalia, writing for the 

Court majority, similarly recognized the need to adapt the law to preserve traditional 

expectations of privacy from advances in technology. In that case, the Court ruled that the use of 

a thermal imaging device to measure heat emanating from the exterior of a house constituted a 

search. Justice Scalia warned that "[tlo withdraw protection of this minimum expectation would 

be to permit police technology to erode the privacy guaranteed by the Fourth Amendment" 13 

Extending the Fourth Amendment to such practices, he explained, "assures preservation of that 

degree of privacy against government that existed when the Fourth Amendment was adopted." 14 

In sum, technology has made it possible for the government to know more about us than 

was even thinkable at the time of the framing. The erosion of practical limits on dragnet 

surveillance renders legal constraints all the more important Yet according to the 

administration's interpretation of existing law, there are few if any legal limits on its ability to 

collect bulk data on Americans. The Constitution, it has argued, poses no impediment to 

gathering such information, because under the "third-party disclosure rule" we have all forfeited 

our expectations of privacy in this information. And there are no substantial statutory limits 

because, again according to the administration, Section 215 of the USA Patriot Act affirmatively 

empowers it to gather such data about all of us if it might be useful, at some future point, to 

search through it for ties to terrorists. The issue goes far beyond telephone data. The same 

argument would apply to cell phone location data, internet browsing histories, email addressing 

data, and financial and credit information, and library records. The administration's view of 

existing law recognizes virtually no limits on the administration's ability to collect and maintain 

a vast database on everyone 

IT, THE NEED FOR CONGRESSIONAL ACTION 

Congress can and should do something about this, by amending the statute that the NSA 

relies on for its expansive exercise of surveillance power. Congress has repeatedly acted in the 

past to protect citizens' privacy, while preserving the ability of law enforcement and intelligence 

agencies to do their jobs responsibly and effectively. It can and should do so again 

As noted above, Justice Alito has expressly noted that Congress is well situated to adjust 

privacy laws to respond to advances in technology. In fact, Congress has often enacted statutes 

to protect privacy when the Supreme Court has either not yet addressed the issue, or has ruled 

that the Constitution's Fourth Amendment itself does not provide protection. Thus, when the 

11 132 S. Ct. at 956 (Sotomayor, J.. concurring) (quoting United States v. Cuevas-Perez, 640 F.3d 272.285 (CA? 

2011) (Flaum, 1., concurring)). 

" 533 U.S. 27 (200 I). 

1~ 533 U.S. at 3-1. 

"Jd. 

6 
153 

Supreme Court ruled in Smith v. Maryland, 442 U.S. 735 (1979), that "pen registers" did not 

invade Americans' expectation of privacy, and therefore could be obtained without any Fourth 

Amendment limitations, Congress enacted statutory restrictions on the use of pen registers. 

Specifically, 18 U.Sc. § 3122 requires government officials to obtain a court order before 

installing a pen register, based on a showing that "information likely to be obtained is relevant to 

an ongoing criminal investigation being conducted by that agency." 

Similarly, when the Court ruled in United States 1'. Miller, 425 US. 435 (1976), that 

citizens had no constitutionally protected expectation of privacy in their bank and credit records, 

meaning that the government could get them without court approval or any showing of necessity 

or suspicion, Congress enacted the Right to Financial Privacy Act, 12 U.Sc. § 3401 et seq, 

which provided statutory protections for citizens when the government seeks to obtain their bank 

and credit card records. 

Congress has protected the privacy of video rental records, requiring a warrant, subpoena, 

or court order for the disclosure, even though the Court's "third-party disclosure" rule would 

likely deny constitutional protection to such records. 18 U.s.c. § 2710. 

When the Supreme Court in Zurcher v. Stan/brd Daily, 436 U.S. 547 (1978), declined to 

interpret the Fourth Amendment to impose any special restriction on the government's ability to 

search innocent third parties or the press for evidence of crime, Congress enacted the Privacy 

Protection Act of 1980,42 U.s.C. § 2000aa, which afforded both innocent third parties and the 

press protections as a statutory matter that the Supreme Court had refused to provide as a 

constitutional matter. 

The Foreign Intelligence Surveillance Act, 50 U.S.c. § 1801 et seq., reb'lliates the 

government's ability to conduct wiretaps and searches for foreign intelligence gathering 

purposes, despite the fact that the Supreme Court left open whether foreign intelligence gathering 

is subject to Fourth Amendment restrictions. 15 

Section 215 of the USA Patriot Act itself imposes statutory restrictions on access to 

business records that might otherwise fall under the "third-party disclosure" rule, and therefore 

might not be subject to Fourth Amendment limitations 

And Section 702 of the FlSA Amendments Act of2008, 50 U.Sc. § 1881a, imposes 

statutory restrictions on surveillance directed at foreign nationals living abroad, even though the 

Supreme Court has ruled that at least in some circumstances, the Fourth Amendment does not 

limit the government's ability to search foreign nationals outside the United States. 16 

Thus, Congress has a long record of affording more protection to Americans' privacy 

than the Supreme Court has interpreted the Fourth Amendment to provide. In some scenarios, 

" United States v. United States District Court, ~07 U.S. 297. 308 (1972). 

" United States v. Verdugo-Urquidez, ~9~ U.S. 259 (1990). 

7 
154 

Congress acted in response to Supreme Court decisions that at least arb'llably were insufficiently 

attentive to privacy demands. In other settings, Congress acted to fill a gap where the Supreme 

Court had failed to clarify the extent of Fourth Amendment protection, if any. In any event, this 

history demonstrates that Congress plays an essential role in safeguarding the privacy of 

Americans, and that it plays a role that is distinct from that played by the Court. 

There is a particular need for congressional action here, because the executive and the 

FISC have interpreted an existing statute, Section 215, in ways that few if any members of 

Congress would have supported. That statute authorizes the government to obtain a court order 

for the production of business records only where they are "relevant to an authorized [foreign 

intelligence 1 investigation." As the Privacy and Civil Liberties Oversight Board has 

convincingly and exhaustively demonstrated, Section 215's requirement that only records 

"relevant to an authorized investigation" does not support the collection of all telephone 

metadata on every American, as the NSA has been collecting. 17 

The government has argued - and the FISC has accepted 18 -- that collecting all 

Americans' phone records and maintaining them for five years is "relevant" to a terrorism 

investigation because at some future time the government might want to search those records for 

links to terror suspects. In other words, all of our phone numbers are "relevant." not because any 

of us has any connection to terrorism, but because the NSA might someday find it useful to 

search through them all for as yet unspecified links to terrorism. 

On this theory, the Privacy Board noted, "virtually all information may be relevant to 

counterterrorism and therefore subject to collection by the government." (60) Indeed, "while 

terrorists use telephone communications to facilitate their plans they also write emails, open bank 

accounts, use debit and credit cards, send money orders, rent vehicles book hotel rooms, sign 

leases, borrow library books, and visit websites." 19 On the administration's view of Section 215, 

it could collect records on all American's email, internet, banking, credit, and library activities, 

because at some point those records might be useful to a terrorism search. There is no limiting 

principle. Yet surely Congress intended to impose a limit of relevance when it authorized not the 

collection of all business records of all Americans, but only of records "relevant to an authorized 

investigation." Yet the administration's interpretation renders meaningless the restriction of 

obtainable documents to "relevant" records. As the Privacy Board put it, this interpretation 

I' Privacy Board Report, at 57-102. 

IS NSA defenders often claim that 15 federal judges of the FISC court have mled that the Section 215 program is 

legally authorized. In a very teclmical sense, that may be tme. But it is misleading. because all but one FISC judge 

never actually 'Hote an opinion assessing the legality of the progrmll. Instead. as noted in the Introduction. the FISC 

approved of the telephone records progrdlll in May 2006 without offering any e"'Planation for its rdtionale, and until 

AU.6'l.lSt 2013. none of the many judges \vho routinely approved of the pro.6'Tam-s extension at 90-day intervals 

offered .my explanation for their rationale. The only FISC judge who has actually set forth a rationale for finding 

the pro.6'Tam legal is Judge Claire Eagan, on AU.6'l.lSt 29, 2013. two months after the progrmn was revealed to the 

public. Amended Memordndulll Opinion. In re .~pplication of the Federal Bureau qtlnvestigation jar an Order 

Requiring the Production of Tangible Things, No. BR 13-109 (FISA Ct. Ah'll. 29, 2013). 

19 Privacy Board Report at 62. 

8 
155 

"supplies a license for nearly unlimited government al acquisition of other kinds of transactional 

information.,,2o 

In addition, as the Privacy Board has demonstrated, the government's novel construction 

of "relevant" finds no support in any of the analogous situations in which the government or 

private parties are authorized to obtain "relevant" documents. The government has cited to no 

grand jury subpoena or civil discovery order in the history of American litigation that has 

authorized the collection of records on every American21 

The administration's interpretation of Section 215 also conflicts with other statutes that 

impose more stringent restrictions on collection of the very same data that the N SA has been 

gathering under Section 215. For example, another section ofFISA, 50 USc. §1842, authorizes 

the use of "pen registers" and "trap and trace" devices to collect the same phone data that the 

NSA is now gathering under Section 215. Yet § 1842 restricts the use of pen registers and trap 

and trace devices to specified phone numbers22 The administration's interpretation of Section 

215 effectively allows it to evade the requirements of the pen register provision and get the same 

information on every American without specifying anyone's numbers as a target. 

The administration's reading of Section 215 also conflicts with the Electronic 

Communications Privacy Act (ECPA), 18 U.S.c. § 2510 et seq., which expressly addresses 

phone and other electronic communication records and states that a provider "shall not 

knowingly divulge a record or other information pertaining to a subscriber to or to a customer of 

such service .. to any governmental entity" except pursuant to specifically enumerated 

circumstances.2' The enumerated circumstances do not include a court order under Section 215 

(but do include a court order under ECP A). 

Thus, the administration's interpretation of Section 215 is at odds with the plain language 

of the statute, with all precedent interpreting the term "relevant" in analogous settings, and with 

other parts of FISA and ECPA Yet in defense of its counterintuitive interpretation, the 

administration has cited to no evidence that at the time Congress amended Section 215 even a 

single member of Congress thought that the stature was giving the NSA authority to collect 

business records on every American. To the contrary, Representative Sensenbrenner, one of the 

Patriot Act's architects in the House, has stated that he never intended to authorize such dragnet 

collection when authorizing the FBI to obtain business records "relevant to an authorized 

investigation.,,24 

2°ld. 

21 ld. at 63-81 (reviewing interpretation and application of -relevance-- in civil discovery. ,grand jury subpoenas. and 

administrative subpoenas). 

"See 50 U.S.c. ~ 18~2(d)2)(A)(iii). 

21 18 U.S.c. §§ 2702(c). 2703(c). 

2' See, e.g., Letter of Sensenbrenner to Attomey General Eric Holder. Sept. 6. 2013. available at 

http://sensenbrenner.house. gov/uploadedfiles/sensenbrenner _letter_to _attomey _general_eric _holder. pdf. 

9 
156 

Congress should act now in order to make clear that it did not intend to give the 

government access to all Americans' phone records, and more fundamentally, to ensure that 

Americans do not forfeit their privacy by default simply through advances in technology and 

secret interpretations oflaw. 

Ill. THE USA FREEDOM ACT 

The USA Freedom Act would end the NSA's bulk collection of phone records, and ensure 

that the government cannot secretly collect other records of Americans' private activities in bulk. 

It would amend Section 215 to authorize collection of business records only where the 

government could show that they pertain to a foreign agent or foreign power, the activities of a 

suspected agent ofa foreign power, or an individual in contact with or known to a suspected 

agent of a foreign power. Thus, it would allow the government to seek business records in order 

to confirm or deny potential connections between suspected terrorists and foreign agents, on the 

one hand, and Americans on the other. But it would require the government to do so through 

targeted inquiries, not dragnet collections and searches that amass records on the private 

activities of every American. 

The USA Freedom Act would sensibly impose the same restriction on National Security 

Letters and pen registers and trap and trace orders, to ensure that these authorities do not become 

end runs around the limits on Section 215. As the President's Review Group noted, National 

Security Letters allow the FBI to obtain without any court review some of the same business 

records that, under Section 215, require a court order. Of even greater concern, however, is that 

the NSL statute uses the same "relevance" standard used in Section 215. If the administration 

reads that standard to permit unlimited collection of business records under Section 215, the NSL 

authority could also be used just as broadly. Accordingly, the USA Freedom Act would amend 

these statutes by adding the same nexus requirement that it would add to Section 215. 

These amendments, which are consistent with the Privacy Board's recommendation to 

terminate bulk collection, are preferable to the approach taken by President Obama in his NSA 

speech. There, he proposed that Americans' phone records would continue to be collected in 

bulk, but held by some private entity, to be identified later. Leaving the data in the hands of a 

private entity, however, does not solve the problem presented by dragnet collection of private 

information. Under the President's proposal, dragnet collection would continue. The focus of 

reform should be on ending dragnet collection altogether, and requiring law enforcement and 

intelligence agencies to use the targeted approach that the Constitution requires, and that 

maintains respect for Americans' privacy while at the same time affording government the tools 

to keep us safe. That is the approach the USA Freedom Act takes 

The USA Freedom Act also contains several measures that would increase transparency and 

accountability with respect to foreign intelligence gathering. These are critically important 

10 
157 

refonns. As the revelations of the last several months have made clear, when intelligence 

agencies and the FISC operate entirely in secret, they are prone to adopting expansive measures 

that would likely be unacceptable if subjected to public scrutiny. There is of course a legitimate 

place for secrecy with respect to intelligence gathering. The American public does not need to 

know the details of every wiretap or order authorizing the collection of specific business records 

But when the government adopts surveillance practices that affect literally every one of its 

citizens, and does so entirely in secret, secrecy has gone too far. As long as the telephone 

metadata program was secret, neither the executive, the courts, nor Congress did anything to stop 

it. Now that it has been revealed to the public, the President has proposed refonns, one court has 

declared the program likely unconstitutional, and Congress is considering numerous bills to rein 

in the NSA That course of events illustrates the problem with secrecy. The institutional checks 

and balances established by the Constitution are important safeguards of liberty, but as this 

episode has revealed, they are insufficient without the light of public scrutiny 

In order to focus on the Section 215 program, I have not addressed other reforms in the 

USA Freedom Act, including new limitations on Section 702 of the FISA Amendments Act, and 

refonns to the FISC. I support those refonns as well, but will leave to others more extended 

discussion of them 

CONCLUSION 

Three principles should b'llide Congress as it confronts the challenge of reb'lllating foreign 

intelligence surveillance. First, we should not let advances in technology deprive us of our 

privacy by default. We can enjoy the tremendous advantages and conveniences of the digital age 

and still preserve our privacy. But in order to do so, Congress must enact rules to limit the 

power of new technologies to impose dragnet surveillance on all of us through the bulk 

collection of data revealing personal information Second, Congress is especially well suited to 

enact the rules necessary to preserve privacy in the digital age, as it can consider the issues in a 

more wide-ranging way than the courts, and historically has had a better sense of the privacy that 

Americans expect. And third, the principle that has long been used to balance privacy and 

security - that the government's security interests permit intrusions on privacy when the 

government develops individualized suspicion - remains the appropriate guidepost as we go 

forward. The very fact that the government has so little to show in terms of security benetlts 

from seven years of collecting every American's phone records underscores that this sort of 

dragnet approach is not necessary to our security 

Privacy remains just as essential today as it was when the Fourth Amendment was 

adopted. But the challenges to maintaining privacy are much more substantial, because 

technology has given the government the tools to invade our privacy in ways that were 

inconceivable a generation ago. Tfwe are to preserve the privacy that remains critical to a 

healthy democracy, Congress must act. 

11 
158 

Mr. GOODLATTE. Thank you, Mr. Cole. 

Mr. Garfield, I don’t know how the introductions and the seating 

got reversed there. Our apologies to you, but you get the last word 

of the testimony. Then we are going to take a recess to go vote, and 

we will come back and ask questions of all members of the panel. 

TESTIMONY OF DEAN C. GARFIELD, 

INFORMATION TECHNOLOGY INDUSTRY COUNCIL 

Mr. GARFIELD. Thank you, Chairman Goodlatte, Ranking Member Conyers. 

On behalf of some of the most dynamic and innovative companies 

in the world, we thank you for hosting this hearing and for inviting 

us to testify. 

My testimony today will be infused with a healthy dose of humility because we recognize that the phrase, ‘‘We don’t know what we 

don’t know,’’ is particularly apt in the area of national security. 

That being said, given the multinational and multisectoral nature 

of the tech sector and our business, we know we have something 

important to contribute to this conversation. 

As you instructed, rather than repeating my written testimony, 

which has been submitted for the record, I’ll focus on the economic 

impact; second, the societal implications; and then, third, offer 

some solutions. 

With regard to the first, the economic impact is significant and 

ongoing. We live in a world where innovations that were previously 

the province of your imagination or solely the movies are now 

found in technology that positively impact all of our everyday lives. 

Those innovations are not just cool and potentially lifesaving. 

They have positive economic benefit, with the United States benefiting significantly. 

By way of example, the data solutions industry, which is fast 

growing, is expected to create over 4 million new jobs in the next 

3 years. Nearly a third of those jobs are expected to be created in 

the United States, which we all benefit from. 

Unfortunately, because of the NSA disclosures, ‘‘made in the 

USA’’ is no longer a badge of honor, but a basis for questioning the 

integrity and the independence of U.S.-made technology. In fact, a 

number of industry experts have projected that the losses from the 

NSA disclosures in the cloud computing space alone will be in the 

tens of billions of dollars. 

Second, with regard to the societal implications, the impact is 

significant there as well. Many countries are using the NSA’s disclosures as a basis for accelerating their policies around force localization and protectionism. We’ve all read about what’s happening 

in Brazil and their efforts to create a walled garden around their 

data. 

Brazil is not alone. Some of our other allies, including Europe, 

are questioning the safe harbor that enables cross-border data 

flows. As well, many European countries are advocating the creation of country-specific clouds. 

If that is able to proceed and turns into a contagion, we run the 

real risk of going down the path of a Smoot-Hawley like protectionist downward spiral that dramatically impacts U.S. businesses 

and actually impacts businesses all around the world and transfer 
159 

what is an open, global Internet instead into a closed, siloed Internet, which is not something that none of us would like to see. 

Congress is in a great position to avoid that, and so I’ll turn to 

solutions. I offer 3 sets of solutions that build on 8 principles that 

we released 2 weeks ago. 

First, we think that additional transparency is critical. The previous panel spoke to some of the steps that have recently been 

taken by the Justice Department to enable greater disclosures. We 

view those steps as a positive step forward but still think that legislation is necessary to cement those gains and to build on them. 

Second, we think greater oversight is also very important, and 

developing a framework that enables a civil liberty advocate to be 

a part of the FISC court process—I’m sorry, the FISA court process 

is also important. 

The last round of questions for the first panel revolved around 

trust, and we think that rebuilding trust is also critically important. And there are a number of steps we can take in that regard. 

One is around the standard-setting processes around encryption. 

The NSA disclosures have significantly undermined the encryption 

standard-setting process, and the President in his speech passed on 

the opportunity to affirm the integrity of those processes. We think 

that it’s critically important that that occur. 

Second, and finally, the issue that’s been much debated in the 

first panel around Section 215. We think the work that you’re 

doing today and, hopefully, will do in the future around examining 

and reexamining 215 is critically important. In addition to considering national security, we would advocate considering other factors, including economic security, civil liberties, cost, as well as the 

impact on our standing with U.S. citizens and around the world. 

Those same factors are equally apt as we consider whether that 

data should be stored by a third party. 

Again, I thank you for this opportunity and look forward to your 

questions. 

[The prepared statement of Mr. Garfield follows:] 
160 

o Information Technology Industry Council 

"Examining Recommendations to Reform FISA Authorities" 

Testimony of 

Dean C. Garfield 

President & CEO,lnformation Technology Industry Council (ITI) 

Before the 

U.S. House of Representatives 

Judiciary Committee 

february 4, 2014 
161 

"bamining Recomendations to Reform FISA Authorities" 

Testimony of m 's Dean C. Garfield 

House Judiciary Committee 

February 4, 2014 

OITI 

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165 

OITI 

Conclusion 

Mr. OWi"" ..... we nm 10 fe>1",! "M;ode ln Am.,.,.' •• ~ I!S!l!!in <>OK 'ip,,,, " of U,5. do"" ... fYicn •. n.. fi01! .\eIl 

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wmpani ..... nd <""""if,, "<>Cnd tl>o: world, 

lllan' you lor thl. opportunity to "P!'@" bo!l", ~ you today. I will bo h.P!"1 to _"'we • • nV question. you m.v h.-t. 
166 

SUPPLEMENT 

Information Technology Industry Council 

o 

SIIA 

Global Principles (or Governments 

Collecting Private Sector Data from Commercial Entities 

R,,~ IhatQOVl'fTYflent ~ am.Jnd t.I'loI world ergagll w, ""'fVt! lane9 eet"'~1e5 ; <If1d 

Rec:ogruzang \hBI C8f\BlI"I importanl COI)SoderaIlOIlS must De buoII. 11'110 gclV8!1'VTI&nt acc:ess 10 pj1vate.sector 

data fr) the- course at surveillance actlVlties; 

The principleS below 8IlIIIlIended 10 apply 10 gcr;emmenl coIlectlOl'1 of privale 5ec\ordaa fl'OOl commerCIal 

millies. 

LltWful Basi. and Ne<;es5ity fv,y govemmOl1l ool lOCIKlO of Pf,vate $OCtor data ml)l;t be aulhoOl.ed 

by I<Iw, ,,''.~I "'" be incIi""""' ..... le, 0Ild m~11>O "mtted 10 whlot.s neo!>ssaf'( to act>_ e iegoI'mele 

purpose. lllWS lhal authorize govem:!lSl'1t colledte,"l of such da(a should indude (a) appropoate 

procedural protections under carum circumslances. and (tt) sun~ prllVlsOons to 8r1SU1'e regular 

u,lvieWs to deleflT"r"16 whether speeffie laws contr1Ue to be neet!S$(lry, ()< need to be amende<:!. 

II Access. Ac:oess to pm.ale sector data coI~ed by governments from comm8l"clal enl~ias sI10UId 

be reslricled 10 only those witr»n gooemmeot lOtIo need sud1 aocess 0009isleni wIIh \he intended 

purpose of such collection or as 8\IIhorWId bV law 

III ec hnolog~ Neutrality The limitations on gOVOOl"I"Ielll data coIlactlOll. and the procedl..-al legal 

requ.-emenls ihal QOverrmenls mU51 adhere to in 1;OI"Y100101'1 With such COIlectlOl"l !oIlouk1 apply 

~alty 10 all types of data" irdudlf"lg boih olfline end erM ine dalB. and across technologies and 

plalforms 

IV Transparen<;y Gowrnments SIlOUId ImPlement appropriate transparency meawres about the 

programs and m~s utlhzed to coiled pnvate sector data Comm9rCl81 el'lliliei should be 

pem1rtted 10 disclose cana," awropnate tnfOlll1alion about me govamment requests they tecetVe for 

private !;8I;tor data, 

V Overslght Programs and med\al1lsms pursuant to which a \IO'>'emment collects prNate sector data 

ShOuld be subject to meantngf .... OIIefsoght by an Independent body established tty the goVem"Ilent 

Such tf1(Iepe!l'OOnI body shouk1 have sutr""oot power.< to lICOOSII relevant Iflfoonation 10 aS$IIsS 

wtw\tJ8I" \hefe 15 a legal ~IS lor hoW the government conti.d.s its prI'IIale seoor dirta coHacbon 

act",~,es and to make appropf)a\e polICY recommeoaallons. 

Vt Avoid Conl~et 01 laws, GoYI!<To'T\EIIl\s snouk1' (a) reoogrtIzIIll"lat global commllfCl1ll ant~leS may be 

subject 10 Ii1e laws a nt.merous jur1sdlctlons w~h respect to the coIlectoo 01 pnyille sector data by 

goVemmenlS; and (b) endeaV<l/" 10 avoid c:onfliclS among such laws 

VII. International !:flgagemeflt Governmems shouk1 rocogn«<tlh!l\ the frarneworh P~51Jaf1t to whtd"t 

national goverrvnenlS coltea prI'IIate seclor data have global Impacts. Goverrm&nts should engage 

in multilateral d.se:usslOl"lS w~h Olrter govemmentito m"",,!ze adYerse global Impacts in COIYIIId.IOI"1 

W1th the collection of S\JCM data. 
167 

Mr. GOODLATTE. Thank you, Mr. Garfield. 

The Committee will stand in recess, and we will return as soon 

as these votes are over to begin the questioning. 

[Recess.] 

Mr. GOODLATTE. The Committee will reconvene. We are missing 

one of our witnesses. We will go ahead and start with you, Mr. 

Bradbury, and I am sure we will be joined by Mr. Garfield shortly. 

There he is. You were safe. We were starting with Mr. Bradbury 

anyway. 

Do you see any legitimacy in Justice Sotomayor’s concern that 

there is a cumulative effect to the data collected? Does the evolution of technology necessitate a reevaluation of the concept of a 

legitimate expectation of privacy? 

Mr. BRADBURY. Well, first, Justice Sotomayor in the Jones case 

was not addressing anything like the telephone metadata program. 

There was a criminal investigation targeted at a specific individual 

where they were tracking him around, and they put a device on his 

car, and they were collecting data about everywhere he went and 

everything he did. It was focused on a dragnet, if you will, on that 

particular individual. And there is nothing like that here. The only 

focus in this program in this program is on terrorist groups and 

their connections. 

Number two—— 

Mr. GOODLATTE. Well, let me just interject there because I understand that concern, but I think the concern that a lot of Americans have is that while that is the purpose and intent of this, the 

collection of data, which as we know technology today allows us to 

do pretty incredible things, and not just the government, but it is 

certainly done in the private sector. It is done in presidential elections, for example, to mix data and come up with very, very informative facts from the advanced use of technology. And the long-term 

storage of that data at the same time is, I think, whether it is what 

she is concerned about or what many of us are concerned about. 

Nonetheless, I know it is a concern of many of my constituents 

that when you put those two things together, there has to be a 

much greater degree of trust in what government is going to do 

with that data over an extended period of time. 

Mr. BRADBURY. Certainly that is true, and I think it is important 

for Congress and an appropriate role for Congress to study if statutory changes are appropriate with regard to developments and the 

use of data and the creation of data and data records. 

But the same concern, which I think is a hypothetical concern 

about the potential for abuse, would apply to broad data collections 

that are all done by all manner of Federal regulatory agencies 

under subpoena authorities, administrative subpoena powers, that 

are based on the exact same language of this statute, but that do 

not involve—— 

Mr. GOODLATTE. But let me point out one difference, and it really 

goes to my next question. And that is, do you believe it is possible 

that because the FISC operates in secrecy and all those other agencies you cite, and you are correct about that, they do not operate 

in secrecy. Is it possible for the evolution of the law in that court 

to become so ossified or to go off track because it does not get challenged in the same way that regular Federal courts, or Federal reg-
168 

ulatory process for that matter, are challenged? And if so, what 

would be the damage in having a panel of experts, maybe like 

yourself, available to argue a counterpoint to make sure that the 

FISC has all points of view? 

Mr. BRADBURY. Well, I do think that there is nothing wrong or 

objectionable, as I have indicated, with a panel of experts that 

could be called upon as amicus to provide views on a difficult question, provided the constitutional issues I identify could be addressed. 

But the other agencies I mentioned do not have to go through a 

court, so there are no court decisions unless the subject of an administrative subpoena challenges it in court, which is rare because 

this standard is so generous to those agencies. So the Securities 

Exchange Commission, Federal Trade Commission, Consumer Financial Protection Bureau, they get vast amounts of data about 

transactions affecting private interests of Americans in vast quantities. 

Now, I am not saying it is the same quantity as here, true. But 

here, the interests are very different. They are the protection of the 

Nation from foreign attack. That is the paramount mission of the 

National Security Agency. The reason for the secrecy in the FISA 

process is because it involves the most sensitive national security 

secrets and threats to the country. It simply cannot be exposed. 

Mr. GOODLATTE. I understand that, but there is an element of 

trust here that will ultimately cause this to fail unless the American people believe that what the protections are available to them 

are actually being asserted and exercised in the judicial process. 

And they do not get to see that like they do in other proceedings. 

And your point is well taken about those other agencies. Maybe we 

should be looking at what they do with their data as well. 

But finally, let me ask you, do you believe that the government 

acquisition of third party data should be permitted indefinitely, or 

should there be some limit on how much of this data should be permitted? 

Mr. BRADBURY. Well, in terms of time limit, the government does 

impose a time limit if the court order includes a time limit that requires all this data to be deleted, purged, after 5 years. The reason 

they chose 5 years, it is a standard time in the NSA programs because it is an important period to look back and do historical analysis. We know there was a cell operating in a particular operation 

3 years ago. We see a new number now. It is important to know 

if it—— 

Mr. GOODLATTE. There is always an example of, you know, if you 

saved it further. I think it declines, however, exponentially, for example, the example of the Boston bombing. The data that was used 

to determine whether he had phone contacts with people that 

might be engaged in a conspiracy that we are going to launch another attack, which his certainly a concern that law enforcement 

and the general public would have, would not need to have storage 

for 5 years. 

But let me just also suggest that it is not just about the length 

of time. The gentlewoman from California asked the question of the 

first panel related to what is the limit on what kind of data can 

be gathered. It is not just telephone data. It is not just financial 
169 

services data. It could be almost anything. And, therefore, when 

you put together that wide array of data over an extended period 

of time, there becomes a great deal of mistrust about how this system could be abused. 

Mr. BRADBURY. Yes, and I think once the disclosures were made 

and this became the subject of public debate—I think it is a 

healthy debate—I think it was incumbent on the President to come 

out early and often to explain to the American people the nature 

of the program, the limitations, the lack of abuse, and to defend the 

program. I was happy to see that he did that in his speech on the 

17th. I think that came a little late in the day, and unfortunately 

it was combined with a decision to change the program in material 

respects. 

So I think it is first the role of the President to defend these programs. And second, I think the Chairs and Ranking Members of 

the intelligence committees that oversee the programs have an important role in terms of explaining and defending the programs. 

Mr. GOODLATTE. Thank you. I am going to ask one more question, and that is directed to you, Mr. Garfield. Can you list for us 

the problems that your member companies anticipate they will face 

if they are required to store all the data the NSA is currently storing? 

Mr. GARFIELD. It would probably be a long list, but we have 

talked about many of them. Some of them include having to keep 

data that goes beyond the business purpose of that data, the time 

period for keeping it that extends beyond the time period, security 

concerns, cost concerns, as well as the broader concern around 

trust, which is a critical component of how we operate in the tech 

sector. 

Mr. GOODLATTE. Thank you. The Chair recognizes the gentleman 

from Michigan, Mr. Conyers, for 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chair. In her concurrence in U.S. 

v. Jones, Justice Sotomayor wrote this: ‘‘It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.’’ Well, here is where that leads us: your phone number, the 

website address, the email address, the correspondence with the 

internet service providers, the books, groceries, and medications 

that we purchase online retailers, and so forth and so on. 

How should we, Professor David Cole, how we should we rethink 

the right to privacy in what Justice Sotomayor called the digital 

age? 

Mr. DAVID COLE. Thank you, Representative Conyers. I think 

that Justice Sotomayor is onto something. I think Justice Alito said 

much the same thing. He did not speak specifically to the third 

party disclosure rule, but he did speak specifically to the risks to 

our privacy that are posed by the fact that the government has 

technology today that allows it to learn information about all of us 

without going through the steps that were required at the time 

that the Constitution was adopted. And historically, the Fourth 

Amendment has been adapted to deal with those kinds of technological advances, whether it is the phone, or the use of the beeper, 

or the use of a GPS, or the use of a thermal imaging device. 
170 

So I think the Supreme Court can and should recognize that in 

the modern era, there is a difference between my voluntarily sharing information with, say, Mr. Bradbury and, therefore, voluntarily 

assuming the risk that he will turn around and provide that information to the government. That is a voluntary risk that assume. 

There is a difference between that and the fact that to live in the 

modern age today you necessarily have to share information with 

businesses. Every place you walk, you are sharing with the cell 

phone company where you are. Every time you make a search on 

the internet, you are sharing with Google what you are thinking 

about. Every time you send an email, you are sharing with Google 

or your internet service provider who your friends are, who you are 

addressing. 

And the notion that we somehow as Americans have voluntarily 

surrendered our privacy and all that incredibly intimate detail is 

probably telling about what we think and what we do than anyone 

who knows us knows about us. I mean, I do not think my wife 

knows as much about me as my computer knows about me, and yet 

if you adopt a third party disclosure rule without any change to 

recognize the advance in technology, you have just forfeited privacy. 

But that is for the Supreme Court. I think even if the Supreme 

Court does not change the rules, this Congress can recognize that 

Americans demand more privacy than that. And as I said in my 

opening and as I say in my written statement, Congress has frequently done that. And I think this is an appropriate time to do 

that yet again to protect the privacy that all Americans deserve. 

Mr. CONYERS. What do you think of the USA Freedom Act that 

I worked with both our U.S. Senator Leahy and with our former 

Chairman, Jim Sensenbrenner? Do you think that—— 

Mr. DAVID COLE. I think that is precisely the type of response 

I think that is needed and that is justified because what it does is 

it says we are going to end the notion that the government, simply 

by calling something business records and claiming that at some 

point in the future they may want to look through those business 

records, the government can collect everybody’s records. Instead, 

what the USA Freedom Act says is the NSA, the FBI, they can collect records if they demonstrate that those records have a nexus either to a target of an investigation—a suspected terrorist or a foreign agent—or to a person known to or associated with that target. 

That seems to me a perfectly reasonable and tailored response. 

Indeed, I think that is how the Administration sold what they were 

asking Congress to do when Section 215 was amended with the PATRIOT Act. And again, as I said in the opening, I do not think anybody in Congress thought when they said we are going to allow you 

to get relevant records that are relevant to an authorized investigation. I do not think a single Member of Congress thought what we 

meant by that is there are no limits on the business records that 

you can get. You can get records on every American, every phone 

call without any showing of any connection to terrorism. That is 

clearly unacceptable in terms of protecting the privacy of Americans. 

The USA Freedom Act protects that privacy. It ensures that security interests are balanced by giving the government the ability 
171 

to get those records where it has a basis for suspecting that a person has that nexus. 

Mr. CONYERS. Thank you so much. I have got a question for Mr. 

Dean Garfield, but I am going to give it to him and ask him to submit it in writing so it will go in the record. 

Thank you, Mr. Chairman. 

Mr. GOODLATTE. Thank the gentleman, and the Chair recognizes 

the gentleman from Alabama, Mr. Bachus, for 5 minutes. 

Mr. BACHUS. Thank you. First, Professor Cole, I am a part of a 

bipartisan group that is looking at sentencing reform, which is a 

different area. We are not dealing with that today, but I know you 

have been very active in advocating for changes in our criminal justice system, and I applaud you for that. 

Mr. DAVID COLE. Thank you. 

Mr. BACHUS. And I will ask the first question to you. It is not 

just the technology that has changed over the last 30 or 40 years. 

It is really the amount of information out there. We share so much 

information on Facebook, Tweeter, or Twitter, InstaGram. You 

know, that information is there in the public realm. I think Smith 

v. Maryland, those cases that were decided in the 70’s and 80’s on 

privacy and our expectations on privacy. How does the fact that 

there is so much more information out there, and we are sharing 

so much more information, how does that affect our expectation of 

right to privacy or how should it? 

Mr. DAVID COLE. Well, I think that is the key question, and I 

think the answer may lie in the decision of Justice Alito in the 

Jones case where he says that there is a difference between following a car from point A to point B in public. You do not have 

an expectation of privacy with respect to your going from point A 

to point B in a car in public. There is a difference between that and 

using a GPS to follow that car from point A to point B to point C 

to point D to point E to point F all the way to point Z, 24/7 for 

28 days. You are still in public, but the notion that the government 

could have followed you 24/7 for 28 days without the technology, 

it just could not have. It would have cost remarkable resources 

they would not have. And Justice Alito says, therefore, people had 

a reasonable expectation of privacy with respect to that information 

because it was just onerous for the government to collect it. 

The same thing is true with all this information. You know, we 

generate all this information, but what has changed is that now 

every time we make a decision and take an action, it generates a 

digital record. And now we have computers that have the ability 

to collect and amass all of that data and to examine it for connections and ties, which tells whoever is looking, whether it be the 

NSA, or the FBI, or the IRS, whoever is looking, tells them a whole 

lot more about an individual than they ever possibly could have 

known before the advent of this technology and before the blossoming of these digital traces. 

And, you know, it seems to me that both the Constitution, the 

Fourth Amendment doctrine, and the statutory law of this Congress needs to be adapted to recognize that fact. Otherwise, as Justice Scalia said in the Kyllo case involving thermal imaging devices, we will simply forfeit our privacy to advances in technology. 
172 

We have a choice, and the choice is whether we want to preserve 

our privacy or not. It does not go automatically. It goes if we let 

it go. And Congress has the power to stop it. 

Mr. BACHUS. Okay. Mr. Bradbury, would you like to comment? 

Mr. BRADBURY. Well, I think there is a big difference between 

what has been referred to as the third party doctrine, records being 

held by a third party, and the notion that metadata, which is 

transactional data, simply data about communications, not the content of the communications, is not a search because there is not a 

reasonable expectation of privacy. That is data created by a company to conduct its business. And the people involved in the communications as subscribers know the company is creating that 

record, that data. It is not your personal record. It is not something 

that includes the content4 of the communication. 

There may be a communication that is stored in a cloud some 

place and somebody might try to argue that is held by a third party 

and it is not subject to protections. But this Congress has given it 

protections under the Electronic Communications Privacy Act and 

the Stored Communications Act. And I think there is an argument 

that the Court would recognize it as protected because it still includes the substance and private communications. So I think there 

is a big difference between that pure transactional metadata and 

every other kind of third party stored data. 

The last thing I would comment on, Congressman, is with respect to the Jones case and what has been called the mosaic theory 

is that at a certain point when you put enough information about 

an individual together in an investigation, voila, that becomes a 

search suddenly, I think that Court has not gone there yet. There 

is a lot of scholarship about it and discussion. But if the Court goes 

there, that could really seriously interfere with criminal investigations of all kinds. 

I mean, think about organized crime investigations where the 

prosecutors who are investigating or the FBI puts up on the wall 

an organization chart with the pictures of the members of the organization and collects all kinds of public data about the goings-on 

of those particular members of the organization. Does that constitute a search that would require a warrant to put that kind of 

profile together from all manner of public available information? 

No, it cannot. If it does, then criminal investigations would come 

to a halt. 

Mr. BACHUS. Thank you. 

Mr. GOODLATTE. The Chair recognizes the gentleman from New 

York, Mr. Nadler, for 5 minutes. 

Mr. NADLER. I thank the Chairman. Let me first observe that because of the evolving technology, people may, in fact, if they think 

about it, realize that the metadata on their phones is in the possession of somebody, but still have an expectation of privacy when 

they are using the phone because you do not think about it in everyday terms. And if you did and you said, gee, I do not want this 

in the public domain because it might go into the public domain 

because the phone company is keeping it for billing records and 

maybe because of something else, you would have no privacy at all. 

So I think our law has to change. Maybe for 40 or 50 years the ex-
173 

pectation of privacy theory was valid, you know, and was sufficient, 

but no longer as privacy becomes more invaded. 

But let me ask you the following, Professor Cole. You wrote in 

your testimony, ‘‘The bill would’’—the bill, that is to say, the USA 

Freedom Act—‘‘would restore an approach to privacy that is governed in this country since its founding, namely the notion that the 

government should only invade privacy where it has some individualized objective basis for suspicion,’’ which, of course, is not the 

bulk collection of information under Section 215. 

But you are describing exactly what we always wanted to do to 

avoid the general warrant. The Fourth Amendment was written 

specifically to say no general warrants. You have to describe the 

thing to be searched. We do not want the king’s officer to be able 

to come and say show me everything based on nothing except that 

you live in Boston. 

What we have now, is this not the type of general warrant that 

Section 215, the way it has been interpreted, precisely the general 

warrant that the Fourth Amendment was enacted to prevent? 

Mr. DAVID COLE. I think it is. I think that when you have an 

order that says go out and collect literally every American’s every 

phone call record, how is that different from a general warrant? It 

is not targeted. It is not predicated on individualized suspicion. It 

is as expansive as a general warrant, and that is precisely the concern that was raised. 

Now, Mr. Bradbury says, well, but it is only getting metadata, 

not content. I think that is a very evanescent—— 

Mr. NADLER. Because you can learn a lot from metadata. 

Mr. DAVID COLE. Well, and here is what Stewart Baker, who is 

general counsel of the NSA, said about that. He said, ‘‘Metadata 

absolutely tells you everything about somebody’s life. If you have 

enough metadata, you do not really need content. It is sort of embarrassing how predictable we are as human beings.’’ 

Mr. NADLER. Okay. I thought the moment I heard about it, I 

thought it was precisely the general warrant. And we certainly had 

no intention of authorizing Section 215. And the FISA Court, if it 

were not the kind of kangaroo court it is because it only gets one 

side, and it is done in secret, probably would not have decided it 

that way. 

But let me ask you a second question. The review board established by the President recommended, among other things, that we 

harmonize the standards for national security letters for Section 

215 collection. This makes sense to me, particularly as many of the 

standards for NSL’s minimization of initial approval process are 

less rigorous. What is your opinion? Should we harmonize the 

standards by requiring that NSL meet the same and presumably 

amended standards since it will fix the problem that now exists 

with the Administration and FISA Court’s interpretation of what 

is relevant? 

In other words, should we make the NSLs match 215, and, for 

that matter, if we do, why bother having NSLs at all anymore? 

Mr. DAVID COLE. Right. Well, yes, I think they should be harmonized. The USA Freedom Act would harmonize them and would 

employ the same standard to define the nexus required to get business records generally and the nexus required to get NSLs. 
174 

Right now, NSLs in Section 215 have the same standards. It’s 

just that it is this relevance standard which the government has 

read to be meaningless. So the USA Freedom Act would keep parity between—— 

Mr. NADLER. It would harmonize them? 

Mr. DAVID COLE. Huh? 

Mr. NADLER. It would harmonize them. 

Mr. DAVID COLE. Right. 

Mr. NADLER. Good. 

Mr. DAVID COLE. It is harmonized, yes. But I think it needs to 

be harmonized and elevated to—— 

Mr. NADLER. Harmonized up, not down. 

Mr. DAVID COLE. Yes. 

Mr. NADLER. Mr. Garfield, in the few seconds I have, last week 

the government agreed to allow to Facebook, Microsoft, Google, 

Yahoo, Apple, and other tech companies to make information available to the public about the government’s request for email and 

other internet data. Are these new disclosure rules sufficient? 

Should Congress take additional steps? And assuming that the 

NSA continues to collect telephone metadata under Section 215, 

will the government reach a similar deal with telephone companies 

for disclosures about call record requests? 

Mr. GARFIELD. I will answer the first two questions, which I am 

in a good position to answer. 

Mr. NADLER. That is why I asked you. 

Mr. GARFIELD. The agreement last week I think is a positive step 

in allowing greater transparency, which is something we strongly 

believe in. 

The answer to your second question as to whether legislation 

would be helpful is yes. It goes part way, but not far enough. For 

example, it is important that the private sector have transparency 

reports and disclosures, but it is also important that the public sector do as well. And so, in that respect, among others, I think having legislation would be very helpful. 

Mr. NADLER. Thank you. My time has expired. Thank you. 

Mr. GOODLATTE. The Chair recognizes the gentlewoman from 

California, Ms. Lofgren, for 5 minutes. 

Ms. LOFGREN. Thank you, Mr. Chairman, and thanks for this 

hearing. You know, Mr. Conyers read the exact quote from Justice 

Sotomayor’s opinion that I had been looking at. And I have been 

thinking a lot about we have the role of writing the statutes, but 

behind that is, you know, what the Constitution requires. And I 

think that it is not just the Court that needs to examine that. I 

think the Congress has an obligation to do that as well. 

And as I have been thinking about this, I have been thinking 

about two longstanding doctrines, one, the third party data, there 

is no expectation of privacy, as well the plain sight doctrine. And 

just as you have said, I mean, 30 years ago, if I walked out my 

front door, I knew that my neighbors could see me. I did not expect 

that my picture would be taken every place I walked and compiled, 

and using facial recognition technology someone could say where I 

was every moment of every day. 

Yes, if I went in and checked into a hotel, I knew that that was 

not private information, but I did not expect that every email I 
175 

send, every website, that if I went on my Constitution document 

that somebody could track how often I read the Fourth Amendment. That was not part of the third party doctrine. 

So I think Congress needs to not delegate this to the Court, but 

to head on take on these issues because I think if you look at 

where the Court is going, you know, I do not know how long it is 

going to take them to get there. You know, we cannot discuss what 

we are told in closed sessions, but I will just read the news reports 

that we had a few days ago, reports that that the NSA is spying 

using leaky mobile apps; a few days before that the NSA collected 

over 200 million text messages; that in late December that cookies 

were being used to track people; that there were 5 billion records 

of mobile phone location data collected daily; that there was collection of pornographic website visits used to blackmail potential socalled terrorists; that money transfers were being tracked. And it 

goes on and on. 

So I guess, you know, one of the questions I have, Professor Cole, 

is if the Congress should step forward to interpret the Fourth 

Amendment in light of big data, how would we do that, statute by 

statute? And I am a co-sponsor of Mr. Sensenbrenner’s bill, but 

that really relates to just a portion of this question. Do you have 

thoughts on that? 

Mr. DAVID COLE. Well, I think it is a great question. I think it 

is the defining question of privacy for the next generation, which 

is how do we preserve privacy in the face of these advances in technology, which make it possible for the government to learn everything about us. 

And I think, you know, it is absolutely critical that Congress play 

a role, that Congress has historically played a role, not waited for 

the Supreme Court to act, in some instances acting before the Supreme Court does so, FISA for example. In other areas when the 

Supreme Court has said there is no expectation of privacy, Congress has come on the heels of that and said, wait a minute, the 

American people disagree with you. We want our privacy. And so, 

I think that is what you did with respect to bank records, video 

rental records, PIN registers, and the like. 

So there is a real history of Congress stepping up here and doing 

so. And I am not sure you can do it in a global way, but the USA 

Freedom Act, as I suggested earlier, is a useful start because it 

puts in place the principle of individualized suspicion, rejecting this 

general warrant notion. 

Ms. LOFGREN. I am going to follow up with you and I am going 

to ask one additional question of Mr. Garfield. On the technology 

issues, one of the very distressing reports was that the government, 

rather than alert people to zero day events, simply exploited them. 

I am worried about the balkanization of the internet. We see what 

Brazil is doing, certain authoritarian regimes insisting that servers 

be placed in their country. I am worried about governance and 

whether ICON will be able to continue to be the governing body, 

or whether efforts to dismantle that will be enhanced by these revelations. 

I am wondering if we should make obligations to the government 

to proactively take steps to preserve the global internet both 
176 

through mandates not to weaken encryption, mandates as to assisting in zero day events, and if you have thoughts on that. 

Mr. GARFIELD. Yes, I absolutely do. We worry as well about the 

potential balkanization and what the NSA disclosures mean for 

internet governance. I think it is very important for Congress to act 

in this area. I think the President missed an opportunity by not 

speaking to the encryption standards issue and the need to bolster 

the integrity of encryption standards. And so, to the extent that 

Congress has the ability to do that, we would encourage it. 

Ms. LOFGREN. My time has expired. Thank you, Mr. Chairman. 

Mr. GOODLATTE. The Chair thanks the gentlewoman, and recognizes the gentleman from Virginia, Mr. Scott, for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Garfield, can you just 

say another word about the effect of global competitiveness on this 

issue and how American companies are actually pretty much at a 

disadvantage if we do not get this straight? 

Mr. GARFIELD. No, absolutely. So trust, integrity, security are 

key components of technology and doing well in technology and developing your business in that area. The United States has played 

a significant leadership role around the world. And to the point in 

my testimony, rather than continuing to be a badge of honor, today 

because of the NSA disclosures, countries and customers around 

the world are questioning the integrity and independence of U.S. 

technology companies, which puts us at a competitive disadvantage 

overseas, but also here where the American people also have those 

same trust concerns. 

Mr. SCOTT. And do you have a choice in vendors in a lot of products, whether it is an American company or a foreign company? 

Mr. GARFIELD. I am sorry? 

Mr. SCOTT. Is there a choice in vendors in products? 

Mr. GARFIELD. Almost always, I mean, but the tech sector is 

highly competitive. We represent both domestic and international 

companies. The impact, interestingly enough, is global because to 

the extent that innovations that are being led by the United States 

do not occur, the whole world is disadvantaged because we all benefit from those innovations. And so, it creates a global problem, but 

one that is particularly acute for U.S. companies. 

Mr. SCOTT. Does your council have a position on where information should be stored if the decision is made to collect and store 

this data where it ought to be stored at NSA or some, say, department store or something like that? 

Mr. GARFIELD. Yes. Our view is that the same considerations 

that we offer in evaluating 215 are apt in considering where that 

data is stored. For example, if the goal is to rebuild trust, it is not 

clear how having that data stored in a third party addresses the 

trust concern. If it is around data integrity and security, it is not 

clear how having it stored in a third party addresses that data integrity or security question. 

And so, in the examination, we think it is important to come up 

with certain principles and have those principles guide the examination both of 215 as well as where the data is stored. 

Mr. SCOTT. So are you suggesting it could be stored at the NSA 

as long as they separate it down the hall, across the street, but 

have NSA control it rather than the private sector? 
177 

Mr. GARFIELD. I am not suggesting that at all. 

Mr. SCOTT. Well, where would it be? 

Mr. GARFIELD. The beginning comment that I made, which is 

that there is a lot that I am not privy to for a whole host of reasoning, including security clearance. And so, I do not feel I am in 

a position to give advice to the U.S. government on national security. What I feel that I have the confidence to do is to make sure 

that certain important factors, in addition to national security, are 

considered. Economic security, privacy, civil liberties, as well as our 

standing in the world, are some of the factors that we think should 

be considered. 

Mr. SCOTT. Thank you. Mr. Cole, the Administration has offered 

a lot of administrative changes. What would be the shortcomings 

if those changes are not codified? 

Mr. DAVID COLE. If those changes are not codified? 

Mr. SCOTT. Right. 

Mr. DAVID COLE. Well, I think those changes are important ones, 

in particular the notion that the NSA cannot search through the 

bulk collection without first getting approval from a court. That 

seems to me an important modification. The notion that there 

would be an independent advocate in the FISC seems to be important. And one implication of not doing that, I think as we see, we 

see repeated instances of what we have now learned about, right? 

So Mr. Bradbury said 15 judges of the FISA Court approved of 

the use of Section 215 to get all of our phone data. What he did 

not say is that when that program was first approved by the first 

judge in May 2006, he did not even write an opinion. He did not 

address the constitutional questions. He did not say why he 

thought the limitation on relevance was somehow met by giving 

the NSA access to everybody’s information. No opinion. 

Every 90 days thereafter, a different Federal judge, and this is 

how he gets to 15, signed an order that extended the program. No 

analysis of the constitutional question, no analysis of the statutory 

question. It was not until Edward Snowden disclosed it to the public that the FISC finally wrote an opinion 7 years after the program had been up and running explaining retroactively why they 

thought what they had been doing for 7 years was okay. And it is, 

as the privacy board has shown in its analysis, a very, very doubtful construction of the statute, one that, as Representative Sensenbrenner has, was not in anybody’s mind who adopted the statute. 

So I think the Administration’s proposals are important, but I 

think they do not go far enough. And particularly the key way in 

which they do not far enough is that they do not end bulk collection. They do not end dragnet collection. They just put it somewhere else. I think with the USA Freedom Act would do is end it, 

and that is a much better response. 

Mr. SCOTT. You were not here when Mr. Cole answered the question about retroactive immunity. I asked the question that you 

keep hearing that the collection of the data was helpful. It was an 

illegal collection, finding that it was helpful does not give you immunity for the collection. Do you have a comment on what relevance it is that people keep saying we need because it is helpful 

as a justification for getting the data? 
178 

Mr. DAVID COLE. Yes, absolutely. I mean, it would be helpful if 

the police could, without a warrant, search every one of our homes 

on a daily basis without any basis for suspicion. That would be 

helpful because they might find some bad guys who are hiding behind the privacy that we all expect from our home. But that does 

not make it right. 

But number two, I think when they say it is helpful, you have 

got to look behind that, as the privacy board did, met with them 

in classified sessions, looked at classified materials, looked at the 

‘‘success stories,’’ and found, and here I am quoting from them on 

page 146, ‘‘We have not identified a single instance involving a 

threat to the United States in which the telephone records program 

made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the 

program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.’’ 

Mr. SCOTT. Well, to justify the program because it was helpful, 

it just adds insult to injury. It was not even helpful. But even if 

it had been helpful, it would not retroactively make the collection 

legal, would it? 

Mr. DAVID COLE. That is right. 

Mr. BACHUS [presiding]. Mr. Scott, your time has expired. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. BACHUS. Thank you. Mr. Chaffetz. 

Mr. CHAFFETZ. Thank you. I appreciate the hearing. I know it 

has been a long one, and I appreciate your patience here. 

Mr. Garfield, one of the terms that has been thrown out there 

is this so-called balkanization of the internet or internet balkanization. I would like you to expand on that. You have talked about 

bits and parts of it. You know, there have been some concerns 

about what is going on in Brazil, the European Union. They have 

announced some policies that would disadvantage the United 

States based companies. Can you kind of expand your thoughts on 

that? 

Mr. GARFIELD. Yes. I know this is not just theoretical, it is actually real, so you point to Brazil where the government of Brazil is 

moving forward with policies that would essentially create a wall 

garden around data that is developed in Brazil. They have already 

said that the email systems being used by the government can only 

be stored or developed by Brazilian companies. So as a result, U.S. 

companies that have previously held a leadership position in the 

technology innovation in that space are being dispossessed. 

It is an economic issue, but it also a broader internet governance 

issue. If it turns out that the open internet that we have all gotten 

used to becomes a balkanized series of walled gardens, then a lot 

of the innovation, a lot of the societal benefits that we have experienced will be limited. 

Mr. CHAFFETZ. Thank you. In your written testimony you state 

the need to rebuild trust regarding the National Institute of Standards and Technologies, or NIST, and their commitment to cryptographic standards developed and vetted by experts globally. 

Could you explain the importance of this in your opinion? 

Mr. GARFIELD. Yes. The reason why technologies work across geographic boundaries is you get off the plane and your phone will 
179 

work in Europe as well as the United States, is because of standards that are driven through consensus and multi stakeholder voluntary processes. Some of the disclosures have suggested that the 

United States has exploited vulnerabilities in cryptography, which 

erodes trust. And so, in order to ensure that our technology will 

work across borders, it is critical to rebuild that trust. 

The President missed an opportunity in his speech to speak to 

this issue. We hope that he will, but Congress has the opportunity 

to correct that error. 

Mr. CHAFFETZ. Thank you. I think you have touched on two of 

the concerns that globally the communication that we enjoy. These 

things are so important. So I appreciate all of your expertise being 

here today. I appreciate this Committee talking about such an important issue. 

Mr. Chairman, I think you wanted me to yield you some time if 

that is correct? I will yield back or yield to you, whatever you 

choose. 

Mr. BACHUS. Yes, yield to me, if you will. 

Mr. CHAFFETZ. Yes. 

Mr. BACHUS. And let me say this. I am going to pursue that 

same line. I had intended to. And, Mr. Garfield, are there other 

countries that are demanding information from your member companies about their citizens or foreign citizens? 

Mr. GARFIELD. It happens in a number of countries. And so, as 

we think about internet governance and jurisdiction issues, we are 

always careful about the salutary impact. And so, the rules that we 

live by in one market set a precedent for how we operate globally, 

and that is in part why in our recommendations we strongly encourage more multilateral dialogue around these surveillance and 

security issues so we can get greater harmonization around the 

rules that are created. 

Mr. BACHUS. Right. And are other countries tapping into your 

member company systems for spying purposes? 

Mr. GARFIELD. The question presumes that that is happening 

anywhere, including here in the United States. 

Mr. BACHUS. Well, say, in other countries. 

Mr. GARFIELD. No. So our companies are always working hard to 

make sure that cryptography and security measures are robust. 

Mr. BACHUS. But what I am talking about is, you know, they 

have databases, and they maintain those in other countries. Can 

they come and use that platform to access information for spying 

purposes? 

Mr. GARFIELD. We work hard to make sure that is not, in fact, 

the case. I mean, the previous panel made the point that we live 

in a world in which cyber warfare and efforts on undermining 

cyber security are quite aggressive, including by companies as well 

as nations. We are always working because it is a first priority of 

ours to maintain the data integrity to fight against that. 

Mr. BACHUS. Well, let me say this. If you are required to store 

some of this data, say, even the U.S. government, then it could be 

subject to requests in civil proceedings, divorce proceedings, once 

you maintain it. So you may want to consider to start maintaining 

that data. 
180 

Mr. GARFIELD. Exactly, and there are two issues. One is data 

stored by private companies at the request of the U.S. government, 

and then data stored at a third party. We are unequivocally opposed to data being stored by the private sector, us, beyond the 

need for business purposes for the very reason you highlight, which 

is the data integrity issue. It creates additional vulnerabilities. We 

are always fighting against that, but we do not want to create more 

targets. 

Mr. BACHUS. Thank you. The gentlelady from Texas is recognized 

for 5 minutes. 

Ms. JACKSON LEE. Let me thank you again, and let me take note 

that this is a long hearing, and we thank you very much for your 

participation here. 

I was, Professor Cole, reading the old 215, and I guess I continue 

to be baffled, having been here when we crafted the PATRIOT Act 

in the waning hours, months, and days after 9/11. And everyone 

was in a perplexed state, and the idea was, of course, to protect our 

citizens. But I notice 215 in Section 501 particularly pointed out, 

they listed books, records, papers, documents, and other items. 

There goes the mega data. But they also said protect against international terrorism or clandestine intelligence activities. Further 

down, it goes onto again emphasize that we should specify that 

there is an effort to protect against international terrorism, clandestine intelligence. 

And I only raise that because it looks to me that we have firewalls, but what resulted is this massive acknowledgement of the 

gathering of telephone records of every single American. And I 

want to find a way to politely push back on Justice Sotomayor’s reflection, and I think it is a reflection, and I think it is one in the 

reality of today, which is maybe we can have privacy, and have you 

muse, if you will, on the new legislation that we have introduced 

where we enunciate a whole list of reasons. And I do not know if 

you have been able to look at that number 1 section that we have 

here that goes on to as relevant material, obtain foreign intelligence not concerning a United States person, protect against 

international terrorism. It sort of lays it out. 

And I ask you, can we comfortably find a way to answer Justice 

Sotomayor and say, yes, we can? I might use that. And is there 

something else we should add in the legislation that I have cosponsored enthusiastically, and we will be looking forward to it 

moving forward. Can we add something else because as I look at 

215, Section 501, it looks as if we had all that we need to have to 

say, you know what? I do not think they wanted you to get the 

mega data. Are we where we need to be in this new legislation? 

Mr. DAVID COLE. Thank you for that question. You know, I agree 

that Section 215, if you read it with its ordinary meaning, sought 

to put constraints on the types of records and the amounts of 

records that the government could obtain because it did not say 

you are hereby authorized to obtain all business records on all 

Americans. It said you are authorized to obtain business records 

that are relevant to an authorized investigation. 

And as the privacy board’s report shows in exhaustive detail, 

very powerful analysis, no court in any other setting has ever read 

a relevance limitation as expansively as saying you can pick up 
181 

every American’s every record. No court, not in a grand jury context, not in a civil discovery context. So Congress did seek to put 

in limited language. 

Ms. JACKSON LEE. We did. 

Mr. DAVID COLE. But the Administration essentially took it out. 

So I think what Congress needs to do is to push precisely as Justice Sotomayor suggests, and I think that the key is to identify 

when it is obviously justified to sweep up the kinds of records that 

disclose so much about our intimate and personal lives. And I think 

the USA Freedom Act does a good job because it says you can do 

so when those records pertain to a foreign agent or a suspected terrorist, when they pertain to an individual in contact with or known 

to a suspected agent of a foreign power or a terrorist who is a subject of an investigation. 

So that says you can get records on the target. You can get 

records on people connected to the target. But, no, you cannot get 

records on every single American because Americans want security, 

but they also want privacy, and they want to use their phones. And 

we should not have to give up any one of those three. I think the 

USA Freedom Act ensures that we have all three. 

Ms. JACKSON LEE. And diligence is part of that. Mr. Gardner, let 

me ask you this. I know you may have been asked and answered 

over and over again. What will be the burden of the private sector 

hold onto this vast amount of data if it was to be crafted in that 

way? What would be the cost? What would be the problems? 

Mr. GARFIELD. It is hard to put a precise number on it. I think 

it suffices to say the burden would significant, not only in cost, but 

the impression that it creates. One of the challenges we face as a 

result of the NSA disclosures is there is a question around the integrity as well as the independence of U.S.-based companies. If we 

are to store that data, that would call into question whether we 

are, in fact, independent. And so, there are financial costs as well 

as broader costs as well. 

Mr. BACHUS. Thank you. 

Ms. JACKSON LEE. Mr. Chairman, if you would just indulge me 

for 30 seconds, a group question. 

Mr. BACHUS. A brute question? But a very short response. 

Mr. GARFIELD. Okay. 

Ms. JACKSON LEE. Thank you very much. I will not follow up. I 

just want to get Mr. Bradbury and Mr. Cole in again, and I will 

group my question together. Mr. Gardner makes a valid point on 

the perception issue. Why is it not better that we have a monitored 

holding of the data of whatever it may be, and the fact that we 

have now laid out a framework by the Federal Government instead 

of the private sector. 

And then just an aside with respect to how we do our intelligence. Do you think it is time that we haul in all of the outside 

contracting and do a better job of vetting and doing this in house 

dealing with our intelligence access? If I can get a quick answer. 

I think I put two questions in at once. Mr. Bradbury? 

Mr. BRADBURY. Thank you, Congresswoman. I do think there are 

risks with outside contractors, and I think putting the data in private hands would raise those risks. I think it would increase privacy concerns and make the program less effective. 
182 

So I think it is monitored now while it is being held by the NSA, 

closely overseen. I do not think it is an excess or abuse of the relevant standard. I think if this Committee changes the relevance 

standard, it should not single out the NSA and the intelligence 

community. It should consider applying the same narrowing standard to all Federal regulatory agencies, which collect vast amounts 

of records and data for their own investigatory purposes. They do 

not just limit themselves to those narrow individual records that 

are directly pertaining to their investigation. They get databases so 

that they can search it for relevant queries. 

And so, if the same standards applied across the board, I think 

it would really inhibit the functioning of government. I do not think 

the NSA should be singled out when its mission is the most important. 

Ms. JACKSON LEE. Thank you. Mr. Cole, can you—— 

Mr. DAVID COLE. I think if you adopt the USA Freedom Act, 

which I think you should, then the problem of where to store the 

bulk collection is solved because there is no bulk collection, right? 

If you say the NSA can only collect data where it is actually connected to a terror suspect or someone who is connected to a terror 

suspect, there is no bulk collection, and there is not the problem 

of storage. The problem of storage arises only if you continue to 

permit bulk collection. I do not think that should continue to be 

permitted. 

Ms. JACKSON LEE. I thank you, Mr. Chairman. I think we have 

got strong support for the H.R. 3361, and I look forward to moving 

forward on such legislation. With that, I yield back. 

Mr. BACHUS. This concludes today’s hearing. The Chairman 

thanks all of our witnesses for attending. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

This hearing is adjourned. Thank you. 

[Whereupon, at 3:09 p.m., the Committee was adjourned.] 
(183) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
184 

Material submitted by the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the Judiciary 
185 

to implement each ofthe recommendations, but those details will be worked out in the 

future. 

I do not sign on to the Board's discussion concerning Recommendation 12, because I 

do not believe that an intelligence program or legal justification for it must necessarily be 

known to the public to be legitimate or lawful. 

Finally, I join the Board's recommendations for immediately modifYing the Section 

215 program (Recommendation 2) because I believe these changes will ameliorate privacy 

concerns while preserving the operational value of the program. 

Where I disagree with the Board's Report 

I cannot sign on to the substance of much of the Board's analysis. I am concerned 

that the Report gives insufficient weight to the need for a proactive approach to combating 

terrorism, and I hope that the Report will not contribute to what has aptly been described 

as cycles of "timidity and aggression" in the government's approach to national security689 

After September 11, 2001, the public demanded to know why the government had not 

stopped those attacks. Fingers were pointed in every direction, and civil liberties and 

privacy considerations took a backseat in the public debate immediately following the 

attacks. Of course, the legal structure under which the agencies operated prior to 9/11 had 

been put into place in the 1970s as a reaction to the Church Committee's revelations of 

prior excesses and abuses by the Intelligence Community. Since the recent leaks of 

classified programs, the pendulum seems to be swinging sharply back in that direction. But 

I have no doubt that if there is another large-scale terrorist attack against the United States, 

the public will engage in recriminations against the Intelligence Community for failure to 

prevent it. These swings ofthe pendulum, though they may be an inevitable result of 

human nature, are an unfortunate way to craft national security policy, and they do a 

disservice to the men and women dedicated to keeping us safe from terrorism. 

The primary value that this bipartisan, independent Board can provide is a 

reasoned, balanced approach, taking into account (as our statute requires) both civil 

liberties and national security interests. We should not overreact to the crisis or 

unauthorized disclosure du jour, but take a longer view. 

With these background considerations in mind, I turn to my reasons for dissenting 

from the Board's recommendation to shut down the Section 215 program. 

The Board concludes that the Section 215 program is not legally authorized. I cannot 

join the Board's analysis or conclusion on this point. 

689 See, e.g., JA[K GOLDSMITH, THE TERROR PRESIDENCY, LAW AND JUDGMENT INSTDE THE BUSH ADMTNISTRATTON 

163-64 (2007). 

209 
186 

The statutory question-whether the language of Section 215 authorizes the 

telephony bulk metadata program-is a difficult one. But the government's interpretation 

of the statute is at least a reasonable reading, made in good faith by numerous officials in 

two Administrations of different parties who take seriously their responsibility to protect 

the American people from terrorism consistent with the rule of law. Moreover, it has been 

upheld by many Article III judges, including over a dozen FISC judges and Judge Pauley in a 

thorough opinion in a regular, public proceeding in U.S. District Court."')o 

In light of this history, I do not believe this is a legal question on which the Board 

can meaningfully contribute. If we were addressing this as a matter of first impression, 

advising the government on whether to launch the program in the first place, we would 

need to grapple with this question of statutory construction. But we do not approach this 

question as a matter of first impression. It has been extensively briefed and considered by 

multiple courts over the course of several years. Some of those cases are ongoing. This legal 

question will be resolved by the courts, not by this Board, which does not have the benefit 

of traditional adversariallegal briefing and is not particularly well-suited to conducting de 

novo review oflong-standing statutory interpretations. We are much better equipped to 

assess whether this program is sound as a policy matter and whether changes could be 

made to better protect Americans' privacy and civil liberties while also protecting national 

security. 

Because the Board also concludes that the program should be shut down as a policy 

matter, it seems to me unnecessary and gratuitous for the Board to effectively declare that 

government officials and others have been operating this program unlawfully for years. I 

am concerned about the detrimental effect this superfluous second-guessing can have on 

our national security agencies and their staff. It not only undermines national security by 

contributing to the unfortunate "cycles of timidity and aggression" that I mentioned earlier, 

but is also unfair, demoralizing, and potentially legally harmful to the individuals who carry 

out these programs. 

Turning to the constitutionality ofthe Section 215 program, I agree with the Board's 

ultimate conclusion that the program is constitutional under existing Supreme Court 

caselaw.6Y1 The Board appropriately states that government officials are entitled to rely on 

current law when taking action. But in speculating at great length about what might be the 

future trajectory of Fourth Amendment caselaw, it implicitly criticizes the government for 

not predicting those possible changes when deciding whether to operate the program. 

690 See Memorandum & Order, ACLU v. Clapper, No. 13-3994 (S.D. N.Y. Dec. 27, 2013). 

One federal judge recently reached the opposite conclusion. holding thatthe Section 215 program is 

likely unconstitutional. See Memorandum Opinion, Klayman v. Obama, No. 13-0851 (D.D.C. Dec. 16, 2013). 

This demonstrates that these are difficult legal questions that ultimately will be resolved by the courts. 

210 
187 

Perhaps the Supreme Court will amend its views on the third-party doctrine or other 

aspects of Fourth Amendment jurisprudence in future cases. But that is beside the point in 

a Report addressing whether the government's actions were legal at the time they were 

taken and now. Surely government officials should be able to rely on valid Supreme Court 

precedent without being second-guessed years later by a Board musing on what legal 

developments might happen in the future. 

Of course, the government must seriously consider whether it should take actions 

that intrude on privacy even if it can take them as a legal matter. Whether the Section 215 

program should continue as a matter of good policy is a question squarely within the 

Board's core mandate and one that courts have not addressed and cannot resolve. 

However, I do not agree with the Board's conclusion that the program should be shut 

down. 

Whether the program should continue boils down to whether its potential intrusion 

on privacy interests is outweighed by its importance to protecting national security. 

Starting with the privacy question, on the one hand, any collection program on this 

scale gives me pause. As the Board discusses, metadata can be revealing, especially in the 

aggregate (though I do not agree with the Board's statement that metadata may be even 

"more" revealing than contents). Whenever the government possesses large amounts of 

information, it could theoretically be used for dangerous purposes in the wrong hands 

without adequate oversight. Even if there is no actual privacy violation when information is 

collected but never viewed, accessed, analyzed, or disseminated in any way, as is true of the 

overwhelming majority of data collected under the Section 215 program, collection and 

retention of this much data about American citizens' communications creates at least a risk 

of a serious privacy intrusion. 

This is why I join the Board's recommendations for immediate modifications to the 

program (Recommendation 2), including eliminating the third "hop" and reducing the 

length of time the data is held. Based in part on the Board's lengthy discussions with 

government officials, I believe these changes would increase privacy protections without 

sacrificing the operational value of the program. 

On the other hand, the government does not collect the content of any 

communication under this program. It does not collect any personally identifying 

information associated with the calls. And it does not collect cell site information that could 

closely pinpoint the location from which a cell phone call was made. The program is 

literally a system of numbers with no names attached to any of them. As such, it does not 

sweep in the most sensitive and revealing information about telephone communications. 

This seems to have gotten lost in the public debate. 

211 
188 

In addition, the program operates within strict safeguards and limitations. The 

Board's Report describes these procedures, but it bears repeating just how hard it is for the 

government to make any use of the data collected under this program. For example, before 

even looking at what the database holds on a particular phone number, an NSA analyst 

must first be able to produce some evidence-enough to establish "reasonable, articulable 

suspicion" or "RAS" -that that particular phone number is connected to a specific terrorist 

group listed in the FISC's order. Only a handful of trained analysts are authorized do this. 

Before typing the phone number into a search field, the analyst must document the "RASH 

determination in writing. And if the results of the query reveal a pattern of calls that seems 

worth investigating further, the analyst must jump through a series of additional hoops 

before gathering more information about the communications or distributing that 

information to other agencies. As a result, only an infinitesimal percentage ofthe records 

collected are ever viewed by any human being, much less used for any further purpose. f>'J2 

With the safeguards already in place and the additional limitations this Board 

recommends, I believe the actual intrusion on privacy interests will be small. 

On the other side of the equation is the national security value of the program. The 

Board concludes thatthe program has little, if any, benefit. I cannot join this conclusion. 

There is no easy way to calculate the value of this program. But the test for whether 

the program's potential benefits justify its continuation cannot be simply whether it has 

already been the key factor in thwarting a previously unknown terrorist attack. Assessing 

the benefit of a preventive program such as this one requires a longer-term view. 

The overwhelming majority of the data collected under this program remains 

untouched, unviewed, and unanalyzed until its destruction. But its immediate availability if 

it is needed is the program's primary benefit. Its usefulness may not be fully realized until 

we face another large-scale terrorist plot against the United States or our citizens abroad. 

But if that happens, analysts' ability to very quickly scan historical records from multiple 

service providers to establish connections (or avoid wasting precious time on futile leads) 

could be critical in thwarting the plot. 

Evidence suggests that if the data from the Section 215 program had been available 

prior to the attacks of September 11, 2001, it could have been instrumental in preventing 

692 As the Board discusses, there have been lapses in compliance with the program's limitations. Most of 

these violations have heen minor and technical. A few have heen significant, though apparently 

unintentional. Compliance problems are always a matter of concern and demonstrate the need for robust 

oversight. But it is important to remember that the lapses the Board mentions came to light only because the 

governmentsellreporteJ violations to the FISC. Those prohlems were then corrected, under the supervision 

of the FISC. And these corrective measures and self-reporting occurred before these programs were publicly 

disclosed. That is, they were identified and fixed not hecause of the scrutiny hrought ahout hy an unlawful 

leak of classified information, but because existing oversight mechanisms worked. 

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those attacks.693 The clear implication is that this data could help the government thwart a 

future attack. Considering this, I cannot recommend shutting down the program without an 

adequate alternative in place, especially in light of what I view to be the relatively small 

actual intrusion on privacy interests. 

That said, if an adequate alternative that imposes less risk of privacy intrusions can 

be identified, the government should adopt it. The President appears to believe that the 

government can craft an alternative that retains the important intelligence capabilities of 

the program but reduces privacy concerns by storing the data outside the government. 

Although I expect this Board to have a role in crafting any such alternative and Ilook 

forward to those discussions, I doubt I could support a solution that transfers 

responsibility for the data to telephone service providers. This approach would make sense 

only if it both served as an effective alternative and assuaged privacy concerns, but I am 

skeptical it would do either. Because service providers are not req uired to retain all 

telephony meta data for any particular length of time, asking the service providers to hold 

the data could not be an effective alternative without legislatively mandating data 

retention. But data retention could increase privacy concerns by making the data available 

for a wide range of purposes other than national security, and would raise a host of 

questions aboutthe legal status and handling ofthe data and the role and liabilities of the 

providers holding it. In my view, it would be wiser to leave the program as it is with the 

NSA than to transfer it to a third party. 

Whatever happens to the Section 215 program in the short term, the government 

should frequently assess whether it continues to provide the potential benefits it is 

currently believed to have, including whether the incremental benefit provided by the 

program is eroded by the development of additional investigative tools. This process ofreevaluation should not consist merely of ad hoc conversations among individuals involved 

in the programs, but should be formalized, conducted at regular intervals with involvement 

by this Board, approved by officials at the highest levels ofthe Executive Branch, and 

briefed to the Intelligence and Judiciary Committees. I look forward to working with the 

intelligence agencies in conducting this analysis. 

693 See, e.g., Oven-,ight of the Federal Bure(Ju oflnve.'.;tigation: Heuring hefore the H. Comm. on the Judiciary, 

113th Congo 25-26 (2013) (statement of Robert S. Mueller HI, Director, Federal Bureau of Investigation) 

(testityingthat if the data from the Section 215 program had been available to investigators before 9/11, it 

would have provided an "opportunity" to prevent those attacks); Decl. of Teresa H. Shea, Signals Intelligence 

Director, Nat'! Sec. Agency, 11 35, Dk!. 63, in Am. Civil Liberties Union V. Clapper, supra note 2; Michael Morell, 

Correcting the Record on the NSA Review, WASH. POST, Dec. 27, 2013 (had data from the Section 215 program 

been available at the time, "it would likely have prevented 9/11"). 

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ANNEXB 

Separate Statement by Board Member Elisebeth Collins Cook 

I appreciate the thorough work of my colleagues, as well as the staff, and agree with 

almost all of the recommendations of the Report. I think it bodes well for the future 

effectiveness ofthe Board that we are virtually unanimous as to the policy-based 

recommendations reflected in the Report, and I urge that serious consideration be given to 

each of recommendations two through eleven. I agree that to date the Executive Branch has 

failed to demonstrate that the program, as currently designed, justifies its potential risks to 

privacy, and for that reason I join the recommendations to immediately modify its 

operation. I also agree with the Board that modifications to the operations ofthe Foreign 

Intelligence Surveillance Court ("FISC) and an increased emphasis on transparency are 

warranted-to the extent such changes are implemented in a way that would not harm our 

national security efforts. 

I must part ways with the Report, however, as to several points. First, although I 

believe the Section 215 program should be modified, I do not believe it lacks statutory 

authorization or must be shut down. Second, I do not agree with the Board's constitutional 

analysis of the program, as it is concerned primarily with potential evolution in the law, 

and the potential risks from programs that do not exist. Third, I write separately to 

emphasize that our transparency and FISC recommendations must be implemented in a 

way that is fully cognizant of their potential impact on national security. Finally, I disagree 

with the Board's analysis ofthe efficacy ofthe program. 

Fundamentally, I believe that the Board has erred in its approach to this program, 

which has been (a) authorized by no fewer than fifteen Article III judges, (b) subject to 

extensive Executive branch oversight, and (c) appropriately briefed to Congress. The Board 

has been unanimous that as a policy matter the Program can and should be modified 

prospectively, including by limiting the analysis the National Security Agency ("NSA") could 

do with the records and the amount oftime NSA could keep the records. The Board has 

nonetheless engaged in a lengthy and time-consuming retrospective legal analysis ofthe 

Program prior to issuing those recommendations. I am concerned that this type of 

backward-looking analysis, undertaken years after the fact, will impact the willingness and 

ability of our Intelligence Community to take the proactive, preventative measures that 

today's threats require. And there is no doubt that should the Intelligence Community fail 

to take those proactive, preventative measures, it will be blamed in the event of an 

attack.694 

694 By the same token, having undertaken this legal analysis, I do nut understand the Board's apparent 

recommendation that the program it considers unauthorized continue for some interim period of time. 

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First, based on my own review of the statutory authorization, I conclude that the 

Section 215 program fits within a permissible reading of the Foreign Intelligence 

Surveillance Act business records provision. 69s I am not persuaded that the reading ofthe 

statute advanced by the government and accepted by the Foreign Intelligence Surveillance 

Courtfi % and Judge Pauley of the United States District Court for the Southern District of 

New York",)7 is the only reading of Section 215, but I am persuaded that it is a reasonable 

and permissible one. Perhaps as important, I think the program itself represented a good 

faith effortto subject a potentially controversial program to both judicial and legislative 

oversight and should be commended. Moreover, the program has been conducted 

pursuant to extensive safeguards and oversight. When mistakes were discovered (and 

mistakes will occur at any organization the size ofthe National Security Agency), they were 

self-reported to the court and briefed to appropriate congressional committees; corrective 

measures were implemented, and the program reauthorized by the FISC.6'JH 

Second, the Board has engaged in an extensive discussion of emerging concepts of 

Fourth Amendment jurisprudence, none of which I join. Our conclusion that the program 

does not violate the Fourth Amendment is unanimous, as it should be: Smith v. Maryland is 

the law of the land.699 The government is entitled to rely on that decision, and the judges of 

the FISC (and our federal district and circuit courts) are required to do so, unless and until 

it is reversed. Analysis of whether, when, or how the Supreme Court may revisit that 

decision and its application is inherently speculative and unnecessary to the Board's 

report. 

Nor do I join the Board's First Amendment analysis (which also informs the 

balancing/policy section). The First Amendment implications the Board finds compelling 

arise not from the Section 215 program but from perceived risks from a potential program 

that does not exist. Although the Board focuses on the "complete" pictures the NSA could 

paint of each and every American in concluding that it has a significant chilling effect, that 

is not an accurate description of the Section 215 program. The information the NSA 

receives does not include the identity o/the subscribers. As the Board's Report 

acknowledges, a number is paired with its subscriber information (in other words, 

695 See Pub. 1. No. 107-56. § 215. 115 Stat. 272. 287 [2001) [codified as amended at 50 U.s.c. § 1861). 

6% See. e.g .• Order. In re Application of the Federal Bureau of Investigation for an Order Requiring the 

Production of Tangible Things. No. BR 06-05 [FISA Ct. May 24. 2006); Amended Memorandum Opinion. In re 

Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things. No. 

BR 13-109 [FISA Ct. Aug. 29, 2013). 

697 See Memorandum & Order, ACLU v. Clupper, No. 13-3994 [S.D. N.Y. Dec. 27, 2013). 

698 See, e.g., Primary Order, In re Application of the Federal Bure(Ju oflnve.'.;tig(Jtionjor(Jn Order Requiring 

the Production of Tangible Things, No. BR 09-13 [FISA Ct. Sept. 3, 2009). 

699 Smith v. Marylund. 442 U.S. 735 [1979). 

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information that would allow the NSA or other agency to identify the person associated 

with the number) only after a determination is made that there is a reasonable, articulable 

suspicion that a number queried through the database is associated with one of the 

terrorist organizations identified in the FISC's orders. For a telephone number reasonably 

believed to be used by a U.S. person, the reasonable articulable suspicion standard cannot 

be met solely on the basis of activities protected by the First Amendment. Any investigative 

steps related to that number can be taken only after a determination that the number 

associated with its subscriber information has potential counterterrorism value. There is 

no disagreement that this process is applied to only an extraordinarily small percentage of 

the numbers in the database, yet the Board Report's balancing/policy and First 

Amendment analyses proceed as if each and every number of every American is 

systematically paired with its subscriber information and analyzed in great detail. 

In addition, the Board nowhere meaningfully grapples with two key questions. One, 

what is the marginal constitutional and policy impact of the Section 215 program, 

particularly in view of the Board's assertion that essentially everything the Section 215 

program is designed to accomplish can be accomplished through other existing national 

security and law enforcement tools? Two, is there a difference as a policy and 

constitutional matter between an order or program that is designed by its very terms to 

force disclosure of each and every individual's protected activities (such as the disclosure 

requirement addressed in NAACP v. Alabama7""), and a program such as the one under 

consideration today, in which information is collected about innumerable individuals, but 

human eyes are laid on less than .0001% of individuals' information? To the Board, there is 

no apparent constitutional or policy difference between mere collection of information and 

actually accessing and using that information. I do not agree. 

Third, I agree with the Report's recommendations as to transparency (except 

recommendation twelve) and the operations of the FISC, both sets of which are designed to 

foster increased confidence in the government's national security efforts. I also understand 

that each of our recommendations is to be implemented with full consideration of the 

potential impact on our national security, and without hindering the operations of the FISC. 

As to transparency, we have always understood that not everything can be publicly 

discussed, see, e.g., U.S. Const. Art. I § 5, cl. 3. ("Each House shall keep a Journal of its 

Proceedings, and from time to time publish the same, excepting such Parts as may in their 

Judgment require Secrecy"), as we would like to avoid providing our adversaries with a 

roadmap to evade detection. The rational alternative, which occurred here, is to brief the 

relevant committees and members of Congress, seek judicial authorization, and subject a 

program to extensive executive branch oversight. In a representative democracy such as 

700 NAACP v.Alabama, 357 U.S. 449 (1958). 

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ours, it is simply not the case that a particular use or related understanding of a statutory 

authorization is illegitimate unless it has been explicitly debated in an open forum. 

Finally, I have a different view from the Board as to the efficacy and utility of the 

Section 215 program. Although the Report purports to consider whether the program 

might be valuable for reasons other than preventing a specific terrorist attack, the tone and 

focus of the Report make clear that the Board does believe that to be the most important 

(and possibly the only) metric. I consider this conclusion to be unduly narrow. Among 

other things, in today's world of multiple threats, a tool that allows investigators to triage 

and focus on those who are more likely to be doing harm to or in the United States is both 

good policy and potentially privacy-protective. Similarly, a tool that allows investigators to 

more fully understand our adversaries in a relatively nimble way, allows investigators to 

verify and reinforce intelligence gathered from other programs or tools, and provides 

"peace of mind," has value. 

I would, however, recommend that the NSA and other members of the Intelligence 

Community develop metrics for assessing the efficacy and value of intelligence programs, 

particularly in relation to other tools and programs. The natural tendency is to focus on the 

operation of a given program, without periodic reevaluations of its value or whether it 

could be implemented in more privacy-protective ways. Moreover, the natural tendency of 

the government, the media, and the public is to ask whether a particular program has 

allowed officials to thwart terrorist attacks or save identifiable lives. Periodic assessments 

would not only encourage the Intelligence Community to continue to explore more privacyprotective alternatives, but also allow the government to explain the relative value of 

programs in more comprehensive terms. I hope that our Board will have the opportunity to 

work with the Intelligence Community on such an effort. 

* 

In many ways, the evaluation ofthis long-running program was the most difficult 

first test this Board could have faced. Unfortunately, rather than focusing on whether the 

program strikes the appropriate balance between the necessity for the program and its 

potential impacts on privacy and civil liberties, and moving immediately to recommend 

corrections to any imbalance, the Board has taken an extended period of time to analyze (a) 

statutory questions that are currently being litigated, and (b) somewhat academic 

questions of how the Fourth Amendment might be applied in the future and the First 

Amendment implications of programs that do not presently exist. I believe that with 

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respect to this longstanding program, the highest and best use of our very limited 

resources 701 is instead found in our unanimous recommendations. 

The development of a modified approach to the very difficult questions raised by the 

government's non-particularized collection of data presents an ideal opportunity for the 

Board to fulfill its statutory advisory and oversight role. In this regard, I would note that 

some frequently mentioned alternatives pose numerous potential difficulties in their own 

right. For example, some have suggested that the NSA could essentially request that the 

telephone companies run the queries, rather than collecting and retaining records for 

querying. However, even assuming the companies currently keep the relevant records, 

there is no guarantee that those records will continue to be retained in the future. By the 

same token, if another terrorist attack happens, the pressure will be immense to impose 

data retention requirements on those companies, which would pose separate and perhaps 

greater privacy concerns. Finally, it is not at all clear how a third party entity to hold the 

data could be structured in a way that would (a) be an adequate substitute for the Section 

215 program and (b) preserve the security of those records, while (c) ameliorating the 

perceived privacy concerns raised by that program. 

There is much to consider in the near future, and I look forward to working with my 

colleagues on these important issues. 

701 Although many agencies claim to lack adequate resources, the situation of the peLOl! is particularly 

remarkahle. The agency currently has a full-time Chairman, four part-time Memhers limited to 60 days of 

work per year, and two permanent staff members. The decision to engage in such an extended discussion of 

largely hypothetical1egal issues was therefore not without practical consequences: the Board has delayed 

consideration of the 702 program, and has not addressed any of the other issues previously identified hy the 

Board as meriting oversight. Moreover, the decision of three Members of the Board to allocate the entirety of 

the permanent staff's time to the drafting of the Board Report, while simultaneously drafting and refining that 

Report until it went to the printer, has made a comparably voluminous response impossible. 

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Comments of the Jndiciary on PI'oposlils 

Regarding the Foreign Intelligcnce Snrveillance Act 

Jmmary 10,2014 

These comments on behalf of the Judiciary regarding proposals with respect to lhe 

rorcign Intelligence Surveillance Act of 1978 (FISA), codified as amended at 50 USc. 

§§ 180!·1885c, were prepared by the Honorable John D. Bates, Director ofthe Administrative 

Office ofthe United Stales Courts, in consultation with the current Presiding Judges ofthe 

Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillimce Court 

of Review (Court of Review), as well as with other judges who serve or have served on those 

courts. 

it is the responsibility of the political branches to decide, within the bounds of tho 

Constitution, whallegal requirements and processes or substantive limitations should apply to 

intelligence gathering operations, For that reason, the focus of these comments is nol to provide 

policy advice all issues of national security, foreign relations 01' privacy. Rather, the principal 

objective of these comments is lo explain how certain proposals for substantive or procedural 

chm1ges to rrSA would significantly affect the operations of the FISC and the Cotut of Review 

(collectively, "the Courts"). These comments are presented in an effortlo enhance the political 

branches' ability to assess whether, on balance, it would be wise to adopt those proposals. This 

discussion also notes where we perceive that certain proposals may implicate serious 

constitutional concerns, although detailed mlalysis of the constitutional issues is precluded where 

those issues could foreseeably come before one of the Courts in the event that a proposal is 

adopted. 

The following is a summary of our key comments: 

411 It is imperative that any significant increase in workload for the Courts be 

accompanied by a commensurate increase in resources. 

.. Some proposed changes would profoundly increase ti1C Courts' workload. Even if 

additional financial, personnel, and physical resources were provided, any 

substantial increase in workload could nonetheless prove dismptive to the Courts' 

ability to perform their duties, including responsibilities under FISA and the 

Constitution to ensure that the privacy interests of United States citizens and 

others are adequately protected. 

411 The paTticipalion of a privacy advocate is umlecessary and could prove 

counterproductive in the vast majority ofFISA matters, which involve the 

application of a probable cause or other factual standard to case-specific facts and 

typically implicate the privacy interests of few persons other than the specific 

target. Given the nature of FISA proceedings, the participation of an advocate 

would neither create a truly adversal'ial process nor constructively assist tile 

Courts in assessing the hlets, as the advocate would be unable to communicate 

with the target or conduct an independent investigation. Advocate involvement in 

run-of-the-mill FISA matters would substantially hamper the work of the Courts 
196 

without providing any commensurate benefit in tenns of privacy protection 01' 

otherwise; indeed, ,uch pervasive participation could actually undermine the 

Courts' ability to receive complete and accurate information on the matters before 

them. 

• In those matters in which an outside voice could be helpful, it is critical that the 

participation of an advocate be structured in a millmer that maximizes assistance 

to the Courts and minimizes disruption to their work. illl advocate appointed at 

the discretion of the Courts is likely to be helpful, whereas a ~tanding advocate 

with independent authority to intervene at will could actually be 

counterproductive. 

• Drastically expilllding the FISC's caseload by assigning to it in excess of20,000 

administrative subpoena-type cases per year - even with a conesponding injection 

of resources illld persOlmel - would fundamentally transform the nalure of the 

FISC to the detriment of its current responsibilities. 

• It is imporlilllt that the process for selection of FISC and Court of Keview judges 

remain both expeditious and fully confidential; the Chief Justice is uniquely 

positioned to select qualifIed judges for those Courts. 

II In mauy cases, public disclosure of Court decisions is not likely to enhancc the 

public's understanding ofFISA implementation ifthe discussion of classified 

information within those opinions is withheld. Releasing frees landing summaries 

of COUli opinions is lik.ely to promote confusion and misunderstilllding. 

II Care should be taken not to place the Courts in au "oversight" role that exceeds 

their constitutional responsibility to decide cases and controversies. 

The adoption of millly of the measures disc.ussed herein would impose substantial new 

responsibilities on the FISC and ultimately the Court of Review. For the COUl'ls to meet sueh 

new responsibilities etTectively and with the dispatch often required by national security 

imperatives, they wOltld need to receive commensurate augmentation of resources. Depending 

on what exactly is enacted, the augmentation may require increased legal or administrative staff, 

additional judges or devotion of more ofthe cunentjudges' HOle to the work of the Courts, 

appointment of magis Ira Ie judges to work on the FISC, and enhanced secure spaces and 

communications facilities. The provision 0 [some ofthese resources could well come at (he 

expense ofthe work of judges in their home districts and circuits, thereby negatively affecting the 

operations of their respective federal court~. 

We also wish to stress, however, that even significantly increasing resources will not 

guaramee that all proposed changes will be successful. Giving new responsibilities to the Courts, 

while also establishing more elaborate procedures for the Courts to follow, may actually detract 

from lheir ability to identify and resolve the issues thaI are most critical to national security and 

privacy interests. Thoughtful assessment of the advantages and disadvantages of proposed 

changes is therefore crucial. 

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197 

In our vicw, some proposals that have been made - especially those that would create a 

full-time independent advocate to oppose a wide range of government applications before the 

Courts - present substantial difficulties that would not be resolved by simply increasing the 

Courts' resolUces. We anticipate that this form of advocate participation would not only be 

cumbersome and resource-intensive, but also would impair the fiSC's ability to receive relevant 

information, thereby degrading the quality of its decisionmaking. We turn first to this question. 

Proposals for a Special Advocate to Appear Before the Courts 

The vast majority of FISC matters are ex parte requests by the government for search 

warrants, electronic surveillance orders, production of records or pen registerltrap-and-trace 

orders. Every day, Cnitcd States district COLu-ts receive dozens of such requests in criminal 

investigations and rule on them in an ex parte manner, with no party present except the 

government. The FISC process is very similar to the one employed by the district courts in these 

criminal matters, 

Consistent with this well-established procedure for entertaining requests of this nature, 

FrSA docs not currently provide a means for the FISC to solicit the assistance ofllongovernmental entities in considering issues presented by such requests. Moreover, except in the 

rme situation where substantial information about an ongoing case has heen declassified, I nongovernmental individuals and entities now lack the information needed to seek leave to 

participate as amici curiae and to assist the FISC or Court of Review in resolving difficult legal 

or tcclmological issues. An effort to address these narrow concerns would not be objectionable, 

as long as it does not burden Court operations in the large majority of cases where there is no 

need for a quasi-adversarial process. 

Recent public debate has focused on matters such as NSA's bulk collection of call detail 

records under Section SOl ofFISA, codified at 50 U.S.C. § 1861, and the government's 

acquisition ofinformation pursuant to Section 702 ofFlSA, codified at 50 U.S.CO S 1881 a. Such 

matters, however, comprise only a small portion of the FISC's workload, measured eilher by 

munber of cases or allocation of time. In all but a small number of matters, the FISC's role is to 

apply a probable cause or other factual standard to target-specific sets of facts and to assess 

whether the government's proposed minimization procedures are adequate under the particular 

circumstances. The authorizations sought in the large majority of cases do not implicate the 

privacy interests ormany U.S. persons because the collections at issue arc narrowly targeted at 

particular individuals or entities that have been found to satisfY the applicable legal standards. 

Nor, except in a small handful of cases, do such matters present novel or complex legal or 

technical issues. Accordingly, as tbe President's Review Group on Intelligence and 

I See In re Application of the Federal Bureau of Investigationfor an Order Requiring the 

Production of Tangible Things, Memonmdum Opinion and Order, Docket No, DR 13-1 S8 (FTSA 

CL Dec. 18, 2013), where the FISC authorized a nOll-governmental advocacy group to Iile an 

amicus brief addressing the bulk telephony metadala collection program. 

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198 

Communications Technologies ("Review Group") has recognized,' most FlSA cases are similar 

to law enforcement applications for search warrants and Title III wiretaps, which also are 

considered ex parte. Providing for an advocate in the large majority of cases, then, would be 

superfluous and would create the unusual situation ill our judicial system of affording, at this 

stage of the proceedings, greater procedural protections for suspected foreign agents and 

iuternationaltcrrorists than for ordinary u.s. citizens in criminal investigations. 

To be sure, genuinely adversarial processes, such as criminal or civil trials, provide an 

excellent means of testing a party's factual contentions. But introducing an advocate into the 

FISA process would not produce that result. Advocates of the type put forward in various 

proposals to change FJSA would not actually represent a proposed target of surveillaJ1ce or any 

Olher particular client.' For operational security reasons, such an advocate would not be able to 

conduct an independent factual investigation, e,g, by interviewing the target or the target's 

associates. An advocate therefore vvould he oflittle, if any, assistance in evaluating the facts of 

pmticular cases which, as noted above, is the hcali of tile FISC's comideration in the large 

majority of cases. 

Indeed, we are concerned thal proposals to create a full-time advocate with the discretion 

to participate, or seek leave to patiicipatc, in any or all cases would impair rather than improve 

the FISC's ability to receive information and mle on applications in an effective and timely 

manner. Enhanced resources would help the FISC overcome these impairments, but only to a 

limited extent. In order to explain the reasons tor these concerns, it is helpful to summarize how 

the FISC operates. 

When the rISC was created, it was assumed lhat it would 

resolve routine and individualized questions offact, akin to those 

involved when the government seeks a search warrant. It was not 

anticipated that the FISC would address the kinds of questions that 

benefit from, or require, an adversary presentation[;] ... however, 

the FISC is sometimes presented with novel and complex issucs of 

law. The resolution of those issue,' would benefit from an 

adversary proceeding. 

Liberty and Security in a Changing World: Report and Recommendations of the President's 

Review Group on Intelligence and Communications Teclmolofiies (Dec. 12,2013) ("Review 

Group Report") at 203 (emphasis added). The Review Group further acknmvledged that 

"[b Jecause the number of FISA applications that raise novel or contentious issues is probably 

small, the Advocate might find herself with relatively little to do." !d. at 204. 

J See, e.g., Revie',j/ Group Report at 200 (recommending creation of a "Public Interest 

Advocate to represent privacy and civilliberlies interests" before the rlSC). 

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199 

Judges appointed to the FISC relain all their regular responsibilities for civil and criminal 

cases assigned to them in their respective districts. Each week, one of those judges is on duty for 

the FISC in Washington, D.C. Eight ofthe eleven judges do not reside in the Washington, D.C. 

area and must travel from their home districts in order to serve as the duty judge. The duty week 

assignment rotates among the judges, so that each judge takes one week every few months away 

from district COUlt responsihilities to do FISC work. This rotation system avoids serious 

disruption to the work of any one district when ajudge serves on the FISC. 

Because much of the material reviewed by the FISC is highly classified, its work 

generally must be perfonned in a Sensitive Compartmented Information Facility (SCIF). FISC 

quarters in Washington, D.C., including ollice space and a court room (which are also shared by 

the Court of Review), are within such a SCIF. In contrast, a lack of secure communication and 

storage facilities makes it very diiticult for eight of the elevclljudges to review FISC pleadings 

or commwlicate about FISC matters when they are in their home districts. The large majority of 

FISC cases are hlUldled by the duty judge within one week while in Washington (though 

prcparatOlY work by Coun staff often commences dming the prior week). iVfore complex or 

time-consuming matters afC sometimes handled by judges outside ofthe dUly-week rotation, at 

the discretion ofthe Presiding Judge. 

FISC judges cUlTently have substantial flexibility in deciding how best to receive rrom the 

government information they consider relevant to a particular case. Formal hearings are 

conducted when necessary. On the other hand, when deemed appropriate by ajudgc (for 

example, in a lime-sensitive matter), the FISC may request or receive information [rom the 

applicant informally through its legal slaff This range of options enables the FISC duty judge to 

routinely entertain 40 or more applications in a typical week. In keeping with the ex parte nature 

ofthe proceedings, the government generally responds to these inquiries with a high degree of 

candor; indeed, the government routinely discloses in an application information that is 

detrimental to its case. This candor is also essential to the FISC's ability to discharge its 

responsibilities. 

Intl'Oducing an advocate into a substantial number of FISC proceedings wouldlikcly 

slow down and complicate the Court's information-gathering and consideration of these factintensive cases. Under cun-cnt FISC rules ,md practice, in non-emergency cases the government 

is required to submit proposed applications to the FISC within seven days of when it seeks (0 

have the tl nal application ruled upon. In order for an independent advocate to have a meaningful 

opportunity to review an application, decide whether he wishes to participate in its consideration, 

and prepare and submit views to the FISC, and for the FISC to consider the advocate's 

submission together with the application, the government would have to submit a proposed 

application substantially earlier than the present seven-day period. That requiremcnt would 

likely conilict with the government's interest and the public's interest io obtain expcdited 

consideration of an application or of successive applications when necessary to respond to a 

rapidly evolving threat. Moreover, even relatively routine national security investigations often 

involve changing facts, such that proposed applications would frequently require change or 

5 
200 

supplementation. This process of keeping the FiSC and the advocate apprised of changing 

circumstances over a longer period of time would be cmnbersome and time-consuming. 

This prolonged period of consideration in routine cases would also complicate the 

assignment of matters to FISC judges because such proceedings would likely extend beyond a 

judge's normal duty week. The more cases in which an advocate is involved, the more likely it 

would be that the Court would have lo modify its current practice of having each rISCjudge sit 

for one week at a time. A different approach, requiring ajudgc to engage with FISC matters for 

longer periods, is likely to require more time away ii'om judges' home districts, to (hc detriment 

of their regular dislTict court work. 

The difficulties of such a process would be exacerbated by the need to interact on equal 

terms with the applicant and the advocate. In order for the FISC to abide by the procedural und 

ethical requirements that apply in adversarial proceedings, and for the advocate to appear on 

equal footing with the applicant, the FISC would have to ensure that the advocate was involved 

in all such interactions in any case in which the advocate may participate (or, if the advocate 

must scek leave to participate from the FISC, perhaps only in those cases where such a rcquest is 

pending or has been granted). We expect that the logistical challenges of administering such a 

three-way process for more than a handful of cases would he considerable. And even if it were 

appropriate under the terms of a specific enactment to limit the involvement of the advocate in 

such interactions to cases where the advocate has sought or rcceived leave to participate, the 

FISC may well need to ensure that the advocate, upon entering a matter, becomes fully apprised 

of SrlY interactions that have alrcady occurred4 

At an institntionallcvcl, there are difficult policy, and potentially constitutional,s 

questions regarding how an advocate would fit within existing govermncn!a1 structures. The 

Review Group recognized that where to house tbe advocate presents a "diftlcult issue" and came 

to no particular rccommendation on this point. See Review Group Report at 204-()5. Some 

proposals for an advocate may also compromise judicial independence.' 

4 If the advocate and an applicant have a dispute about what information the advocate 

should receive, then the FISC may be required to resolve collateral, discovery-type issues, which 

would place new forms of demands on the resources of the Court and create the potential for 

delays lhat would impact national security. 

5 See Congressional Research Service, introducing a Public Advocate into the Foreign 

Intelligence Surveillance Act's Courts: Select LegalIssues (Oct. 25, 2013) at 8-14 (discussing 

issues under the Appointments Clause). 

6 Some proposals would grant the advocate broad access, not only to government 

pleadings and Court decisions, but also to Court material relev,ml to (hose decisions. Such broad 

access could be understood to encompass draft decisions and mcmoranda from \egal staff to a 

(continucd ... ) 

6 
201 

In ShOli, the burdens and complications arising from a full-time advocate who could elect 

to participate (or seek leave to paliicipate) in fact-intensive, run-of-the-mill cases, weighed 

against the negligible bene11ts from involving an independent advocate in consideration of those 

cases, strongly cmmsel against creation of such a position. 

Perhaps most troubling, however. is our concern that providing an institutional opponent 

to FISA applications would alter thc process in other ways that would be detrimental to the 

FISC's timely receipt of full and accurate infomlation. As noted above, the current process 

benefits from the government's taking on- mel generally ahiding hy - a heightened duty of 

candor to the Court. Providing for an advcrsarial process in run-of~lhe-mill, fact-driven cases 

may erode this norm of governmental behavior, thereby impeding the Court's receipt ofrelev,ml 

facts. (As noted above, the advocate would rarely, if ever, serve as a separate somee of factual 

information.) Instead, intelligence agencies may become reluctant to voluntarily provide lO the 

Court highly sensitive information, or information detrimental to a case, because doing so would 

also disclose that information to a permanent bureaucratic advcrsary. This reluctance could 

diminish the Court's ability to receive releVallt information, thereby undemlining the quality of 

its decisions. In some cases, that reluctance could result in those agencies' opting not to pursue 

potentially valuable intelligence-gathering operations governed by FISA in order to protect 

extremely sensitive intelligence methods or targets trom disclosure to that adversary7 

'( ... continued) 

judge. Such materials are privileged eonullunications under both etbical canons and separationo!:powers principles and their disclosure to tbe advocate would seriously infringe on the 

independence of the judges' decisionmaking. 

7 Some might suggest that an advocate who can engage across-the-board in FISA matters 

would enhance public perception that the process is fair and takes into account privacy, as well as 

national security, interests. Recent disclosures by the FISC alld the Exccutive Branch have done 

much to dispel the misperception that the FISC "rubber stamps" govennnent requests. See, e.g., 

Review Group Repayl at 202 ("As illustrated by the [reccntly declassified] section 215 and 

section 702 non-compliance incidents ... , the FISC takes seriously its responsihility to hold the 

government responsible for its eITors."); Letter of the Honorable Reggie B. Walton, FISC 

Presiding Judge, to the Honorable Patrick J. Leahy, Chainnan, Senate Committee on the 

Judiciary (Oct. 11,2013) ("During the three month period lonn July 1,2013 through September 

30,2013, we have observed that 24.4% of matters submitted [to the FISC] ultimately involved 

substantive changes to the information provided by the government or to the authorities granted 

as a result of Court inquiry or action."). Moreover, puhlic action such as cnhancing transparency 

and modifying the substantive rules ami standards governing intelligence collection (or 

reaffirming current rules and standards arter public examination and debate) would be more 

likely to improve eonhdcnce in the FISA process than would introducing a new layer of secret 

bureaucracy. 

7 
202 

A mechanism that facilitates the involvemenl of an advocate in those particular cases that, 

in the Court's judgment, would benefit from an advocate's participation would largely avoid 

these diFt1cultics. Contrary to the suggestion of the Review Group, see Review Group Report at 

204, we believe that judges arc fully capable of determining which malleTS would benefit from 

such participation and how best to structure participation within a particular case.' If an 

advocate's participation is at the discretion oflhe Court, bowever, placing statutory limitations 

on the types of cases in which that participation is available may prevent the Court from 

benefitting from the advocate's contributions in an appropriate case. For example, limiting an 

advocate's participation to cases presenting a novel or significant interpretation of the law could 

prevent the Court trom taking advantage of an advocate's participation in a case that presented 

challenging technological, rather than legal, issues. Such limitations might also raise 

constitutional qnestions. See Congressional Research Service, Requiring a Federal Court to 

Hear from an Amicus Curiae (Dec. 9, 2013) at 4. 

Proposals that would empower a permanent advocate to independently seek 

reconsideration of FISC decisions, or to appeal them to the Conti of Review, would pose 

dilliculties in addition to those summarized above. As others have noted, substantial standing 

[mel other constitutional issues would be presented if the advocate sought to challenge an 

authorization granted by the PISe. See Congressional Research Service, Introducing a Public 

Advocate into the Foreign fnrelligence Surveillance Act's Courts: Select Legal Issues at 21-26 

(Oct. 25, 2013). 

As a practical matter, a full-time advocate empowered to seek reconsideration in the FISC 

and to appeal decisions to the Court of Review would significantly impact the operations of both 

Com1s. An increased number of reconsideration requests would pose scheduling and logistical 

challenges in the FISC's current mode of operations. FJSC judges frequently mle on cases toward 

the end of their duty week, so in many cases it is highly unlikely that an advocate's request for 

reconsideration would even be tiled before a sitting judge from a district outside of the District of 

Collmlbia area returned to his or her district. As a result, judges would need to arrange their 

regular district court schedules to allow for an additional, return trip to Washinglon in the event a 

request for reconsideration were filed. I f requests for reconsideration became sufficiently 

common, the FISC would likely need to reexamine its current one-week rotation schedule. Either 

approach would negatively affect judges' ability to perform their district court duties. 

In the Court of Review, any me,mingful increase in the number of appeals wonld 

transform Ihe operations of that Court, which heretofore has not had a workload requiring fulltime operation. Because Comt of Review judges also serve full-time on district courts or courts 

of appeal, a significant increase in the number of FISA appeals might necessitate more judges 

being appointed to the Court of Review. And because the Court of Review currenlly relies on 

FISC statT and uses the FISC's secure space to conduct its work, a significant increase in its 

, An approach in which the FISC could appoint an advocate in a pat1icular case where 

the advocate's participation would be helpful would also enable the Court to select an advocate 

who does not present recmal issues for the judge handling the case. 
203 

workload would likely require the Court to hire its own stalTand construct or acquire its own 

secure space. 

F(Jeci a/Certain Substantive Proposals on Court Operations 

The following substantive proposals would impose significant new demands on the FISC 

and ultimately the Comt of Review. 

Changes to National Security Leller Practices: The Federal Bureau ofInvestigation (FBI) 

uses national security letters (NSLs), which are akin to administrative subpoenas, mainly to 

obtain subscriber information, see Review Group Report at 90, although other types of records 

may also be obtained, see. e.g .. 15 lJ.S.C. § 1681 u (consumer report records). 

An NSL-related recommendation of the Review Group could increase the FISC's annual 

caseload severalfold. lJnder that recommendation, an NSL could be issued in non-emergency 

circ.umstances "only upon ajudicial finding" of "reasonable grounds to believe that the particular 

information sought is relevant to an authorized investigation intended to protect against 

internalionallerrorism or clandestine intelligence activities." Review Group Report at 89, 93 

(internal quotations omitted). The Review Group did not reach a conclusion about whether to 

give jurisdiction over NSL requests to the FISC or other federal courts, ld. at 93. The Review 

Group recognized, however, that assigning such cases to the FISC "would pose a serious 

logistical challenge. Thc FISC has only a small number of judges and the FBl currently issues an 

average of nearly 60 NSLs per day.[9j II is not reolistic to expect the FISC, as currently 

constituted, to handle that burden." ld. (emphasis added). We strongly agret:. We are skeptical, 

however, that the suggestions put forward to revamp the FISC to take on such demands -- "a 

signiticant expansion in the nwnber of FISC judges" or "crealion within the FISC of several 

federal magistrate judges to handle NSL requests," id. - would be adequate. 

Moreover, even if one assumes that adequate resources can be made available to the FISC 

to handle the sheer volume of new cases without compromising the district court work of FISC 

judges, jurisdiction ovcr 21,000 NSL requests per year would transform the FISC from an 

institution that is primarily focused on a relatively smallllumber of cases that involve the most 

intrusive or expansive forms of intelligence collection to one primarily engaged in processing a 

much larger number of more routine, subpoena-type cases. We fcar that such a drastic shift of 

emphasis would diminish the FISC's effectiveness in adjudicaling and overseeing cases 

involving electronic surveillance, physical search or Section 702 acquisitions. 

9 In annual terms, the FBI issued 21,000 NSLs in Fiscal Y car 2012. Review Group 

Report at 90. By way of comparison, the FISC entertained 212 business records applications and 

1,856 applications for electronic surveillance and/or physical search in calendar year 2012. 

Letter of Peter J. Kadzik, Principal Deputy Assistant Attorney General, Office of Legislative 

Affairs, U.S. Department of Juslice, to the Honorable Harry Reid, Senate Majority Leader 

(Apr. 30, 2013). 
204 

Others have proposed changes to NSL requirements that would also have substantial, 

albeit less direct, effects on the FISC's caseload. For example, requiring ml NSL to disclose to 

the receiving party the factual predicate for issuing the NSL would implicate investigative 

information that the FBI presumably would have good operational security reasons not to 

disclose in national security cases, regardless of how well-supported tile NSL may be." These 

changes wonld likely result in the government's decreasing its reliance on NSLs for records 

subject to sucb a disclosure requirement and instead bringing to the FISC morc applications 

under Section 50 I for production or such records, in order to avoid disclosure of such 

information to private parties. 

Seclion 501 - Bulk Call Detail Records: Some proposals call for elimination of bulk 

production (0 the government of call detail records under Section 50!. See, e.g., Review Group 

Report at 86-89, 115-19. If the bulk production of such records were eliminated, we anticipate 

that the government would bring to the FISC many more particularized applications for 

productions of such records or, as envisioned by the Review Group, for authorization to query 

bulk metada!a retained in private hands. Id at 115, 118-119. Others have considered preserving 

the govenmlent's ability to obtain bulk production of call detail records, provided that the FISC 

would review the substantive basis for querying that information (either before or aftcr thc fact). 

Ally of these variations would impose significant new burdcns on the FISC. 

Nondisclosur~ Provisions o/FJ.<;C Orders: It is not apparent that recipients of FISC 

orders are generally interested in publicly disclosing those orders. For example, a recipient of an 

order to produce records under Section 50 I may challenge a related nondisclosure order after one 

year from the date the latter order was issued. See § 501(t)(2)(A)(i), codified at 50 U.S.C. 

§ 1861(1)(2)(A)(i). From 2005 through 2012, the FISC granted approximately 750 applications 

under Section 501. To date, no recipient of a Section 501 order h~s ever challenged its 

non-disclosure obligations pursuant to Section 501 (f)(2)(A)(i), I' 

Nevertheless, some have proposed substantial chmlges in this area. For example, the 

Review Group recommends that nondisclosure obligations should be placed on recipients of 

I\SLs, Section 501 orders, pen register and trap-and-trace orders, Section 702 directives, and 

"similar orders directing individuals, businesses, or other institutions to turn over information to 

the government, .. only upon a judicial finding" - presumably by the FISC in matters within its 

purview - "that there are reasonable grounds to believe that disclosure would significantly 

threaten the national security" or another specified type of harm. Review Group Reporl at 

10 We note that the President's Review Group recognizes that the factual predication for 

NSLs is likely to involve classified information. See Review Group Report at 93. 

I' In cases now pending before the FISC, several providers are seeking a declaratory 

judgment that they may lawfully release certain aggregate statistical infollmtion about various 

types of orders they bave reccived, including Section 501 orders. Those cases, however, were 

nol brought lmder Section 50 I (t)(2)(A)(i). 
205 

122-23. It further recommends that a nondisclosure order "remain in drect for no longer than 

180 days without judicial re-approval." {d. at 123. 

Practically all FISC orders of various types identifY the target, either directly or by 

disclosing lm-get-specific information, such as a phone mnnber the target uscs. As we understand 

long-standing Executive Branch classification practices, the government typically regards the 

targets of counterintelligence or international terrorism investigations as classified while those 

investigations are ongoing and for u( least several years thereafter. Under an approach such as 

the one recommended by the Review Group, we would anticipate that each application would be 

accompanied by a requesl for a nondisclosure order and that practically all applications would 

entail successive requests to extend those nondisclosure orderso This new form ofreqllesl would 

require the government to present, and the FISC to assess, facts and considerations that are 

distitlct from whether the proposed collection is warranted and U.S. person privacy interests are 

adequately protected. Without arriving at a policy conclusion, we are skeptical (hat this proposed 

new process would lead to greater public understanding of the implementation ofFISA or other 

tangible benet Its, and whether any such benefits arc commcnsurate with the burdens imposed by 

entertaining a line of periodic requests to extend nondisclosure obligations for a large percentage 

of current and former FISA targets. 

Querying Section 7021njimnalion: Section 702 ofFISA concems cerlain acquisitions of 

foreign intelligence information targeting non-U.S. persons who are reasonably believed La be 

outside the United States. Currently, the govemment may not target U$o persons for acquisition 

under Section 702, see § 702(b)(l), (3), but infonnation about U.So persons may still be obtained 

(eog., when a U.S, person communicates with a targeted nOIl-C.S. person). Proposals have been 

made to generally prohibit querying data acquired under Section 702 for information about 

particular U.S. persons, with ill1 exception for emergency circumstances and for U.S. persons for 

whom a probable cause showing has been madco 12 These proposals would engender a new sct of 

applications to the FISC. Decisions about querying Section 702 information are now made 

within the Executive Branch. As a result, the Courts do not know how often the government 

perfonns gueries of data previollsly acquired nnder Section 702 in order to retrieve information 

about a particular U.S. person. It seems likely to us, however, (hal the practice would be 

common for u.s. persons sllspected of activities of foreign intelligence interest, e.g., engaging in 

international telTorism, so that the burden on the FISC of entertaining this new kind of 

application could be substantial." 

12 See, e.go, Review Group Report al146 (recommending thal such gueries be allowed 

"when the govermnent obtains a warrant based on probable cause to believe that the United 

States person is planning or is engaged in acts of international terrorism') 

Il For a variety of reasons, a U.So person suspected of such activity rnay not otherwise be 

a FlSA target For example, there may be probable cause to believe that a U,S. person is engaged 

in international terrorism, but intelligence agenc.ies may not have the ability to implement current 

forms ofFISA collection against that person because of the person's location or lack of 

(continued.,,) 
206 

Seleclion of FlSA Judges 

Currently, the Chief Justice selects eleven district comi judges to serve on the FISC for 

staggered terms not to exceed seven years. 50 U.S.c. § JS03(a)(l), (d). In order Lo ensure that 

judges bring to the FISC experiences and practices developed around the country, these judges 

must represent at least seven ofthe judicial circuits. § 1803(a)(1). At least three of the FISC 

judges must reside within 20 miles of Washington, D.C, so that ajudge will be continuously 

available to entertain urgent matters. IQ. The Chief Justice also selects three district court or 

circuit court judges to serve on the Court of Review for terms nollo exceed seven years. 

§ 1803(b), (d). 

Various proposals have been made to alter the selection or composition of judges on 

these COWiS,'4 apparently reflecting a concern that their current membership is, or may be 

perceived to be, politically or ideologically slanted." Wc urge those considering these proposals 

to be mindful that a smoothly functioning selection process is necessruy for the Courts to 

discharge their responsibilities. 

For the Comis to operate elTectively, prolonged vacancies must be avoided. Maintaining 

a full complement of judges will become even more imperative if other legislative changes result 

in a heavier workload for the Courls. We arc concerned that a selection process that involves 

more persons ~- and espccially one that is likely to introduce political factors - would result in 

vacancies detrimental to Court operations and possibly to national security. 

Il has also happened from time to time that a judge being considered for service on one of 

the Courts is not ultimately selected because Df issues arising from the mandatol)' background 

investigation. 16 Knowledge of a problematic background investigation would be more 

widespread if more persons were involved in the selection process. The prospect of potential 

1Je. .. continued) 

information about particular facilities. 

14 The Review Group recommends dispersing the authority to select FISC judges, such 

that "each member of the Supreme Court would have the authority to select one or two members 

of the FISC from within the Circuil(s) over which she or he has jurisdiction." Review Group 

Report at 208. Various other proposals would involve the chief judges ofthcjudicial circuits, the 

President or Congressional leadership in the selection of FISC or Court of Review judges. 

15 See, e.g., Review Group Repurt at 207-08 (noting that tell out of the eleven current 

FISC judges were appointed to the district comi bench by Republican presidents). The fact that 

both current Court of Review judges were appointed to the federal appellate bench by a 

Democratic president receives less attention. 

16 This background investigation is required by the security measures adopted by the 

Chief Justice in consultation with the Attorney General and the Director of National Intelligence, 

pursuant to 50 U.S.c. § 1803(c). 
207 

embarrassment - potentially for an individual who would continnc 10 serve publicly for the 

remaimler of her career as a sitting federal judge - might deter qualified judges from wanting to 

serve on the Courts. 

With specific regard to FISC operations, it is also importlmt to maintain the practice of 

having multiple judges based in Washington, D.C., or its immediate vicinity. In its current form, 

FISA explicitly relies on a pool of local judges to hanule particular kinds of time-sensitive cases. 

50 U.S.C. § 1803(e)(I). This approach is sensible, given the severe security-related limitations 

on the ability of non-local judges to work on I'[SC matters in their home districts. For the same 

reason, thcrc is (l further need for local judges to handle other types of emergency situations, as 

well as complex matters that reqnire ajndgc's cngagcmcnllor longer than a single week in the 

oruinary duty rotalion. See, c,g, Section 702(i)(1 )(I3) & (3)(C) (thirty-day period for FISC to 

review certifications and proeednres for acquisitions targeting non-U.S. perSOllS outside the 

United States and to provide a written statement of the reaSOllS for its decision). Proposals that 

would make it more dimwit to ensurc that multiple FISC judges are based in the Washington 

area would negatively aflect FISC operations, 

Finally, proposals to disperse the selection authority among the associate justices of the 

Supreme Court or chief judges of the federal circuits ignore the Chief Jnstice's unique role in the 

Judicial Branch. The Chief Justice is the President of the Judicial Conference of the Uniteu 

States, which includes the responsibility to assign federal judges across the country to the various 

Conference committees and other tasks, including service on special courts such as the Judicial 

Panel on Multidistricl Litigation." The Chief Justice is therefore uniquely positioned, with the 

assistance of the Director of the Administrative Oi1ice of the United States Courts, to review the 

Cederaljudiciary and select qualitledjudges for additional work on the FISC or the Court of 

Review.: 8 

Public Disc/osure and Declassification of Court Opinions 

and Other F1SA-Related information 

The Judicial Branch is committed to making court opinions available to the public unless 

there is a compelling need for secrecy. The FISC regularly makes publicly available those ofils 

opinions that do not contain classified information. 

A number oflegislative proposals are aimed at making more information available to the 

public about FISA legal ill1crpretations and other aspects of FISA implementation. Cases 

involving declassification and release of such information are pending before the Courts, so wc 

arc especially constrained from addressing (he substantive merits ofthcsc proposals. We do, 

I7 The associate justices have no role in this process. 

18 Although the selection of judges for the FISC and the Court of Review is often labelled 

as an "appointment," it is more accurately considered to be a designation to serve on the Court. 

13 
208 

however, believe that the following points should be kept in mind as these proposals arc 

assessed. 

First, to the extent that the Courts may be assigned a new role in declassification and 

release ofinfonnation. that role shuuld accord with the constitutional allocation offunclions in 

that sphere. Under the Constitution, classification of information in order to protect national 

security has becn considered an Executive Branch responsibility. See Dep 'I of Navy v. Egan, 

484 U.S. 518, 527 (1988). Whenneeessary to resolve a case before it (e.g., under the Freedom of 

Information Act, 5 U.s.C. § 552), a federal court may review classification decisions made by the 

Executive Branch, typically under a deferential standard. See, c.g., Krikorian v. Dep 't 0/ State, 

984 fC.2d 461, 464 (D.C. Cir. 1993). 

Second, while wc support the highest degree oftransparcncy consistcnt with protection of 

scnsitive intelligence sources and methods and other properly classified information, we believe 

that there are praclicallimitations as to what can be achieved. Signilicant FISC opinions 

frequently involve the application ofiaw to a complex set of facts, e.g., how to apply FISA's 

four-part defiuition of "electronic surveillance," see 50 U.S.C. § 1801(t), Lo a proposed 

surveillan~e method for a new communications technology. The govcrmncnt may often believc 

it necessary to withhold from the public details about how a surveillance is conducted, so that 

valid intelligence tlrrgets are not given a lesson in how to evade it. But a redacted opinion that 

does not contain this tactual information may merely recite statutory provisions or provide a 

partial discussion of how those provisions were applied, without tbe factual context necessary 10 

understand the opinion's reasoning and result. In such cases, partial releases of opinions run the 

risk of distorting, rather than illuminating, the reasoning and result of Court opinions. That risk 

is probably even greater for summaries of opinions that are offered as public substitutes for 

withheld opinions, rather than as guides to opinions that are published. 

We further suggest that, apart trom the need to protect national secUIity, legislative 

proposals for release of COUli opinions should take into consideration appropriate protections for 

other categories of information, such as the names of government perso!l!lcl or information 

implicating substantial privacy interests. Finally, any procedurallramework for public disclosure 

should permit the Court a reasonable time to take any necessary actioll. Some proposals would 

impose severe time constraints. 

FISC Role in Monitoring and Ell/arcing Executive Branch Compliance 

A common objective ofproposeJ changes to FISA is to enhance monitoring and 

oversight of intelligence gathering activities. Some particularly envision new roles for the FISC 

in this rcgard. 

All three brunches of government have responsibilities regarding FISA implementation. 

But it is important to recognize that the FISC does not have, and should not have, general 

auditing and oversight [·unctions comparable to those performed by an Inspector Gcneral or a 

Congressional committee with jurisdiction over a particular Executive Bnmch agency. Judicial 

14 
209 

involvement in the FISA process occurs within the context of Article III's cases or controversies 

requirement. FISA currently respects those Article III limitations by contemplating FISC 

involvement in the form of monitoring and enforcing compliance with FISC orders and 

authorizations, i. e., within the context of FISC cases." To the extent that icgislati ve proposals 

would enhance FISC review of Executive Branch compliance within the context of a particular 

FISC case, they are less likely to present constitutional difficulties. On the other hand, proposals 

that would assign to the FISC duties that are disassociated from any case before it would 

seriously risk exceeding constitutional limitations on the involvement of an Article 1lI court in 

Executive Branch operations,20 

Finally, in line with the foregoing discussion of other matters, if the FISC were to be 

given a greater role in monitoring and enforcing Executive Branch compliance, it would require a 

commensurate increase of its current resources to discharge those responsibilities effectively, 

19 See 50 U,S,C. §§ 1803(h) ("Nothing in lhis chapter shall be construed to reduce or 

contravene the inherent authority of the [FISC] to determine or enforce compliance with an order 

or rule of such court or with a procedure approved by such cour!."); IS05(d)(3) ('"A t or before the 

end of the period of time for which electronic surveillance is approved by an order or an 

extension, the judge may assess compliance with the minimization procedures by reviewing the 

circumstances under which information concerning United States persons was acquired, retained, 

or clisseminatecl."); 1824(d)(J) (same tor physical search). 

20 See, e.g, Summers v. r;arlh h/and Institute, 555 U.S. 488, 492 (2009) (Article 1II 

limits the judicial power to deciding cases and controversies and, except "when necessary in the 

execution of that function, courts have no charter to review and revise legislative and executive 

action"); In re Sealed Case, 310 F.3d 717, 731 (FISA Ct. Rev. 2002) (FISC "may well have 

exceeded the constitutional bounds that reslTict an Aliicle III court" by asserting authority over 

"the internal organization and investigative procedures of the Department of Justice which are 

the province of the Executive Bnmch (Article II) and the Congress (Article I)") (per curiam). 

15 
210 

,~~ ... ~ 

<t '" '<I, ,~ ... r!. $ 

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ADMINISTRATIVE orF1CEOF THE 

UNITED STATES COURTS 

J.}M"~",,, )niIM D ~~ r,..;S >- WASIilNOTON. D.C. 1()544 

lhmonlble IJl)b Ooodbtte 

thij;rnmn 

CornmiHcc on (he Judici~ry 

U~i1cd States House orRep"'s~nl!lljws 

Wlishingt(ln, OC20S15 

D~ar Chainnan GoodI3n~; 

JanwIIY 13.2014 

To beller address Ihl:' continuing InteresT from S(\'cmJ CtlI1Il.re,;siunal commince, in tht: 

views uflhe Judicial)' rtgartling potel\tinl c.hangd 10 forci!:" intdligtnce surveillance tnw and 

prnclice.l urn wrilinf; 10 rovjd~ tile follOWing pcrspcclivcs on ccrtllin p!'()po,.l~ cum:ndy under 

COR5idcralion, 

TrJdiliunally. the vi~ws Qrlh~ Judiciary 011 legi~lalivc maUers arc expressed Ihroullh Ihr 

Judiciul Cunr~~nce ofth~ United Stmes. ror which I serve as Secretary. Howevcr. bccnU5e the 

mailers at is,,1C here relate to ~~;(ll C~perti5C e.nd experience of only a small number ofjudgC5 

on (WII speciaJilcd courts, the Confe ..... 'f1cc has nOI nilltis lim/! bee!, engoged 10 delibemte on 

tltem. In my capacity as Din:cwr of tltc AdminiSITllljwomc~ of the United StalL'S CourIli.lllilYe 

re'ponsibilily Inr facililalin~ lhe admiuislmlion of the fodcral courts and. funhcnnorc, the Chiet 

h..slice of Ihe United Slalcs has requeslcd lhat lOCI au lIairon for the Jlldidury on Inaner.; 

concernmg 1he Fureign In1elligencc Surveillum:c ACI (ilISA). In considering such matters-.] 

bene!;1 frmn havinj; served as !'fl:slding Judj;c ('lfthe FO(eign ]nlclligcn(,-e Surveillance 

Cuun (FISC). 

Enclosed is a dOCllI1lcnl selling forth Ihe Judiciary's comments concerning certain 

potential changes 10 FISA :lnd pr()Cccdillgll ber""" Ihe FISC nnd the !'orei!!,n InlclUgcllcc 

Surveillance Court of Review. In preparing lhi$ document, I have consulted wilh lhe cumn! 

PresidinJl,Jullges oftlte FISC and \he Court ofRc\'icw, all well II!; witlt ('llker judges who l\I.'f\'eur 

have SCl'\'c<l on th('l~e courts. for Ihe sake orConvcnI(ncc, Ihr()u\;houtlhe cncioSC<l docum~ol 

(ar)d in the ."unnl!\ry below) I USC!1Ie lenn~"we~ and "j)ur" 10 dellCribo: \he Jutliciary's 

imliluli<mal perspeclivc~. 
211 

Honorable Bob Goodlatte 

Page 2 

OUf comments focus on the operational impact on the Courts from certain proposed 

changes, but we dc' nO! express views on the policy choices that the political branches are 

considering. We are hopeful, of course, that any changes will both enhance our national security 

and provide appropriate respect and protection for privacy and civil-liberties interests. Achieving 

that goal undoubtedly will require great attention to the details of any adjustments that are 

undertaken. For example, it may not be important whether an outside pm1icipant in certain 

matters before the COUlis is labeled an amicus curiae or public advocate; what matters is the 

specific structure and role of such a participam. 

The following is a summary of our key comments: 

.. It is imperative that any significant increase in workload for the Courts be 

accompanied by a commensurate increase ill resources. 

.. Some proposed changes would profoundly increase the Courts' workload" Even if 

additional financial, personnel, and physical resources werc provided, an} 

substantial increase in workload could nonetheless prove disruptive to the Courts' 

ability to perform their duties, including responsibilities under FISA ,mel the 

Constitution to ensure that the privacy interests of United Slates citizens and 

others arc adequarely protected" 

.. The participation of a privacy advocate is ullnecessary-and could prove 

cOlmterproducli ve--in the vast maiority of nSA matters, which involve the 

application of a probable cause or oHler factual standard to case-specific facts aEd 

typically implicate the privacy interests of few persons other than the specillcd 

target. Given the nalme of FTSA proceedings, thc participation of an advocate 

would neither create a truly adversarial process nor constmctively assist (he 

Courts in assessing thc facts, as the ad vocate would be unable to communicate 

with the target or conduct an independent investigation. Advocate involvement in 

nm-of-the-milll'TSA matters would substantially hamper the work of tile Courts 

without providing any countervailing benefit in terms ofprivaey protection or 

otllerwisc; indeed, such pervasive participation could actually undermine the 

COUlis' ability [0 receive complete and accurate intormation on the matters before 

them. 

• In those matters in which an outside voice could bc helpful, it is critical that the 

p<:.rticipation of an advocate be stmctured in a manner thai maximizes assistance 

to the Courts and minimizes disruption to their work. An advocate appointed at 

the discretion of the Comis is likely to be belpful, whereas a standing advocate 

with independent authority to intervene ai will could actually be 

cpunterproducti ve. 
212 

Honorable Bob Goodlalte 

Page 3 

• Drastically expanding the FISC's easelond by assigning to it in excess of20,000 

administntive subpoena-type cases (Le., NSLs) per year - even with a 

corresponding injeGtion of resources and personnel- would iimdamentally 

transform the mliure afthe FlSC to the detriment of its cunent responsibilities. 

• It is important that the process for selection of FISC and Court of Review judges 

remain hoth expeditious ami fully confidential; the Chief Justice is uniquely 

positioned to select qualified judges for those Courts. 

I> In many cases, puhlic disclosure 0 t· Court decisions is not likely Lo enhance the 

public'S understanding ofFISA implementalion if the discussion of classitled 

information within those opinions is withheld. Releasing freestanding summaries 

of Court opinions is likely to promote confusion and misunderstanding. 

,. Care should he taken nol to place the Comts in an "oversight" role thaI exceeds 

their constitutional responsihility \0 decide cases atld controversies. 

Thank you for your previously expressed interest in the perspectives of the Judiciary on 

tl:ese mallers. Although these commCl>ls are not intended as expressions of support or opposition 

to patiiwlar introduced bills. I hope they are helpful to Congress in its deliberations on potential 

legislmion. We have atso provided these comments to the Administration. If we can be of 

hllihcr a"istallce to yon, please do not hesitate to contad me at 202-502-3000 or our Oftice of 

Legislative Affairs at 202-502-1700. 

Enclosnre 

Identical letter sent to: 

Sincerely, 

J4-.~#~- John D. BaleS 

Direetor 

Honorable John Cooyers, If. 

Honorable Patrick .I. Leahy 

Honorable Charles E. Grassley 

Honorable Dianne Feinstein 

lIonorable Saxby Chambliss 

Honorahle Mike Rogers 

IIonorahle C.A. Dutch Ruppcrsberger 
213 

THE WHITE HOUSE 

Office of the Press Secretary 

For Immediate Release January 17, 2014 

January 17, 2014 

PRESIDENTIAL POLICY DIRECTIVE/PPD-28 

SUBJECT: Signals Intelligence Activities 

The United States, like other nations, has gathered intelligence 

throughout its history to ensure that national security and 

foreign policy decisionmakers have access to timely, accurate, 

and insightful information. 

The collection of signals intelligence is necessary for the 

United States to advance its national security and foreign 

policy interests and to protect its citizens and the citizens of 

its allies and partners from harm. At the same time, signals 

intelligence activities and the possibility that such activities 

may be improperly disclosed to the public pose multiple risks. 

These include risks to: our relationships with other nations, 

including the cooperation we receive from other nations on law 

enforcement, counterterrorism, and other issues; our commercial, 

economic, and financial interests, including a potential loss of 

international trust in U.S. firms and the decreased willingness 

of other nations to participate in international data sharing, 

privacy, and regulatory regimes; the credibility of our 

commitment to an open, interoperable, and secure global 

Internet; and the protection of intelligence sources and 

methods. 

In addition, our signals intelligence activities must take into 

account that all persons should be treated with dignity and 

respect, regardless of their nationality or wherever they might 

reside, and that all persons have legitimate privacy interests 

in the handling of their personal information. 

In determining why, whether, when, and how the United States 

conducts signals intelligence activities, we must weigh all of 

these considerations in a context in which information and 

communications technologies are constantly changing. The 

evolution of technology has created a world where communications 

important to our national security and the communications all of 

us make as part of our daily lives are transmitted through the 

same channels. This presents new and diverse opportunities for, 

and challenges with respect to, the collection of intelligence -

and especially signals intelligence. The United States 

Intelligence Community (IC) has achieved remarkable success in 

developing enhanced capabilities to perform its signals 

intelligence mission in this rapidly changing world, and these 

enhanced capabilities are a major reason we have been able to 

adapt to a dynamic and challenging security environment.! The 

For the of thlS dlrectlve, the terms "Inteillgence Community" dnd 

"elements Inteillgence Community" shall have the same meanlng as they 

do in Executive Order 12333 of December 4, 1981, as amended (Executive Order 

12333) . 
214 

United states must preserve and continue to develop a robust and 

technologically advanced signals intelligence capability to 

protect our security and that of our partners and allies. Our 

signals intelligence capabilities must also be agile enough to 

enable us to focus on fleeting opportunities or emerging crises 

and to address not only the issues of today, but also the issues 

of tomorrow, which we may not be able to foresee. 

Advanced technologies can increase risks, as well as 

opportunities, however, and we must consider these risks when 

deploying our signals intelligence capabilities. The IC 

conducts signals intelligence activities with care and precision 

to ensure that its collection, retention, use, and dissemination 

of signals intelligence account for these risks. In light of 

the evolving technological and geopolitical environment, we must 

continue to ensure that our signals intelligence policies and 

practices appropriately take into account our alliances and 

other partnerships; the leadership role that the United states 

plays in upholding democratic principles and universal human 

rights; the increased globalization of trade, investment, and 

information flows; our commitment to an open, interoperable and 

secure global Internet; and the legitimate privacy and civil 

liberties concerns of U.S. citizens and citizens of other 

nations. 

Presidents have long directed the acquisition of foreign 

intelligence and counterintelligence" pursuant to their 

constitutional authority to conduct U.s. foreign relations and 

to fulfill their constitutional responsibilities as Commander in 

Chief and Chief Executive. They have also provided direction on 

the conduct of intelligence activities in furtherance of these 

authorities and responsibilities, as well as in execution of 

laws enacted by the Congress. Consistent with this historical 

practice, this directive articulates principles to guide why, 

whether, when, and how the United States conducts signals 

intelligence activities for authorized foreign intelligence and 

counterintelligence purposes.' 

Section 1. Principles Governing the Collection of Signals 

Intelligence. 

Signals intelligence collection shall be authorized and 

conducted consistent with the following principles: 

(a) The collection of signals intelligence shall be 

authorized by statute or Executive Order, proclamation, 

or other Presidential directive, and undertaken in 

For the purposes of this directive, the terms "foreign intelligence" and 

"counterlntelligence" shall have the same meaning as they have in Executlve 

Order 12333. Thus, "foreign intelligence" means "information relating to the 

capabilities, intentions, or activities of foreign governments or elements 

thereof, foreign organizations, foreign persons, or international 

terrorists, II and "counterlntelligence" means "informatlon gathered and 

activities conducted to identify, deceive, exploit, disrupt, or protect 

agalnst espionage, other lntelligence activitles, sabotage, or assassinatlons 

conducted for or on behalf of forelgn powers, organizatlons, or 

their agents, or international terrorist organizations or 

Executive Order 12333 further notes that II [iJ ntelligence includes foreign 

intelligence and counterintelligence." 

Unless otherwise specified, this directive shall apply to signals 

lntelligence activltles conducted In order to collect communlcations or 

information about communications, except that it shall not apply to signals 

lntelligence activltles undertaken to test or develop slgnals lnteillgence 

capabili ties. 
215 

accordance with the Constitution and applicable statutes, 

Executive Orders, proclamations, and Presidential 

directives. 

(b) Privacy and civil liberties shall be integral 

considerations in the planning of U.S. signals 

intelligence activities. The United states shall not 

collect signals intelligence for the purpose of 

suppressing or burdening criticism or dissent, or for 

disadvantaging persons based on their ethnicity, race, 

gender, sexual orientation, or religion. Signals 

intelligence shall be collected exclusively where there 

is a foreign intelligence or counterintelligence purpose 

to support national and departmental missions and not for 

any other purposes. 

(c) The collection of foreign private commercial information 

or trade secrets is authorized only to protect the 

national security of the United States or its partners 

and allies. It is not an authorized foreign intelligence 

or counterintelligence purpose to collect such 

information to afford a competitive advantage~ to U.S. 

companies and U.S. business sectors commercially. 

(d) Signals intelligence activities shall be as tailored as 

feasible. In determining whether to collect signals 

intelligence, the United States shall consider the 

availability of other information, including from 

diplomatic and public sources. Such appropriate and 

feasible alternatives to signals intelligence should be 

prioritized. 

Sec. 2. Limitations on the Use of Signals Intelligence 

Collected in Bulk. 

Locating new or emerging threats and other vital national 

security information is difficult, as such information is often 

hidden within the large and complex system of modern global 

communications. The United States must consequently collect 

signals intelligence in bulk' in certain circumstances in order 

to identify these threats. Routine communications and 

communications of national security interest increasingly 

transit the same networks, however, and the collection of 

signals intelligence in bulk may consequently result in the 

collection of information about persons whose activities are not 

of foreign intelligence or counterintelligence value. The 

United States will therefore impose new limits on its use of 

signals intelligence collected in bulk. These limits are 

intended to protect the privacy and civil liberties of all 

persons, whatever their nationality and regardless of where they 

might reside. 

In particular, when the United States collects nonpublicly 

available signals intelligence in bulk, it shall use that data 

4 Certdln economic purposes, such as ldentlfYlng trade or sanctlons violations 

or government influence or direction, shall not constitute competitive 

advantage. 

The limitations contained in this section do not apply to signals 

intelligence data that is temporarily acquired to facilitate targeted 

collectlon. References to slgnals lntelligence collected In "bulk" mean the 

authorized collection of large quantities of signals intelligence data which, 

due to technlcal or operational consideratlons, is acqulred wlthout the 

of discriminants (e. g., specific identifiers, selection terms, etc.). 
216 

only for the purposes of detecting and countering: (1) 

espionage and other threats and activities directed by foreign 

powers or their intelligence services against the United states 

and its interests; (2) threats to the United states and its 

interests from terrorism; (3) threats to the United states and 

its interests from the development, possession, proliferation, 

or use of weapons of mass destruction; (4) cybersecurity 

threats; (5) threats to U.S. or allied Armed Forces or other U.S 

or allied personnel; and (6) transnational criminal threats, 

including illicit finance and sanctions evasion related to the 

other purposes named in this section. In no event may signals 

intelligence collected in bulk be used for the purpose of 

suppressing or burdening criticism or dissent; disadvantaging 

persons based on their ethnicity, race, gender, sexual 

orientation, or religion; affording a competitive advantage to 

U.S. companies and U.S. business sectors commercially; or 

achieving any purpose other than those identified in this 

section. 

The Assistant to the President and National Security Advisor 

(APNSA), in consultation with the Director of National 

Intelligence (DNI), shall coordinate, on at least an annual 

basis, a review of the permissible uses of signals intelligence 

collected in bulk through the National Security Council 

Principals and Deputies Committee system identified in PPD-1 or 

any successor document. At the end of this review, I will be 

presented with recommended additions to or removals from the 

list of the permissible uses of signals intelligence collected 

in bulk. 

The DNI shall maintain a list of the permissible uses of signals 

intelligence collected in bulk. This list shall be updated as 

necessary and made publicly available to the maximum extent 

feasible, consistent with the national security. 

Sec. 3. Refining the Process for Collecting Signals 

Intelligence. 

U.S. intelligence collection activities present the potential 

for national security damage if improperly disclosed. Signals 

intelligence collection raises special concerns, given the 

opportunities and risks created by the constantly evolving 

technological and geopolitical environment; the unique nature of 

such collection and the inherent concerns raised when signals 

intelligence can only be collected in bulk; and the risk of 

damage to our national security interests and our law 

enforcement, intelligence-sharing, and diplomatic relationships 

should our capabilities or activities be compromised. It is, 

therefore, essential that national security policymakers 

consider carefully the value of signals intelligence activities 

in light of the risks entailed in conducting these activities. 

To enable this jUdgment, the heads of departments and agencies 

that participate in the policy processes for establishing 

signals intelligence priorities and requirements shall, on an 

annual basis, review any priorities or requirements identified 

by their departments or agencies and advise the DNI whether each 

should be maintained, with a copy of the advice provided to the 

APNSA. 

Additionally, the classified Annex to this directive, which 

supplements the existing policy process for reviewing signals 

intelligence activities, affirms that determinations about 

whether and how to conduct signals intelligence activities must 
217 

5 

carefully evaluate the benefits to 

the risks posed by those activities. 

national interests and 

Sec. 4. Safeguarding Personal Information Collected Through 

Signals Intelligence. 

All persons should be treated with dignity and respect, 

regardless of their nationality or wherever they might reside, 

and all persons have legitimate privacy interests in the 

handling of their personal information. u.S. signals 

intelligence activities must, therefore, include appropriate 

safeguards for the personal information of all individuals, 

regardless of the nationality of the individual to whom the 

information pertains or where that individual resides.' 

(a) Policies and Procedures. The DNI, in consultation with 

the Attorney General, shall ensure that all elements of 

the IC establish policies and procedures that apply the 

following principles for safeguarding personal 

information collected from signals intelligence 

activities. To the maximum extent feasible consistent 

with the national security, these policies and procedures 

are to be applied equally to the personal information of 

all persons, regardless of nationality:' 

i. Minimization. The sharing of intelligence that 

contains personal information is necessary to protect 

our national security and advance our foreign policy 

interests, as it enables the United States to 

coordinate activities across our government. At the 

same time, however, by setting appropriate limits on 

such sharing, the United States takes legitimate 

privacy concerns into account and decreases the risks 

that personal information will be misused or 

mishandled. Relatedly, the significance to our 

national security of intelligence is not always 

apparent upon an initial review of information: 

intelligence must be retained for a sufficient period 

of time for the IC to understand its relevance and use 

6 Section 3 of this directive, and the directive' s classified Annez, do not 

apply to (1) signals inteillgence actl Vl ties undertaken by or for the Federal 

Bureau of Investigatlon In support of predlcated investlgations other than 

of acquiring foreign intelligence; or (2) 

signals intelligence undertaken in support of military operations 

in an area of active hostilities, covert action, or human intelligence 

operations. 

Departments and agencles shall apply the term "personal information" 

manner that 15 conslstent for U. S. 

Accordingly, for the purposes of 

lnforrnatlon" shall cover the 

"information concerning U. S. 

12333. 

dnd non-U. S. persons. 

Order 

The collectlon, retentlon, and dlssernlnation of lnformatlon concerning 

"United States persons" is governed by multiple legal and policy 

requirements, such as those requlred by the Foreign Inteillgence Survelilance 

Act and E;:ecutive Order 12333. For the purposes of thlS directive, the term 

"United States person" shall have the same meaning as it does in Executive 

Order 12333. 

q The policies and procedures of affected elements of the Ie shall also be 

consistent with any additional Ie policies, standards, procedures, and 

the DNI, In coordinatlon wlth the Attorney General, the heads of Ie 

and the heads of any other departments containing such elements, 

may issue to lInplernent these princlples. ThlS directive lS not lntended to 

alter the rules applicable to U.S. persons in Executive Order 12333, the 

Foreign Intelligence Surveillance Act, or other applicable law. 
218 

it to meet our national security needs. However, 

long-term storage of personal information unnecessary 

to protect our national security is inefficient, 

unnecessary, and raises legitimate privacy concerns. 

Accordingly, Ie elements shall establish policies and 

procedures reasonably designed to minimize the 

dissemination and retention of personal information 

collected from signals intelligence activities. 

Dissemination: Personal information shall be 

disseminated only if the dissemination of comparable 

information concerning u.s. persons would be 

permitted under section 2.3 of Executive Order 

12333. 

• Retention: Personal information shall be retained 

only if the retention of comparable information 

concerning u.s. persons would be permitted under 

section 2.3 of Executive Order 12333 and shall be 

subject to the same retention periods as applied to 

comparable information concerning u.s. persons. 

Information for which no such determination has been 

made shall not be retained for more than 5 years, 

unless the DNI expressly determines that continued 

retention is in the national security interests of 

the United states. 

Additionally, within 180 days of the date of this 

directive, the DNI, in coordination with the 

Attorney General, the heads of other elements of the 

Ie, and the heads of departments and agencies 

containing other elements of the Ie, shall prepare a 

report evaluating possible additional dissemination 

and retention safeguards for personal information 

collected through signals intelligence, consistent 

with technical capabilities and operational needs. 

ii. Data Security and Access. When our national security 

and foreign policy needs require us to retain certain 

intelligence, it is vital that the United states take 

appropriate steps to ensure that any personal 

information contained within that intelligence is 

secure. Accordingly, personal information shall be 

processed and stored under conditions that provide 

adequate protection and prevent access by unauthorized 

persons, consistent with the applicable safeguards for 

sensitive information contained in relevant Executive 

Orders, proclamations, Presidential directives, 

Ie directives, and associated policies. Access to 

such personal information shall be limited to 

authorized personnel with a need to know the 

information to perform their mission, consistent with 

the personnel security requirements of relevant 

Executive Orders, Ie directives, and associated 

policies. Such personnel will be provided appropriate 

and adequate training in the principles set forth in 

this directive. These persons may access and use the 

information consistent with applicable laws and 

Executive Orders and the principles of this directive; 

personal information for which no determination has 

been made that it can be permissibly disseminated or 

retained under section 41a) Ii) of this directive shall 

be accessed only in order to make such determinations 
219 

(or to conduct authorized administrative, security, 

and oversight functions) . 

iii. Data Quality. Ie elements strive to provide national 

security policymakers with timely, accurate, and 

insightful intelligence, and inaccurate records and 

reporting can not only undermine our national security 

interests, but also can result in the collection or 

analysis of information relating to persons whose 

activities are not of foreign intelligence or 

counterintelligence value. Accordingly, personal 

information shall be included in intelligence products 

only as consistent with applicable Ie standards for 

accuracy and objectivity, as set forth in relevant 

Ie directives. Moreover, while Ie elements should 

apply the Ie Analytic Standards as a whole, particular 

care should be taken to apply standards relating to 

the quality and reliability of the information, 

consideration of alternative sources of information 

and interpretations of data, and objectivity in 

performing analysis. 

iv. Oversight. The Ie has long recognized that effective 

oversight is necessary to ensure that we are 

protecting our national security in a manner 

consistent with our interests and values. 

Accordingly, the policies and procedures of Ie 

elements, and departments and agencies containing Ie 

elements, shall include appropriate measures to 

facilitate oversight over the implementation of 

safeguards protecting personal information, to include 

periodic aUditing against the standards required by 

this section. 

The policies and procedures shall also recognize and 

facilitate the performance of oversight by the 

Inspectors General of Ie elements, and departments and 

agencies containing Ie elements, and other relevant 

oversight entities, as appropriate and consistent with 

their responsibilities. When a significant compliance 

issue occurs involving personal information of any 

person, regardless of nationality, collected as a 

result of signals intelligence activities, the issue 

shall, in addition to any existing reporting 

requirements, be reported promptly to the DNI, who 

shall determine what, if any, corrective actions are 

necessary. If the issue involves a non-United States 

person, the DNI, in consultation with the Secretary of 

State and the head of the notifying department or 

agency, shall determine whether steps should be taken 

to notify the relevant foreign government, consistent 

with the protection of sources and methods and of U.S. 

personnel. 

(b) Update and Publication. Within 1 year of the date of 

this directive, Ie elements shall update or issue new 

policies and procedures as necessary to implement 

section 4 of this directive, in coordination with the 

DNI. To enhance public understanding of, and promote 

public trust in, the safeguards in place to protect 

personal information, these updated or newly issued 

policies and procedures shall be publicly released 

to the maximum extent possible, consistent with 

classification requirements. 
220 

(c) Privacy and Civil Liberties Policy Official. To help 

ensure that the legitimate privacy interests all people 

share related to the handling of their personal 

information are appropriately considered in light of the 

principles in this section, the APNSA, the Director of 

the Office of Management and Budget (OMB) , and the 

Director of the Office of Science and Technology Policy 

(OSTP) shall identify one or more senior officials who 

will be responsible for working with the DNI, the 

Attorney General, the heads of other elements of the IC, 

and the heads of departments and agencies containing 

other elements of the IC, as appropriate, as they develop 

the policies and procedures called for in this section. 

(d) Coordinator for International Diplomacy. The Secretary 

of State shall identify a senior official within the 

Department of State to coordinate with the responsible 

departments and agencies the United States Government's 

diplomatic and foreign policy efforts related to 

international information technology issues and to serve 

as a point of contact for foreign governments who wish to 

raise concerns regarding signals intelligence activities 

conducted by the United States. 

Sec. 5. Reports. 

(a) Within 180 days of the date of this directive, the DNI 

shall provide a status report that updates me on the 

progress of the IC's implementation of section 4 of this 

directive. 

(b) The Privacy and Civil Liberties Oversight Board is 

encouraged to provide me with a report that assesses the 

implementation of any matters contained within this 

directive that fall within its mandate. 

(c) Within 120 days of the date of this directive, the 

President's Intelligence Advisory Board shall provide 

me with a report identifying options for assessing 

the distinction between metadata and other types of 

information, and for replacing the "need-to-share" or 

"need-to-know" models for classified information sharing 

with a Work-Related Access model. 

(d) Within 1 year of the date of this directive, the DNI, in 

coordination with the heads of relevant elements of the 

IC and OSTP, shall provide me with a report assessing the 

feasibility of creating software that would allow the IC 

more easily to conduct targeted information acquisition 

rather than bulk collection. 

Sec. 6. General Provisions. 

(a) Nothing in this directive shall be construed to prevent 

me from exercising my constitutional authority, including 

as Commander in Chief, Chief Executive, and in the 

conduct of foreign affairs, as well as my statutory 

authority. Consistent with this principle, a recipient 

of this directive may at any time recommend to me, 

through the APNSA, a change to the policies and 

procedures contained in this directive. 
221 

Æ 

9 

(b) Nothing in this directive shall be construed to 

impair or otherwise affect the authority or 

responsibility granted by law to a United states 

Government department or agency, or the head thereof, 

or the functions of the Director of OMB relating to 

budgetary, administrative, or legislative proposals. 

This directive is intended to supplement existing 

processes or procedures for reviewing foreign 

intelligence or counterintelligence activities and should 

not be read to supersede such processes and procedures 

unless explicitly stated. 

(c) This directive shall be implemented consistent with 

applicable U.s. law and subject to the availability of 

appropriations. 

(d) This directive is not intended to, and does not, create 

any right or benefit, substantive or procedural, 

enforceable at law or in equity by any party against the 

United states, its departments, agencies, or entities, 

its officers, employees, or agents, or any other person. 

# # #