Transcripts For CSPAN3 Hearing On USA Freedom Act Reauthorization 20240713

The 2015 usa freedom act banned bulk collection of private records. The Senate Judiciary committee recently held a hearing on reauthorizing the legislation. Among the witnesses were officials from the fbi, the Justice Department and the nsa. This is two hours. 2015. We have two panels, basically, four parts of the act. I want the panel to tell us the good, the bad and the ugly why we need these four people, why we need to reauthorize the program n your view, what happens if we dont. Would you accept any changes . What would those changes be. And other than recite your testimony, im very interested in hearing from the National Security perspective how the usa freedom act of 2015 is still relevant in 2019 and beyond and the tools available, how theyre relevant to the fight were still in. I would end with this. Baghdadi is dead but the cause lives. The effort to penetrate our country is ongoing every day. Terrorists groups with a lot of different names are trying to come here to do us harm to hurt americans abroad and the war is far from over. I wish it were, but it is not. There is no air force to shoot down, theres no navy to sink, theres no capital to conquer. This is ideology that must be combatted and those that embrace this ideology, embrace death. The only way you protect america is to hit them before they hit you. Stop them over there before they get here. And the only way you can do that is to find out what theyre up to using acceptable tools within our constitutional democracy. With that ill turn it over to senator feinstein. Thanks, mr. Chairman. Ill try not to be redundant but this hearing, i think, is important because it provides an opportunities to take a good look at provisions of the usa freedom act that are set to expire at the end of this year, on december 15. These are section 215, otherwise known as the Business Record provision as well as roving wiretap Congress Prohibited this bulk collection in the 2015 usa freedom act introduced by senators leahy and lee. Now instead of bulk collection by the government, records remain with phone providers and are searchable only with a fisa order for a, quote, specific selection term, end quote. Thats generally a specific phone number or address. This call detail record, we call a cdr, is meant to make sure its sufficiently targeted, but in june 2015 nsa publicly announced that due to technical irregularities, the cdr program it had received data that it was not legally authorized to receive. Moreover, the agency could no longer distinguish between records that were obtained lawfully and those that were obtained unlawfully. As a result, nsa announced it would delete all call detail records acquired over the last three years. In august the director of National Intelligence, dan coates, confirmed nsa had suspended the cdr program indefinitely due to its lack of intelligence valley as well as its cost and compliance issues. Despite this the administration is asking congress to permanently authorize this program. Now, its really not clear to me why a program with limited intelligence value and clear compliance problems should be reauthorized. And unless there is good reason to believe that it should, i do not believe we should reauthorize it. Thank you very much, mr. Chairman. Thank you, senator feinstein. First witness is brad wiegmann, michael orlando, Deputy Assistant director for the Counterterrorism Division and susan morgan from the National Security agency. Mr. Wiegmann. Chairman graham, Ranking Member feinstein, members of the committee, thank you for the opportunity to testify today about four provisions about fisa. These are authorities that will expire at the end of this year unless theyre reauthorized by congress. The administration strongly supports permanent reauthorization of these provisions. Three of the thoeshgts the roving wiretap, Business Records and lone wolf provisions have been part of fisa for well over a decade. Theyve been renewed by congress multiple times. These same authorities were reauthorized multiple times between 2005 and 2012 and each renewal gained bipartisan support. Today im going to give you a brief overview of three of the legal authorities and then ill turn it over to my colleagues from fbi to determine how theyve been used in practice and theyre value to National Security. Then my colleague from the nsa is going to address the fourth authority, the cdr authority that senator feinstein described under which nsa can collecting metadata. First, the roving wiretap authority. This enables the government to continue surveilling a fisa Court Approved National Security target when the target takes affirmative steps to thwart the surveillance. They repeatedly and rapidly change communication broadwayers to evade government monitoring. Roving provision allows us to continue surveying without going back to the court for a new order. The government has used this in a relatively small number much cases each year. They tend to involve highly trained foreign Intelligence Officers operating within the United States who use these countersurveillance techniques or other important investigative targets. The wiretap act on the criminal side has for decades contained a similar roving provision for ordinary criminal investigations of, lets say, drug dealer or organized crime dealer who might also take steps to thwart surveillance. Second, the Business Records authority. This allows the government to apply to the fisa court for an order to collect records, papers and other documents relevant to an authorized National Security investigation. It allows the government to obtain many of the same type of records it can obtain through a grand jury subpoena in an ordinary criminal case. For example, it can be used to obtain drivers license records, hotel records, car rental records, shipping records and the like. In most cases these are records the government obts without any court order. A fisa Business Record is usually sought because they use less secure criminal authorities or there may be no criminal investigation under be way and something that is purely an intelligence matter. This authority has been used several dozen times a year on average over the last few years. The Business Records provision is also the mechanism for the targeted collection of cdrs from telecommunication provider. My colleague from nsa will discuss in a few minutes this provision provides a way for the government to identify telephone contacts of suspected terrorists who may be within the United States. Finally, we have the lone wolf provision. This enables the government to surveil it also applies to foreign persons engaged in international proliferation of weapons of mass destructions. The government has want had occasion to use the lone wolf authority to date but it fills an important gap in the governments collection capabilities where isolated actors are concerned. It allows for the surveillance of a foreign terrorist who might be inspired by a Foreign Terrorist Group but is not technically an agent of that group. For example, it would allow surveillance of a foreign person who has selfradicalized of a Foreign Organization on the internet or a known International Terrorist who severs connections with a torist groups. Any of the three requires approval from the fisa court. Each of them also requires strict rules governing how the government would handle any information contained concerning u. S. Persons. And each is subject to oversight. As ive said, each has been renewed by congress multiple times in the past. With that ill stop and turn it over to my cleelgz. Good morning, chairman graham, ramging member feinstein and members of the committee. Thank you for the opportunity to testify about important provisions of the usa freedom act that will expire unless reauthorized by congress. These provisions have been integral to the fbis success in many National Security investigations. I will likely not be able to get into specific examples of our use of these but i will do my best to provide you with hypothetical situations that demonstrate the critical roles these tools play in National Security investigations. I have seen the new england of these provisions in my time as counterintelligence agents. And im looking forward to answering your questions. New technology has allowed actors to work increasingly in the shadows. Today we have nearly universal access to the internet and anyone with a cell phone can view and become radicalized by extremist contexts. Our forces no longer have to travel to other countries and interact with other extremists. Instead they can do this with from their home. Because of this theres a shift towards individuals acting alone with multiple ideologies and without clear ties to any one foreign adversary. Our window for identification and disruption is shrinking. As these threats have evolved, congress has helped us ensure we are prepared to the appropriate tools to continue to protect the u. S. And its interests. Im here today to talk about the expiring provisions which the fbi uses with fisa quort approved oversight. As my colleague from the department of justice explained, we use the Business Records provision to obtain records for other tangible things for use in a National Security investigation. We often describe the Business Records provision as a Building Block authority. That means we use it in early investigation to build our case against National Security threats. Its important to note response Business Records do not contain content. The information we get from a Business Records order often helps us meet the legal threshold needed in order to get a report from the fisa court for a wiretap. For example, once we receive the Business Record returns, if the suspected terrorist is communicating with a known bomb maker, we would have relevant information to help establish probable cause for a wiretap. Similarly if we receive Business Records showing the terrorist is buying bomb materials like fertilizer and a large amount of ball baergz that information can help us establish probable cause. The roving authority detailed in the usa freedom act is also an important provision that counteracts efforts by various National Security threats, including terrorists and Intelligence Officers to avoid courtauthorized surveillance. These individuals often employ tactics such as using multiple burner phones or creating multiple email accounts we use this authority regularly in our National Security investigations as a tool to missing critical intelligence that would be lost if our ability to initiate surveillance was a fisa warrant on each new facility. The last authority is the lone wolf provision. Even though its not yet been used we believe its critical. Homegrown violent extremists are among the top threat to the homeland. These individuals are, by definition, not in direct collaboration with foreign terrorist organizations. Homegrown violent extremists are often selfradicalized online with propaganda and motivated to attack with individuals associated with a foreign terrorist organization. Rest assured, the lone wolf provision is narrowly tailored as it is only for nonu. S. Persons. These are critical important in our fight to keep the American Public safe. Thank you for the opportunity to appear before you today. Im happy to answer any questions related to these authorities. Chairman, Ranking Member, distinguishes members of the committee, thank you for the opportunity to testify today about the National Security agencys call detail Records Program. The authority for the call detail records, or cdr program, is among the important provisions of the Foreign Intelligence Surveillance Act that will expire at the end of the year, this year, unless reauthorized by congress. Congress added this authority to the Foreign Intelligence Surveillance Act four years ago in the usa freedom act as one of several significant reforms designed to enhance privacy and Civil Liberties. It replaced nsas bulk telephany with a new authority where the bulk metadata would remain with the teleservice providers. As this committee 2015 report described, the cdr authority provides a, quote, narrowly tailored mechanism for the targeted collection of telephone metadata for possible connections between foreign powers or agents of foreign powers and others as part of an authorized investigation to protect against International Terrorism, end quote. Critically, the provision authorizes the collection of certain metadata associated with telephone calls such as the originating or terminating telephone number and the date and time of a call, but does not authorize collecting the content of any communication, the name, address or Financial Information of a subscriber or customer or locational information. As this committee is aware, the nsa recently discontinued the cdr program and deleted the records acquired under the cdr authority after balancing the prament every programs intelligence value, associated costs and compliance and data integrity concerns. Nsas decision to suspend the cdr program does not mean that congress should allow the cdr authority to expire. Rather, that decision shows that the executive branch is a responsible steward of the Authority Congress affords it. As Technology Change cans, our adversaries trade craft and communication habits continue to evolve and adapt. In light of this dynamic environment, nsa supports reauthorization of the cdr provision so that the government will retain this potentially valuable tool should it prove useful in the future. Thank you again for the opportunity to testify today. I look forward to your questions. Senator leahy, you would like to make an Opening Statement . I would. I appreciate that. I was proud to join with senator lee in requesting this hearing. I think i speak for both senator lee and myself. We thank you for holding the hearing, mr. Chairman. Im proud of my successful efforts in 2015 to pass usa freedom act. This is the first Major Overhaul of government surveillance powers in decades. It added significant privacy protections for the American People. Now, though, we didnt look at it, see how it works. We have the opportunity to learn from it and respond to whats happened over the past four years. What have we learned . We know the government issued only 14 cdr program orders in 2018, but they collect over 434 million records relating to over 19 million phone calls. Did all that with their 14 orders. We know two incidence of significant overcollection. In fact, resulted in the nsa purging all of their records and ultimately decommissioning the program. We know director dan coates acknowledged, even as he requested permanent reauthorization of all the authorities granted in the usa freedom, that the cdrs programs relative intelligence value was negligible. Given all that, what dont we know . Unfortunately, quite a bit. Were only a month away from these authorities expiring. We dont know what caused the massive overcollection. What companies were responsible or why it was not feasible for the nsa to identify or isolate the improperly produced data. Its not as though senator lee and i have not tried to learn the answers to these questions. We tried to make sure that this was not a republican or democrat issue. This was an issue the United States care about. Almost a year ago in december 2018, senator lee and i wrote a letter to the dni and Justice Department asking these and other questions. So, almost seven months later in july we wrote again. Unfortunately, we have yet to get a substantive response to either of these letters. Despite this, despite not answering our question, the government is now requesting permanent reauthorization of all the authorities granted in the usa freedom, including the cdr program. They argue that, well, it might, eventually be useful in technology might evolve to the point they could collect metadata in compliance with the law. We might be able to obey the law. Let me be clear. Maybe some day it will be of some use. Hopefully well develop technologies to not again violate the law. Well, thats not appropriate justifications to reauthorization these powers. If we reauthorize maybe we could actually follow the law. If at some point in the future the technology develops to allow for metadata collection, it is appropriately limited, that follows the rules, thats fair, come back to congress and let us revisit the question. Until that time theres no reason to reauthorize the cdr program. Well be legislating in the dark. So, mr. Chairman, i thank you for holding this hearing. I look forward to the testimony, but lets lets not say lets not pass a wish. Lets pass substantive legislation. I thank you. I thank senator lee who has worked extremely hard on this. Thank you. Ms. Morgan, why havent you answered their letters . Sir, my understanding did you get the letters . Sir, my understanding is that the letters were addressed to doj and ogni so i would sorry. Wrong person. I can address that. Who got the letters . They were directed to the attorney general. Let me say right up front, my apologies for not being able to respond to the letters thus far. My understanding is they were held up originally so that the administration could develop a position on whether to seek reauthorization of these authorities. That happened in august of this year so there was a significant portion of the delay due to the administration developing a position on this. We have since worked on the letters 11 months to develop my apolys. This is november. Absolutely. Let me tell you you had from august to november. So, we now have a draft response to the letters. Youll have it this week. I was hoping i could bring it to the hearing this week but youll have it this week without fail. Were here to answer your questions today. Im happy to address the questions raised in the letter. All i can do is apologize for not getting them an answer to the letter this week. Absolutely. Thats progress. I know its not my turn. I just want to interject here. If it takes 11 months to get a response to our letter, and if it takes nearly, you know, more than six months to even get the policy out, that itself didnt answer the questions, which was apparently the Condition Precedent for you to answer the letter, you still had many months between the issuance and today. Maybe the only way for us to do this is to have monthly hearings to stay in contact on this. I say that in dead seriousness. Were not messing around. These are the privacy rights and the Constitutional Rights of the American People. We represent them. And we dont appreciate nearly a oneyear delay that is not warranted. And it adds deeply to my suspicion. I appreciate senator leahy working with me on this. Mr. Chairman, i appreciate you working helping us get this hearing which i hope will be a monthly is exercise from now on. Theres no real good reason not to answer letters from two senators who authorized the legislation. Having said that, the lone wolf provision, what do we lose if it goes away in real world terms . Sir, this past year we arrested approximately 100 terrorism suspects, International Terrorism suspects. Were seeing more of the homegrown violent extremists. These are individuals not taking direction from weve never actually used this provision, is that correct . To date weve been able to either disrupt them without it or been able to make could you speak up a little bit . Closer to the mic. Directly into the mic. Apologize. To date we have not had to use it because weve been what do you lose if you dont have it . The threat is evolving with the more we may have a need for it in the future. These people fall into space where you cant get a warrant but somethings going on. Yes. And with the way the threats are evolving theres going to be more of that or less . More are being selfradicalized and taking direction. Therefore, the potential for us to use that tool will probably increase in the future. So this is really driven by the selfradicalized nonu. S. Citizen, right . Nonu. S. Citizens. The foreign terrorist organizations are also involved in their capabilities and seek to use clean operatives we may not be the roving surveillance part makes sense. If they change technology, you dont have to start all over again . The roving surveillance is when they change technologies. Im good on that. The Business Records thing, tell us how thats used and what would you lose if it went away . We use it as mostly a Building Block tool. For example, when a homegrown violent extremists mobilizes sometimes they seek weapons, kniv knives. It allows us to get records. If we lose that authority, the tangible thing is reduced down to just a few items we can seek and the stand, the evidentiary standard changes to show theyre directly related to a foreign power. Why should we reauthorize it if you shut it down . Sir, thank you for your question. As we mentioned earlier, as the committee mention the earlier, the authority that was passed was carefully balanced between private and Civil Liberties and counterterrorism context. We used this authority responsibly and have been transparent with all three branches of government in terms of how weve used this authority and the challenges that we faced. The authorities granted to us by the congress are really a set of tools in a tool box that we can use and leverage in different ways is this a technological problem you have . Im sorry, sir . You shut the program down for a reason. Sir, we shut the program down because when we looked at the value we were getting at this didnt you have a he technological problem . Didnt you say the technology is not where it needs to be . Sir, the challenges we faced with this program its just odd you shut down a program because the value of it is less than the cost. And you want us to reauthorize it. Sir, when we look at our programs, we try to look at them in the context of whats available to us in terms of the different tools in our tool box. When we look at this program, there was value there but it didnt outweigh the cost. We felt the responsible thing to do was to stop using the program how is it responsible for us to reauthorize it . I think its responsible for you to consider reauthorizing it because one year from now, two years from now, three years from now, i cant predict what the dynamic International Terrorism environment is going to look like and i cant predict what the Telecommunications Landscape is going to look like. We could find ourselves in a situation where this particular tool in our tool box we would want to have the agility to use it should it be value aable mov forward. Senator feinstein. Yes. Let me just carry this out. The call detail program, thats the successor under 215 was recently shut down by nsa due to lack of intelligence, value, cost and technical problems. Can nsa provide an example of information obtained from the cdr program that resulted in the discovery of a previously unknown terrorist plot . Maam, thank you for your question. Im certainly the answer is yes or no, essentially. Maam, in an open setting, i cant answer that in a yes or no context due to classified im not asking you for any detail. All im asking is, has there been a result in the discovery of a previously unknown terrorist plot . Yes or no . Maam, i apologize, but i cant give a yes or no answer to that in im happy to at your convenience in a closed setting give you any details you need to make in Foreign Policy well, you want the program to be reauthorized and ive weeye the Intelligence Committee a long time. We have to have the reason to reauthorize. Yes, maam. I believe the reason is, is there a product . Maam, i believe the reason to reauthorize is when we look at the International Terrorist threat it evolves over time, as does technology. We would like to have the agility in place so that if this authority could provide us value in a different context, different way within the confines of the law that we would have that tool on the shelf for our use. Can you give any specific example of its help . Maam n an open, unclassified setting no, no, come on. Does it help . Maam, there has been value to the program, most certainly, over the past whats that value . Sir, to speak to specifics on that value, id have to do that in a classified session, which im more than willing to do at your convenience. That im just saying, look, thats inadequate. Ive been on the Intelligence Committee for 26 years now, but were in a public arena. I understand that. But if you cant give us any indication of specific value of the program, theres no reason for us to reauthorize it. And were not asking for any specific disclosures here, as i understand it. Were simply asking, have we ever won anything through this . Mr. Chairman we cant answer that question in public. Thats a really tough position. Theres a skiff down the hall, 100 yards from there. Ill go there right now. Im in a different position substantively than senators leahy and lee. Im a defender of your program. But i agree, if you cant answer this question, why dont we go to a skiff right now . Lets get through the other parts and then well have a classified hearing. Thats a better idea. Dont do it now. Four years ago the thennsa deputile director heres the good news he said there was only one occasion. This was an open session. Only one occasion when the phone records collection was uniquely valuable. One. Well, well an open session. Well go to a classified session. Go ahead, senator feinstein. So, you cant provide an example of information obtained from the cdr program. If Congress Reauthorizes section 215s Business Records provision but ends the cdr program, the call detail record, will the Administration Support that . Maam, as you know, im here representing nsa. I cant speak i dont make policy decisions for the administration so id have to defer to the administration. Next question. Nsa received three years worth of americans phone records that it was not legally authorized to receive. Moreover, the cdr program was shut down for failure to produce useful intelligence. Yet nsa is requesting reauthorization. Can you explain that position . Maam, id like to clarify. Its entirely possible im not being clear and i apologize. There was value in the program when it was substantiated. We did obtain value from an intelligence perspective. However, when we weigh that against the cost, we made the decision that the best step to take was to shut down the program. There have been issues with some of the data we received from the different telecommunication providers. I can go into those issues in detail. Have the compliance problems been solved . And youre on the record. Maam, the compliance problems associated with this particular promise have been solved as the program is shut down. So, the program was shut down. Yes, maam. Is that correct . Yes, maam. And what was the reason is everybody good with the other three provisions . If they are, well go to the classified thing. What was the reason the program was shut down . Maam, the reason the program was shut down is we evaluated the program in terms it of what value we were receiving from the program, and there was some value there. When we weigh that against the cost of the program, the resourced costs and we also took a look at the issues we were facing from a data and compliance, we take into account what our other authorities bring to the counterterrorism fight and we ultimately made the decision in that context to stop using the program. Okay. Thank you. Why this will be for any three of you. Why is the clean reauthorization preferable to appealing or amending the most controversial provisions of the law . I suppose concentrate on amending the most controversial provisions of the law. Sir, im assuming were the most controversial provision of the law. So, what i would say is that we support the Administration Position of a clean reauthorization. And one reason for that is so we have agility by having tools in our tool box. The counterterrorism fight, as, you know, im sure youre all awa aware, it involves over time. If we come across a situation where we think this authority can give us a tool that can help us see the overall International Terrorism picture, we want to be able to move as quickly as we can to try to alert that authority and thats why were supportive of a clean reauthorization. If i could speak to the other authorities. Go ahead. From my perspective at doj, i think this is the fourth time the other authorities have been reauthorized. That doesnt count some other ones that were done. This is a decision for the committee and the congress but eventually the idea of a sunset is that you become comfortable with the basic authorities. At this point since theyve been reauthorized so many times over the last 20 years, our view was, at some point the congress some point, the congress should decide. But we defer to the committee and the congress but these have been b reauthorized, ordinary eces of these on at least four occasions. So say you cant legislate everything in detail, but you folk have heard about the privacy and Civil Liberties concerns. What are you doing to address those concerns on a daily basis . As they come up . Because thats what weve got to be satisfied on. I dont know what the privacy concerns are with take the roving example. I think straightforward authority. Its routine. I dont think there are significant continue vroversies associated with that, so it shouldnt be a problem. Likewise the ordinary uses, you can get with a subpoena and ordinary criminal case. We have more process in a National Security case significantly than going to the court. All the oversight thats required. So i dont think the ordinary uses of these authorities should raise similar concerns. Is the law effective in carrying out the intent and use of powers of the authorities being considered today . If not, explain what changes are necessary. We dont think changes are necessary. We think the authorities are appropriate as they stand today. I yield back my time. Including the cdr thing . Ill let nsa address the cdr program. Whos next . Senator leahy . Senator whitehouse . I dont have a list of yall. Id like to thank the chair ranking and the witnesses for your testimony and your service to our country. This is a critical opportunity for us to discuss the best ways to balance our responsibility for keeping americans safe while protecting the core protections of our constitution. Our Civil Liberties that are fundamental to our democracy. Miss morgan in your testimony, you emphasized the nsas decision to discontinue the cer program is is based on i think im quoting balancing the programs intelligence value, associated costs and integrity concerns. What metrics does the nsa use to determine a programs intelligence value broadly . Sir, thank you for your question. A number of factors that we take into consideration when were looking at the value of a particular program. So one would be are we issuing any foreign intelligence reports that contain any information from this particular program. As the committee likely knows and gets intelligence requirements from different interagency problems and did we find intelligence that was valuable enough for us to take the time. And did you . Yes, sir. So, the characterization of this program is having negative legible value given, against massive overcollection. You had argued that with the metric, there was value. Yes, sir. I would say theres value. The other thing that might be helpful to understand is when were finding the fight, were using different authorities and trying to connect those dots. Its entirely certain that you might have information from one particular authority that in and of itself, its not binary, that now i suddenly have a counterterrorism outcome. Could be that youre building upon that, building upon that and weeks, months, even years later, you have an outcome, but you have to trace it back, oh that piece of information did have a contribution. So you have to consider it as part of a broader picture. You discovered that you improperly collected records. Is it correct they deleted all the records . They deleted the records we received from the providers. We were authorized to obtain records that underpinned reports. Were authorized to retain that information. Is there any indication that the deletion of these efforts has interfered with our counterterrorism efforts . Has there been a loss in intelligence value . Sir, i think thats something impossible to answer. Every day were making trade offs. When i was an analyst, i would say should i look at this piece of information, this piece of information, because you cant look at everything. So theres no real way to know if ive lost a piece of information that could have been valuable. One of the arguments being made is that the Communications Landscape is changing and its tough to predict where technology is going. And that theres new types of digital communication. Do records from encrypted messages service fall under the scope of Business Records or cdr authority . Mr. Wiegmann, miss morgan. The question is whether you can get things that are encrypted . Is that a the question . Yes. So Business Records authority could not be used to get communications content. Encrypted or unencrypted. Youd need a full content. Sir, under the program that were currently not operate, were only authorized to get met data, things like phone and contact with number at this date and time. Were not authorized to get content, any encrypted messages. But are you able to get records about encriminated messages . So, ill say my answer and im going to look to mr. Wiegmann to correct me. My understanding is that in the law, it says specific election term is what were authorized to seek permission from the fisa court to information related to a specific selection term so if there was a special selection term and there were records again responsive to that, i believe wed be authorized to get that. I think thats right, also true for the ordinary Business Records authority if we were to get whats called Electronic Communications transactional record, one of the uses we have for 215. That information is typically not encrypted. So the message itself might be, but the meta data, whos communicating with whom, whats wha the date was, we could get that type of information. Its not encrypted. Let me ask you a last question about the privacy and Civil Liberties oversight board. Theyve made a number of suggestions in the fisk including expanding the types of cases they can participate in. Improving access to materials and being able to trigger appeals. If implemented, what would the impact of those changes be . So im not familiar with the recommendations. Is it recent . I believe so. I have not seen that. You mentioned one was appeals . Essentially broadening their capacity to engage. I think the system now is working well. That provide value, benefit to the court. Its up to the court to decide which i think is appropriate. So the court can decide would it benefit me to hear a different position is this a routine matter where its not necessary so i think leaving that with a court is a good idea. On appeals, we thought about this in 2015 when we worked with members of the committee could the amicus file and appeal. There were constitutional issues with doing that. Theyre not party to the case so they wouldnt have standing under article 3 to pursue an appeal themselves. So e we came up with a certification mechanism where by the court could certify an issue. Obviously the amicus could suggest to the court that certifying matter on appeal is appropriate so its kind of similar. They could have that mechanism, but we think there would be constitutional issues with having an appeal right that stood in the amicus. I dont know if that answers your questions. Let me follow up with you if i can. I recognize im out of time, but i think this is a proceedal improvement that might be worth our considering. Senator cornyn. Miss morgan, youre having to answer some tough questions here today. You dont make this policy, do you . No, sir, we do not set policy. I dont know what you all did to deserve the ritual flogging that you get at hearings like this, because i know none of you are the policymakers, but let me just ask. To me, it sounds to me like the oversight provisions in the law actually worked in the case of these call records. First of all, the Congress Writes the surveillance act which provides the authorization but then the Intelligence Community has its own internal operating rules to try to comply with the law that the congress has written. And then you have to apply to the foreign Intelligence Surveillance court. There is a, a judicial oversight and then theres the congressional committees. The Intelligence Committees in the house and senate in particular that have oversight. Did i get that correct . Yes, sir. And additionally, we have oversight from the executive branch in the form of doj and office of the director of National Intelligence. Internal, we have a robust program. We have inspector general. We have a Civil Liberties and prooif fsy officer who reports to the director of the National Security agency. Well my point is this is not a case where the fisa court caught you or congress through its oversight caught the nsa doing something it shouldnt do. This is where your own internal procedures identified a b problem. Is that correct . Yes, sir. The challenges we face when we receive records that had irregularities in them were selfidentified and reported to the overseers in all three branches of government by the National Security agency. We took methodical steps to reduce those issues to revolve them. And again just to rekha pitch late, this is foreign intelligence, correct . Sir, this program is focused on International Terrorism. Trying to get insight into those activities and putting together pieces of the puzzle to help protect the country against International Terrorist activities. And the meta data, just to go through this again because i think its misunderstood. Its not content . Correct. When we face those challenges and issues, we do not receive any content, any locational information, subscriber communications, voice communication, messages of any kind. Its things like phone number a and contact with phone number b at this date and time. And i know this sounds almost trite because we say it over and over and over again. We talk about connecting the dots, but thats what were talk uing about here, isnt it . Absolutely, sir. And the International Terrorism fight, youre dealing with people using different technologies, communicating in differeways, trying to hide the communications and you want to have the different tools in the tool box and you want to have that agility because you dont know what you might face in the future. Can you tell me whether the, is the nsa undertaking the efforts to deal with the technical problems that it encountered with the cdr program or have you put that just suspended that entire ly. Sir, weve suspended that entirely. Weve taken down the infrastructure that supported program as it was substantiated. I think there are legitimate questions on whether congress ought to reauthorize it. I hope, mr. Chairman, we go ahead and we authorize the other three pieces of this, which as weve heard from the attorney general and director rey with essential tool, counterterrorism tools in this instance. But i think it would be helpful to have some additional classified testimony with regard the to examples where these tools have been useful. Things that you cannot talk about here in public. And we certainly understand that. I just dont want us to be in a position that might develop into sa tool in this continue iing changes in the strategy and tactics of terrorists and then have a hearing like this after some americans have been kill and wonder why didnt the nsa, the fbi, the department of justice do more and congress is not particularly nimble when it comes to reauthorizing the new law so i think we ought to be very careful about letting this one lapse. Very good suggestion. Senator lee. Thank you, mr. Chairman. When you spoke to the house Judiciary Committee this year, you declined to answer whether the program had materially contributed to preventing a terrorist attack. You stated and correct me if i have this wrong wrong, but it was not an appropriate measure of the programs value. Well, i dont find that answer sufficient. Were debating the freedom usa four years ago, then Deputy Director publicly testified, publicly, theres only one occasion when the phone records collection was uniquely valueabe in a counterterrorism case. Four connection. Now id like to have at least as much transparency as we had four years ago. Since passage of the usa freedom act on how many occasions, not asking you what they were, on how many occasions was the cdr program materially significant in preventing a terrorist attack . Five, ten, 25, zero. What . Sir, if i may just clarify something that i mention eed to the house Judiciary Committee. What i thought i said and i dont have a transcript in front of me, is that prevention of a terrorist attack is but one metric of a programs value. One factor. So just to clarify, not saying thats not a valuable fakih r tor, just saying its only one measure. I just want to clarify. Thats why i asked the question. On how many occasions has the cdr program materially significant in preventing a terrorist attack if any . Sir, again, i apologize. I recognize this must be incredibly frustrating. At the time of this discussion were having right now, that information is classified and im unable to divulge. Not even the number . Sir, im not able to go into those details in an open session. I apologize. Can you say whether its more than zero . Sir, im really uncomfortable in terms of classification. The Deputy Director before who testified, there was one occasion, four years ago. In the two context, the intelligence promotes section 702 is skrumtal in preventing attacks in the home and removing terrorists many the battlefield and they say that publicly. They say that about 102, but unwilling to say it about section 215. It would seem the program by it doesnt prevent terrorist attacks on the homeland. So, sir again reasoning . So again, sir sir, what i would say is that in the 702 context, decisions were made on what would be considered classified and not classified. I dont make those decisions, but in this context, the information youre asking about remains, is currently classified. I think we are going to have a classified hearing, mr. Chairman. I promise you, we will. When the director of National Intelligence time in august acknowledges cdrs programs relative intelligence value does not outweigh its cause. Saying the program is not sufficiently valued to be worthwhile. Is that what i should read from that . Sir, i would say i think you should read from that that kurptly, absolutely, the value does not outweigh the cost. Thank you very much. Thank you. Youp, i these questions arent direct ed at you personally. Were just trying to get some information here because we have to, senator lee and i and others have to vote on these things. Wiegmann and landrum, how many times has cdr information been used in criminal investigations or r prosecutions by the or the Justice Department . Not which case, just how many times . So im aware of one. Okay. Im not aware of any. So i would have to incur with mr. Wiegmanns statement. Thank you. Mr. Wiegmann, you were asked in september during the house Judiciary Committee hearing whether doorbell videos from the Home Security company, ring, could be obtain wd a section 215 order. You said you believe so. But youd have to check that and confirm. That was a couple of months ago. So now i ask you two months later, can the government obtain a ring video under section 215 for a fit bit or photos stored in the cloud . During the house Judiciary Committee, i think i said that Surveillance Video would be relevant and would meet the relevant standard of a Business Records request. So thats something that would be within the scope offor records that you could seek with a Business Records order. I think whether any particular video would be obtainable would depend on the facts. So take for example, youre at a bank, an atm. Machine where they have a camera. Or they have a gas station, they have a surveillance camera at the gas station and theres a terrorist that stops in for gas or whatever and you want u to get that video. I think in that context, thats something you could get with a subpoena in ordinary criminal case and probably get that therefore with a Business Records order. Other types of systems where the Electronic Communications privacy act may come into play because youre storing that video with a provider would raise different issues in that scenario. Thats more like stored content for might be protected by the Fourth Amendment and something you could not get with a warrant. Just to clarify, it really depends on the facts. What i was saying, it is not ruled out that you cant get Surveillance Video. It would depeptide on the facts and cases as to whether you could get it. If you could get it in the criminal case, you could get with the Business Records order. If its something protected by the Fourth Amendment, absolutely, you could not get it. You could not get protected content with a Business Records order. Does that answer your question . It comes very close to answering it. Preeappreciate it. Thank you, mr. Chairman. Happy to follow up if theres other aspects to that. Sfl fascinate. Senator lee. Thank you, mr. Chairman and to all of you for your willingness to serve the country in an effort to make us safer while protecting our privacy rights. Our privacy and security are not at odds with with one another. Our privacy is in fact part of our security. We are not truly secure unless our privacy rights are protected. I want to thank senator leahy for his work with me on these issues over the years. Senator leahy and i have been no distance, no daylight between us on these issues. One of the many issues that weve covered in addition to introducing the usa freedom act together relates to something you mentioned. A law passed when i was in eighth grade. And a law passed at a time when no one had personal computers. No one had email. Outside of small handful of people in government and aca academia. No one had email. It gives government access to the content of the email as long as it has ripened to the age of six months. This is stunning. So coupled with the authorities were talking about here, i think that ought to be of concern to every american. Most americans are very concerned when they find out this is the case. In fact, most americans are very concerned when they find out about most of these authorities. Its one of the reasons why these hearings are so important and why i hope to make them not just a regular, but a monthly occurrence and if we need to have these, so be it, but we need to get answers to these questions. Mr. Wiegmann and olando, whats the fbis working definition of tangible things in the context of Business Records . Books, records, papers, other documents. Airline records. Hotel accommodations. Vehicle rentals. Also provides for some sense of items such as Library Circulation records, book sales, firp arm sales records. Educational returns. Those types of documents. We would need a higher level of approval. These are the same things that could be gotten by a grand jury. So would that encompass medical records . Yes. And they include and not exclude from its purview, Mental Health records. I think with all of these, we would have to show relevance that this information is relevant. Sure, i understand but it still fits within the definition. I believe so. On each individual case and ill defer to mr. Wiegmann, is that we would have to look at does this violate a Fourth Amendment issue in which case, we would have to go for a search warrant. Its right in the statute because in section 1861 a13, it talks about the fact that you can apply for a production of as mentioned, library records, book sales, tax return r records or medical records, its in the statute the congress has given us u. Understood. Dna test results also presumably. Again, just to be clear, were talking about the more xhotic things. We are not using this authority to get these records. Its not cloer whear what the relevance would be. These are not the garden variety uses. I want to be very clear about that. The things were getting typically as i mentioned, Electronic Communications transactional records. We get shipping records. I appreciate that and the fact that you were absolutely correct in pointing out you were administering a statute that was passed by congress. You are not the lawmaker. We are the law making goe ining within the federal government and youre telling us what it says. Our job is to figure out whether and to what extent we should reauthorize those and we ought to change it. I think most americans would be alarmed to find out the ease with which the federal government more or less on a whim as long as it can check a few boxes, obtain someones medical records include uing Mental Health records, obtain tax records, including what Charitable Organization or church or synagogue or mosque. The record of their searches on google or other internet search platforms. Their conversations as overheard by amazons alexa or other similar technologies. And so when you put this much power in the hand of the federal government, one has to worry, the fact that you dont use them all the time is not in my mind, a satisfactory response from our standpoint. Again, this says nothing about you and youre saying. Were talking about this as lawmakers and whether or not its a dereliction of our duty to give this much power to government officials. If you asked most of King George Iiis officers if they were inclined to abuse writs of stance or inclined to abuse general warrants, theyd say no. We only use this for good things. For the king, the country, for god. And they would claim they didnt abuse them. You ask most british subjects including and especially most american columnists at the time and they would take quite a different view. One of the many things that worries me about this is the fact that were told that a number of these things will very rarely ever bemissible to obtai these records, this is of great concern to many american, especially me. This is not exactly something that hasnt gone unabused in the past. When you look at the church ni report frs the 70s, they analyzed the abuse of telephone recordings. Basically since the development of the telephone as a commercially viable option. And every president ial administration start wg the dwing of the use of the telephone up through the president ial administration in power at the time those proceedings were commenced. Those in office had abused the american surveillance and Law Enforcement and espionage agencies. We know these things can happen. Thats why weve got to tie a really tight set of restraints around them because it will be b abused. This is unfortunately human nature. Thank you. Senator blumenthal. Senator blumenthal. Thanks, mr. Chairman. Thank you for having this hearing. You know i think most americans never heard of the fisa court before the mueller investigation. Most people now when they think of the Mueller Report think of carter paige. They think of what theyve read in terms of the challenges to the warrant issue there. There have been charges that the warrant for was the result of an illegal partisan scam engineered by political enemies. To affect the outcome of the 2016 election and so in terms of justifying to the American People that the fisa Court Operating fair ly and effectivey ive raised this question. Do you think that the experience in that instance indicates that anything untoward happened in either applying for the warrants or in the fisa court granting the warrants from what you know. Let me ask mr. Wiegmann and mr. Orlando. I cant comment a because i dont know the answer and b, its under investigation. I think that issue is being examined by the ig right now. Well wait on the report and see what it says. I have to agree with mr. Wiegmann. Wouldnt be able to comment on the investigation. They would be the appropriate individuals to talk about. Let me put the question in in a different way. Do you believe that there is a need putting aside carter page for fisa court reform . I dont. I think the fisa Court Operating really well. Theres an extraordinary amount of o oversight. I think the level of attention that goes into every warrant is extraordinary. Its a r very time consuming and extensive process. Only very senior officials, only three officials can authorize a fisa warrant so its at the highest levels. You contrast that with i dont want to disparage ordinary criminal cases, but its different if its a deal e or organized crime figure. We have high standards. Extensive oversight. Soperspective, the system is working pretty well. Do you agree . I agree. I think if the American Public was able to see the rigor of this plosz theyd be surprised about what goes into protecting their privacy. Fisa also goes to a grand jury judge where theres scrutiny. So theres a lot of rigorous protections in place. The scrutiny given to a fisa warrant is substantially greater than a grand jury subpoena. Yes, dramatically so. Just to mention something senator lee said earlier about the types of records, just to be clear, the Business Records authority cant be used to obtain anything that is protected by the Fourth Amendment. Just cannot. So we can want get those things. I didnt get a chance to address it, there are separate statutes that protect say tax records and medical records and so forth and i didnt want to suggest that if there are separate things that congress has enacted, the interplay between those restrictions and the business isnt something i was opining on so in the event were able to use the Business Records authority, we would have to consider the effect of those statutes on whether you have the authority. So all im saying is we have the same, the authority that we have on the Business Records provision is the same, right, as what we have in a criminal case, right . So theres nothing that gives us Greater Authority to sensitive types of records than could be obtained with an ordinary grand jury subpoena. Theres not something intrusive. In fact, its less because we have additional oversight and requirement. So i want to make that clear. Nothing special about the National Security side. You took a lot of my time. I apologize for that. Senator lees question, but u it was a good question. Let me raise one last issue. In 2012, the solicitor general assured the Supreme Court that any criminal defendant who was being prosecutored using evidence discovered or indirectly through surveillance authorized by section 702 of fisa, amendment, the fisa amendments act, would receive notification of that fact. That kind of notice is essential as i think we would agree. Without it, defendants have no ability to challenge the lawfulness of surveillance thats used against them. Its one of f the key mechanisms for ensuring the lawfulness of all Government Action and it disappears if theres no notification. After he made that representation, it became clear that the department of justice was not in fact informing criminal defendants when section 702 surveillance had been used to build a case against them. I know the law and doj policy have changed since then. So i hope this question is going to be an easy one for you. Does the department of the justice always inform criminal defendants when the case against them is built on evidence gained through section 702 surveillance . Very surprised when you say built on. The standard in the statute is evidence that is obtained or derived from the use of 702 is used against an aggrieved person in a criminal case that would comply with our legal obligations and would provide notice in that context so all those elements have to be met. Has to be an aggrieved person, which is a person on the communication. In which case we would have no obligation to notify person because he would have an interest to assert standing to suppress that information. You have to meet those requirement, but if that is the case not a commune cant, he is not, or she not being surveilled. Thats right but communications of other people could be relevant in that persons case. Let me ask you about section 215. Does the department of justice senator, were about two minutes over here. Oh, im sorry. Well we took two minutes of my time. Ill submit my questions in writing. I think i know your question, but section 215 does not have a notice provision. There is no Fourth Amendment event. Its not protected so theres no suppression remedy under 215 either so there is no notice mechanism. If that was your question. Thanks to all for being here. Ive listened carefully. Look, i know you have difficult jobs and i know your colleagues do as well. I thank you for the jobs you do. By and large, you kept us safe. And i appreciate that. Im not sure how much progress were making today. Theres little you can tell news a public setting. Youll probably be somewhat reluctant in a private setting, classified setting, and i understand that. This place leaks like the titanic. Usually for political advantage. And i really, really regret that. It would seem to me that when we do this again, mr. Chairman, we could invite our Three Friends who are back, but also the policymakers. Put yourself in our shoes for a second. We cant see what you see so we have to assume the worst. That doesnt mean its an accurate assumption but senator lee made the point well. Government has been known to abuse its power. And none of us want to look around one day and see that a america has a a social Credit System like china. We dont want you to become as powerful as facebook. For all i know, facebook has our dna. But thats a separate, separate topic. And let me give you an example. In the 60s, president johnson had decided not to run for reelection. He was in the paris peace talks. He received information that then candidate and later president , richard nixon, allegedly was interfere wg the paris peace talks. For political reason. I dont know if its true or not, but there was credible information. But president johnson couldnt say anything because he got his information through illegal wiretaps. We dont want to end up there again. I want to understand in the little time i have left, i hope youll help me. On our call detail records system, was it shut down because of technical difficulties or because of a cost benefit analysis . Sir, i would say that it was shut down, suspended because we did a cost benefit analysis, but couldnt do that in ice laigs and not take into consideration the other factors such as the concerns that we faced. So we dont operate in a vacuum so we would weigh all the different fakih r tors to include those to try to come up with a comprehensive and really thoughtful position on how to proceed with the program. Youre not a policymaker. No, sir. But u ive been very impressed with your testimony and your candor given the circumstances. If you were a policymaker and perhaps you should be, would you renew the program . Sir, what ill say to that is that i support the administrations position because i believe its the best position to have with respect to this program. Why is that . So the reason that i believe that ased before, the way terrorist communicate and the Way Technology evolves, its not those terrorists might be using that technology and perhaps the way we could get insight into their context, just met ark data with one another, would be to leverage this particular authority and i want to have the ability to move as dynamically as possible to try to get at those communications once a decision would be made to say yes. We think the potential value of that authority and how we would apply and leverage it would outweigh the resource cost and were confident in our ability to execute that authority in compliance with the laws, regular laces and policies that govern us. Thank you. Thank you, sir. Thank you mr. Chairman and thank you each your pay thence and shens and being as candid that you feel you can be in this setting. I would say i think most people look eed at what we know now transpired with the 2016 elections and the abuses with the fisa court process. And communications and actions between strzok and lisa page and they go something needs to be done about this because we value our privacy. And we probably should have years ago put in place some privacy Online Privacy guidelines and rules of the road but congress has not done that. People are just now becoming aware of much of this. It is imperative that as we do these reviews, that we do them right. And miss morgan, you just spoke to evolving technologies. And we know that terrorists dont pick up the phone and call somebody and say this is what im going to do. Theyre using signal. Theyre using whatsapp. Theyre using snap. Snap map. Things of that nature to move and i think its important that you all be able to work and to evolve. As these new technologies come into the marketplace and come boo m into play, but id like for you u as much you can now and then when we go to a classified hearing then be able to expand on how you are evolving and working with these new technologies and and tracking the way adverse actors are using their technologies. If youll give just a little snippet. Thank you for your question and ill do my best in an open setting. So what i would say is that as i mentioned before, they give us different tools and options. Over time, we apply those authorities in different ways in the confines of the law. In accordance with the law and regular laces. So the law we might aply a law, thats an evolutionary process that evolves. We need to make the appropriate changes. What we need to do is give you the tools that are going to be useful. And if there are changes that need to be made, we need your insight on that. Because we do not a as senator kennedy just said, we dont know what you know so we are putting a platform in place. A guideline in place. The statutes in place then youre trying to come back in and plug what youre doing into these various holes. And put those policies in place and then you all are taking your actions based on that. So we need your help and your insight on that. I do have one other question and of course weve all got lots of questions about section 215 and were going to wait. One thing i want to hear in you all when we go to a classified setting, mr. Chairman, the safeguards on the data youre collecting then the disposal of that. I think we need a little bit more information on that and it would be inappropriate at this point i realize that so well look for that in a classified setting and i yield back. Senator holly. Thank you, mr. Chairman. Thanks to all the witnesses for being here. Can any of you compare the data that government has been able to collect using these tools with the amount volume of data that private company, im thinking of facebook, google, maybe ticktock. Are they comparable . Has the government collected, able to collect much more . Do any of you have a sense of that . Id just be curious to know. We can only get the information thats targeted in a particular case. A lot of Companies Maintain full access if thats the answer to the question for their own commercial purposes and so forth so they would have access to largers quantities of ta ta than the government could get in the legal process. You have to go through some sort of process. It varies depend iing on what i is youre collecting, but google and b facebook and tik tok and everyone else, once they get their users consent which they dont normally ask for, they have access to geo location data, search data. Phone books. Messages, et cetera. Totally correct. Switching gears to slightly, let me ask you about the business r records provision in section 215. How has the fbi used this authority over the last couple of years, can you give me a sense and what would it mean for the bureaus ability to Counter Terrorism other threats if your ability to obtain business r records information went away . Give me some perspective on that. In a variety of ways mostly as a Building Block. For instance, as i stated earlier today in a terrorism case, oftentimes when home grown violent extremist begins to mobilize for violent, attempt to secure weapons, whether a knife or rent a vehicle r or bomb making material. The Business Record enables us to get those records to determine ha he is doing that so we can disrupt him. Additionally, we often use the Business Records for trying to make a record. That is who are you communicating with, but not the content. Thats been especially helpful in our counterintelligence investigations as we build out the networks that the officers are building through to recruit those persons. We also use that in the same way our terrorism cases as well. As far as what would happen if we lost this provision, what we would be able to acquire would be limited to four areas. We wouldnt get the totality or the equivalent of what a grand injury subpoena could get. The only way were able to get those records is through Business Records. Most companies dont comply with the National Security letters. And counterintelligence xuan times, a crime hasnt been committed so we wouldnt be able to declassify that information then go to grand jury for that. Then lastly, the standard for the Business Record would inkrecrease from relevance of t investigation to something higher to specific in fact that is this pertain to an agent of foreign power. Thank you very much. Thats very helpful. Let me ask you this. The biggest changes i understand that came with the usa freedom act was the end of bulk collection with day that. Im wondering what difference this has made over the last four years and what if any changes need to be made over the Current System of request iing detailed call records. So thank you for your question. If i could level set between the two programs. Please. So under u the bolt program, the providers would get nsa meta data. Again, we were lilted to meta data. Theyd give it to us in an indiscriminate fashion. Whatever they could technically give to us is what they would give to us. There would be an approval process that the appropriately trained analysts would have to go through to be able to have say a foep number and look into that data. So that was the bolt program. The providers hold on to the records in bolt. Our process is much more targeted. So what happens is an analyst might say i have this phone number and a reasonable suspicious that the user of the phone number is involved in International Terrorist activities. We would coordinate that with the fbi and with doj. If they agreed we met the standard, wed be able to compel the telecommunication providers to give us Records Associated with that phone number. Now when you lock at the two programs, theres you know some differences in that one being that now we would have u a Court Approval process in place now so you could say youp you know anything that has a Court Approval process in place isnt as quick as something that doesnt. You know one particular distinction in terms of our data integrity and compliance concerns, since those issues we related to the understood lying data we were getting from the providers r, we assess that we would likely have those similar kinds of problems in a bolt program because its just the mechanism by which youre getting that data. Thats helpful. Thank you very much. Senator cruz. Thank you, mr. Chairman. Thank you to the witnesses who are here. I think when Congress Passed the usa freedom act we were endea r endeavoring to strike the appropriate balance wean competing interest. That was bipartisan legislation. My friend senator lee took the lead in passing it. I was proud to work alongside him in doing so. I think the objectives were number one, to protect the civil rights of american citizens. And to prevent the bulk collection of metadata from american citizens who had done, committed no wrong doing and for whom there was no evidence they were ingauge d in wrong doing ad the usa freedom act took a step back in terms of the authority for government to surveil innocent american citizens. At the same time, the statute sought to enhance the tools to go after criminals, terrorist, to go after those who pose a real threat to the health and the safety of americans. I think that likewise is the right balance that we want Law Enforcement, we want the Intelligence Community focused on the bad guys and not on lawabiding citizens. That distipgs is right at the heart of the freedom act. I think its the right distinction to have. Im not one who is interested in, in defanging our Law Enforcement or intelligence ability to go after terrorists and to surveil them effectively when there is real evidence of wrong doing. But at the same time, we should not sanction the widespread violation of privacy rights of american citizens. So my question to the panel is a general one. Which is we now have several Years Experience you should under that statute. Which got bipartisan support and passed into law. How is it working . Did Congress Strike the right balance . Are there sufficient, are there number one, sufficient protections for the privacies, privacy rights of american citizens. And are there number two, sufficient tools to go after people who pose a genuine terrorist threat. And i will open that to anyone who would care to respond. Let me address the three ordinary authorities. Ordinary Business Records and roving authority. As i said, i think absolutely the r authorities are appropriate. Theyve been reviewed by ig multiit will times. This committee has full access to all the full uses of the authority if anything novel is done. So i think we have authorities to make sure theyre being used appropriately. Theyre not being used that often either. One could quarrel that theyre too difficult to use, but i think were comfortable with what i have now. I dont know if that answers your question. I think when i look at the three provisions that mostly provide fbi we havent used the lone wolf, but weve had a solid track record with it. I believe there are enough checks and balances. Most agents would complain that it was easier. Just to second that again. I think the most recent ig report on 2 15 a, the main complaint is it takes too long to do this process and so they would use other authorities, maybe less secure authorities on the criminal side because those are easier to use. Sir, thank you for. So i believe that from our perspective that it did strike the right balance and while weve had challenges from a compliance concern implement in the program, i think the checks and balances worked. We took steps to address those challenges. We selfreported to all three branches of government for our overseers, so i think that it struck the right balance. So mr. Orlando, i think you used a phrase Something Like a solid record of results. Something like that. Can you elaborate in terms of the benefits the tools have wielded . I can. They have been ben b official to us. On the Authority Given how intelligence sources train their officers, it has given us the in regard to Business Records have been very value b nbl helping us build our cases. Especially when theres classified information. We do receive a lot of information from our foreign partners that we wouldnt be able to declassify and it gives us u the ability to protect americans. Thank you. Thank you. Thank you, all. Youve done a really good job informing the committee. And had some tough question, but well work through it and do a classified hearing to dig down more into the information and make sure we know what we should reauthorize and what we shouldnt . Anything else . Okay, thank you. Next panel, please. Thank you all on this panel. We have adam cline. Chairman and member of the privacy and civil Liberty Service oversight before. Jamal jafr, founder and director National Security institute u. Anthony ska ali area, cool of law. George mason university. Mr. Klein. Thank you, mr. Chairman and Ranking Member feinstein. Happy to be here to testify today. You can kind of keep it a couple of minutes, that would be great. Im going to revise my statement downward as i go. Im chairman of the privacy an Civil Liberties r board which is an independent Branch Agency dedicated to ensuring that efforts to protect against terrorism are balanced with the need to protect privacy and Civil Liberties. My remarks are in my individual capacity as chairman and dont necessarily reflect views of my four other bipartisan colleagues. Weve talked a great deal about the contours and orgins of the problem. And ill talk about what our pord has been doing on this problem and what information we can provide to the committee. In advance of the upcoming deadline, our board has reviewed nsas collection of call detail records under the usa freedom act. That gags involved months of fact finding. We also held a public forprum to rum to receive outside views on the program. Recreptly, we submit ted a repot for accuracy and review. That draft contains an account of the operational issues that occurreded during the programs life. Id like to thank our staff for many months of f hard work. At present, the document remaps classified, but we are prepared to brief any senators and the staff including immediately after this hearing in an appropriately secured setting on the details which i think will answer many of the factual questions that have come up here today and we certainly understand the committees desire to receive that important information. Im also cleareded to provide a few conclusions on a top line level based on facts we found in our review. We looked ed found no evidence that nsa received the categories of information under the statute. Those would include the content of calls. The names or o addresses of subscribers, Financial Information, cell site Location Information or gps coordinates. Of the questions in a classified setting. Nhs chose to suspend the program after the relative intelligence value against other factors, and i can say my view based on the facts weve reviewed that that decision was wellsupported by the available evidence. We also looked at the compliance concerns and data integrity concerns that led nsa to delete data and influence its decision to suspend the program. Our review of the facts surrounding those incidents confirm those challenges were inadvertent and not willful. Its important to note that when nsa received information that raised questions about the scope of what it was allowed to collect under the statute, the agency chose to follow a narrower authority under the act rather than a more expansive interpretation that would have given it greater leeway and were happy to give the details supporting that immediately after the hearing or any time that would be convenient for senator oris staff members. We hope the work will be reviewed swiftly so an unclassified report will be provided to the public at some point and hopefully to the congress as quickly as possible. We are grateful to the people assisting with the review process. Thank you again for the invitation, and i look forward to answering your questions. Thank you. Chairman graham, Ranking Member feinstein, and members of the committee, thank you for having me here today. Today were 40 days out from the reauthorization of the usa freedom act. If congress doesnt act in the next 40 days, the authorities go back to the pre9 11 state of the authorities. That means the ability to collect information, and the row program and the crr program, oversight enhancing measures that were put into the usa freedom act. Clearly Congress Needs to act in the next 40 days to take some action to reauthorize some of these provisions and make the modifications necessary. As you already heard today about the relative value of and the potential value of lone wolf and roving, seems like theres little debate about that. Those seem like a sensible thing to reauthorize. As for the base program of 215 where the government is able to retain a variety of records well beyond what the original authority provided prior to 9 11. That seems relatively noncontroversial. Theres no evidence of misuse or abuse of those programs in the last 18 years since theyve been around roughly. The exception of lone wolf has been around a little bit less time. It makes sense not just to reauthorize those fwout make those perfect and avoid running after the deadline and have a concern about losing authorities. Then we come to the final authority the cdr which is the topic of much discussion today at the committee. It was the issue in the 215 program that generated the usa freedom act, generated the debate that we had and ultimately led to the changes that were made in the program. And so the question is why reauthorize the program if, in fact, nsa has chosen to deauthorize the program and is no longer using it . Its a really important question. Today the threat we face from terrorism feels more distant than it did on 9 11 and the immediate aftermath of those attacks. It seems more distant than attacks weve seen in the United States. Weve put terrorists on the run for the past 20 years by fighting them overseas and yet they continue to be committed to attacking us here at home and attacking our allies abroad and attacking americans wherever they are. Those threats are clear, the dni repeatedly indicated isis remains strong regardless of taking away their habitat in syria and iraq. We know that the leader of isis is gone today, and yet they can remain committed to attacking us here at home. As for al quaeda, al quaeda remains a serious threat to us too. And lets not forget what iran poses to the nation. Weve gotten tough on them over the last two years and they continue to attack us. Weve seen the attacks on the u. S. Drones. Weve seen the attacks against saudi aramco. The threat of terrorism whether its iranian proxies, directly through al quaeda or isis remains strong. The question becomes what do we do about a tool we might utilize but isnt being utilized today . Do we take it off the table and . Or do we look at it carefully and if youre going to use it, let us know. It strikes me that the right approach to this oproblem is to at least leave the Authority Available for operators to use. Its been modified significantly from what it was. The huge concerns that were raised during the debate over 215 have been addressed. There are still questions about the bred and scope of the collection. Those things can be addressed through careful oversight the committee conducts and continues to conduct. I will say its em barrasing that the Justice Department was unable to answer your question for a year. We tried to avoid things like that. They do happen on occasion, but its not acceptable. Its not acceptable that you had members of the government come before you today and not be able to give you unclassified examples of the quality of the program. We know that the Justice Department has given us previously about a dozen unclassified examples. This is prior to the u. S. Freedom change and some of those are credible. They demonstrate examples. None of them are the Silver Bullet but youre never going to get a Silver Bullet in this type of collection. Senator feinstein knows that from her time on the committee. This is about Building Blocks. Youre not going to find a Silver Bullet if youre looking for that. But at the same time its very dangerous and it would be a mistake to take a tool off the table at a time when the terrorists remains high and substantive. Thank you. Chairman graham, Ranking Member feinstein, and members of the committee, thank you very much for this opportunity to testify. The usa freedom act was the most significant surveillance reform in nearly 40 years. It was a compromise and experiment. Several reforms that were included in earlier versions of the bill were dropped or weakened in order to obtain the administrations support. Moreover, the mechanism that congress innovated was a bit of a gamble. The definition of sst was left open ended which raised some concerns that in practice it might allow a collection that was, if not bulk collection, at least bulky collection. The law has now been in operation for four years and thanks to its transparency provisions we have some insight into how its working. The bottom line is that the law is not fully serving its intended purposes. Most obviously, the new phone Records Program established by usa freedom is a failure. And i wont go into it because im trying to go a little bit faster and weve talked about it quite a bit. I will say this idea that an authority might be useful and might be compliant with the law in the future is an authority is an argument for giving the government Unlimited Authority because you never know when authorities might be useful in the future. It is clearly time for congress to pull this plug on this noncompliant and ineffective program. In addition, the government statistical reports show that the sst mechanism is not working as congress had hoped. Under each authority, including section 215, also the penn register trap and trace, and National Security letters, the number of unique im sorry, not National Security letters the number of unique identifiers captured is orders of magnitude greater than the number of actual targets. What this suggests is that the government is choosing targets and or ssts that encompass hundreds or thousands of people such as Large Companies or ip addresses that cover Large Networks of people. In doing so, the government is inevitably going to be sweeping in large amounts of information that has no relevance to any authorized investigation. Thats the definition of bulky collection. Furthermore, since 2015, several fisa Court Opinions have been disclosed showing systemic noncompliance by the government with the limits, the allimportant limits in place to protect americans privacy and their Constitutional Rights. In one case that carries disturbing pekos of the nsa bulk collection, the court chided the fbi for conducted batch queries under 702. So, each query is supposed to be reasonably likely to return for an intelligence or evidence of a crime, but agents have been running queries of up to 70,000 people at a time on a theory that these queries in aggregate would return a hit. And finally with respect, mr. Wiegmann is not correct and mr. Jaffer is not correct that there are no provisions which i would love to get into later if we have time. So, in short time has revealed gaps and congress should take this opportunity to fill those gaps. As discussed in my written testimony in detail, congress should end the call detail Records Program but also tighten the standards under 215 recognizing that some would occur. Congress should close the back door search loophole that underlies the fbi batch queries and other warrantless searches of americans communications. It should implement Supreme Court hearing in carter versus United States by barring information. It should expressly prohibit surveillance based on race, religion, or other protected characteristics as well as surveillance predicated on First Amendment protected activities. It should fill various holes and it should allow the lone wolf provision which has never been used in 15 years to expire and should amend the provision so that it matches the criminal provision. So, thank you, and i look forward to your questions. Thank you. We have a vote at 12 00. Well just keep going as long as we can. About the cdr program, mr. Klein, do you recommend it be reauthorized . Thank you, senator. I want to first say that i certainly agree with professor jaffer that the terrorist threat e are mains i got it. Do you recommend it . Do you rethords it . I agree that the program was a correct decision to suspend the program. Whether its useful to keep the Authority Waiting around depends on a few predictive judgments . Do you think its going to be useful in the future . That would depend on how terrorists are communicating. We heard testimony at the public forum. Where are you at on should it be reauthorized . Yeah, i think the point im trying to make, senator, is unlike the things we can rest solid judgments on based on the retrospective look at the program, thats a predictive judgment of the future. So, the key factors are how are terrorists going to communicate. Theyre moving information and not sticking specifically. To be sure people still use phones but i think you would want to get nsas judgment in a classified setting about whether terrorists are going to be sticking with phones or whether a multifaceted authority might be useful. Of course theres the issue of whether the technical channels that were publicly disclosed with this program can be fixed and i think we would want to talk more with you in a classified setting to explain our view of what those issues were. And we would be happy to do that immediately after this hearing or any time thats convenient. Okay. How do your say your name again . Im sorry. Goitein. Lets say you have a scenario where somebody is trying to come in on the Refugee Program or you just named the person a Foreign National and we find on their website urging people to embrace jihad, what do we do about that . So, i think that on its own you say urging people to embrace jihad. I think its whether it reaches the level of a true threat and incitement to violence. Lets say it gives us concern. If profile has to do with race or religion, then no. But if their actions suggest theyve been involved with terrorism, thats valid. What do you say . I agree. The challenge is you cant get unless theyre a foreign power. Or a lone wolf. Exactly right. What the loan wolf provision does is allows the government to get an order from the fisa court in a case that theres proximate cause that a person is preparing for terrorism. That is why the lone wolf provision has not been used in 15 years. Mr. Chairman, the fact of the matter is thats not the only reason. There are times you dont have enough information to get a criminal warrant isnt that the point . Thats exactly right. Thats why they repeated the authority. Its still a standard you have to prmeet. Its not probable cause theres been a crime committed. Mr. Klein, the programs associated with the program, you believe the government acted responsibly in term of how they handled this . Yes, senator, i do. And i think there are a couple of key differences between this program and the former bulk program, the most notable of which this was based on a publicly enacted statute that clearly laid out the contours of what the government would be able to do under the program. Our review indicates they made every good effort to follow those contours. So, we should applaud them for basically selfregulating here, right . S theres a compliance infrastructure in place. Any large human enterprise is going to involve some mistakes. The question is how do you respond to the mistakes. One last question to get your answer to my original question. All of us are up here worrying about how do we explain to our constituents to reauthorize a program thats been shut down and what do we say the day after an attack. Did we do everything within reason to prevent the attack . If you had to say the whats the wise decision in terms of, you know, hedging your bets to keep the program around . Yeah, i mean with respect, senator, and i dont mean to trivialize this program, but nsa operated this program for several years. They determined that the juice wasnt worth the squeeze. We looked at the juice. We looked at the squeeze. My you want j is that they made the right choice and whether its worth keeping that authority around in the future is on whether or not they feel they can squeeze the orange better in the future. Fair enough. Senator feinstein. I sit on the Intelligence Committee, and theres no question that we should keep our protection devices up and that there are people who would harm us if they could. And so i am categorically not for taking away any of the safeguards that this country has put in motion. I believe that its our obligation to protect us. And i watch carefully. I do by background work. I read the intel. And there are a lot of problems out there. And the question i have is how do we keep them from hurting this country. And i view that as my directive for my california constituents. So, i am not for cancelling out any program that exists. How we run it better, yes. How we run it more efficiently, thats fine. But to begin to remove these now with all that i know is going on in the world, im not going to be a vote to do so. I just want to make that clear. Thank you. Senato senator lee, can you sort of split this thing up . From my view, the three authorities all makes sense to me. The cdr program seems to not have lived up to our hopes and expectations. I guess you could permanently reauthorize three and make a separate decision on the other conditional two years from now, i dont know, senator lee, what you would be in the market for. But to not reauthorize it permanently but give it another chance. I dont know if that makes sense to you, but senator lee. Thank you very much. Mr. Klein, lets start with you. In your prepared testimony, you referred to recommendation made by people in your report which is really good, by the way. And in response to that, we added language to the usa freedom act, a section requiring a fisa court to select amicus to be able to select arguments where theres an order thats necessarily going to involve a novel or significant interpretation of the law as determined by the court, of course. In your view, does the vie sa cou fisa court utilize this provision as often as it should . So, that was a recommendation made by my predecessors but i strongly agree with it. I think its absolutely essential to increasing the public credibility of the court which after all is staffed by real article three judges so it should be credible. We all assume and agree that that improves the quality of decision making. If you look at the public reports that are coming out about the number of appointments, you will see an aupward trend so i think thats a good thing. My personal inclination would be to try to ensure that the amicus is involved as much as possible including every matter where you can be confident theres going b to be a significant decision made. The annual certification proceedings that take place, thats different from a title one fisa wiretap where youre looking at one guy and what that person may have done. This is a programmatic judgment. In my view, thats exactly the type of i wouldnt, senator, respectfully. Most fisa Court Proceedings are analogous to warrant proceedings that take place on an ex parte basis on normal courts across the country. Federal court judges are used to hearing those things and making those decisions in an ex parte manner. I suppose some of the concern underlying what youre describing would be addressed by providing a carve out for cases involving an emergency. But i suppose thats a different question. Ms. Goitein, i have some questions for you. But before we get to those, i sensed a few minutes ago that you wanted to respond to one of the arguments being made to the probable cause showing. Do you want to get to that . Thank you. Yes. I just wanted to make sure we understood we were in fact talking about a probable cause standard, its not lower than probable cause and we were talking about probable cause that a person is prepared for or engaged in acts of International Terrorism. If you look up the definition of International Terrorism, its what you think. The notion that would not be enough to get a criminal warrant first of all doesnt make a lot of sense, and second of all isnt bourn out by the record. Its not that the government hasnt been getting the information that it needs. Its that its been getting that information through other means because the lone wolf provision isnt necessary. Its not necessary if its at least as difficult as but without the president ial track report of other mechanisms. So, why have it on the books if its not used and not likely going to be used if it doesnt plow ground . Its never been used and it removes this principle of connection to a foreign power that is the unifying principle behind when we use the fisa process as opposed to some other process. It opens the door to sort of gradually degrading the rights that are available to nonu. S. Persons who are lawfully inside the United States. Youre creating a danger thats unnecessary given it hasnt been used. Exactly. How do you think carpenter applies in the fisa collection process . So, the court in carpenter essentially held there are certain types of information that are so sensitive, so inherently sensitive in what they reveal about a persons life that the mere part theyre held by a third party does not e invis rate the trust. The court was very careful to say that it was limiting itself to the facts of the case. It said that this would not apply to, quote, other techniques that are used in the foreign intelligence and National Security areas. But if, in fact, section 215 is being used to collect cell site collection technique, that is another technique so i think carpenter would apply there. And while the court is not responsible for applying its general principles to cases that arent in front of it, congress cant avoid that, right . And the government cant avoid that. You need to figure out how before reauthorizing this legislation, how you think carpenter would apply to some of the other technologies and some of the other information that we know that the government is almost certainly obtaining through section 215 orders. There are certainly other types of information, other ways of obtains geolocation data, or other types of information that are similarly sensitive in what they reveal about a persons life where carpenter would absolutely hold. I think thats Something Congress should be looking at when it reauthorizes section 215 in large part because the government has failed to do so. In march, we got answers from the director of National Intelligence saying there had been absolutely no Intelligence Communitywide guidance on how to implement carpenter and then congressional requests for Additional Information have gone unanswered. In other words, theres nothing magical about uttering the words National Security that creates a loophole in the Fourth Amendment. You have things the government may do and things the government may not do. But that doesnt turn on whether you utter the words National Security or put it in the context of a foreign intelligence investigation. Thats certainly correct with respect to domestic National Security. And congress has in the past made the decision that the protection of a warrant or Something Like a warrant, a fisa court order should apply when extremely Sensitive Information is at stake. Thank you. Thank you. This has been a great hearing. Well do a classified follow on about the program and just end with this thought. Theres a difference between fighting crime and fighting a war. And i think i understand the difference. And were going to preserve the tools necessary to hit the enemy before they hit us within our constitutional democracy. But theres a fundamental difference here between trying to prosecute an individual and prevent an attack on our country. And i think thats what this is all about. So, well have a classified hearing. Then well talk about what to do next. Thank you all. Today experts on latin america discuss the challenges and successes of mexican president obradors first year in office. The event is live at 3 00 p. M. Eastern on cspan3 online at cspan. Org or listen live on the cspan radio app. The house Judiciary Committee will ole hold a hearing this week with constitutional scholars. The panel is intended to focus on constitutional grounds for president ial impeachment according to a statement from jerrold nadler. Well have live coverage of the hearing wednesday at 10 00 a. M. Eastern on cspan3. You can also watch online on cspan. Org or listen live on the cspan radio app. Our cspan campaign 2020 bus team is traveling across the country asking voters what issues should president ial candidates address. I want the candidates to focus on this year might not be popular, but gerrymandering because it impacts all our local elections and congressional elections. Its gotten so out of hand in texas and North Carolina where it feels like your vote doesnt matter because it doesnt when the district has been gerrymandered against you. This year i want the president ial candidates to talk about the Real Estate Industry. The Real Estate Industry has basically so much control over the land in this country and theres, like, big real estate executives who are able to buy the land. And i think that we need more Community Control of things and the Real Estate Industry has a long, long history of being really kind of an oligarchic force. The thing i would like to see the candidates focus more on is how to fix the corruption in our system, so getting money out of politics, passing constitutional amendment to get money out of politics and reverse Buckley V Vallejo and Citizens United and just Different Solutions regarding the corrupt chair politics and the rampant money running through d. C. And restoring our democracy. I want the candidates to focus more on Foreign Policy. I would like to really hear about cutting back the military, going after the military Industrial Complex because i really think thats something that would benefit our region because weve got a lot of people that are forced into the military and then they never come back home. I also think that we need to cut spending in the military. Its almost a trillion dollars a year. And i also think it would help the Immigration Crisis because i think we need to stop the imperialist activities of overthrowing right wing overthrowing people in central america, replacing them with right wing dictators, and then causing the migrant crisis. Voices from the road on cspan. Cspan sat down with 2020 democratic president ial candidate and former Massachusetts Governor deval patrick. He talks about why he entered the race, his stance on certain policy issues, and his childhood in chicago. This is 40 minutes. Governor deval patrick, the question everyon is asking is why are you running . Well, you know, ive had a range of professional and Life Experiences solving problems in