Two Surveillance Bills to Come Before Senate Intelligence Committee

Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., will introduce a proposal with ranking member Saxby Chambliss, R-Ga., to strictly limit access to the phone metadata collected, forbid collection of phone call content, make sure analysts meet the “reasonable articulable suspicion” of terrorist associations to query the database and to reduce the amount of time that phone records can be held, she said. The bill also requires annual reports on the number of queries conducted, the ones that led to FBI investigations and the number of probable cause warrants or Foreign Intelligence Surveillance Court court orders that emanated from the searches. Foreign Intelligence Surveillance Act Section 702, authorizing electronic record collection, would receive an amendment specifying that any search for a U.S. citizen’s name or email address must be done for an “articulable foreign intelligence purpose, and that a record explaining that foreign intelligence purpose will be provided to the FISA Court and to the Congress,” Feinstein said.

Four senators, including two Democrats on the Senate Intelligence Committee, introduced a stronger set of overhauls Wednesday (CD Sept 26 p1), calling for an end to the Patriot Act Section 215 bulk phone record collection, adding a constitutional advocate to the surveillance court, and implementing broader transparency changes. Those Intelligence Committee Democrats are Sens. Ron Wyden, D-Ore., and Mark Udall, D-Colo., joined by Sens. Rand Paul, R-Ky., and Richard Blumenthal, D-Conn. Both proposals will be debated next week in a mark-up, Wyden said: “Suffice to say, I think we'll have vigorous debate on those issues.” Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., also has a proposal (CD Sept 25 p2) to end bulk collection and institute varying revisions and is in talks with lawmakers from both parties in both the House and the Senate.

These “necessary” programs are “lawful” and “conducted under careful oversight” from many bodies, Feinstein said. They've prevented many attacks, said Feinstein, who pointed to recent attacks in Nairobi and speculated how those could have occurred in the U.S. But she also described “real public skepticism” over the programs, which is why she wants to introduce her legislation. “It’s clear to me the public has a misperception, and that must be corrected.” Other provisions would require Senate confirmation of the NSA director position and mandate attorney general guidelines for the programs be updated and reviewed on an ongoing basis, she said. There’s talk about limiting “the number of hops” involved in surveilling call records, she said.

"The rigorous oversight we've operated under has been effective,” said Director of National Intelligence James Clapper. The intelligence community knows the public wants to understand the tools and to make sure officials should be trusted, he said. He slammed recent leaks and pointed to the risks they've posed to national security. “What we do not do is spy unlawfully on Americans or for that matter, spy indiscriminately,” he said, citing the “multiple layers of oversight to make sure we do not violate our authorities.” He said the entangled communications system today makes tracking terrorists and suspects complicated: “Human error or technical problems” typically account for the few mistakes the senators mentioned.

"To my knowledge, there is no upper limit, no,” NSA Director Keith Alexander told Udall in response to questioning about the phone records collected. “I believe it is in the nation’s best interest to put all of the nation’s phone records into a lock box.”

"I am proud of what NSA does,” Alexander told senators. “Today’s telecommunications system is literally one of the most complicated ever devised by mankind.” Terrorists use the same network and technologies, like Facebook and Gmail, as everyone else does, Alexander said. Bulk metadata collection, with long retention and wide breadth, is important for disrupting plots, especially considering how far back in time those plots can go, Alexander said. These officials do know these are powerful surveillance tool, but there are “checks” and an “extensive regime” of internal and external oversight, he insisted. “We ensure compliance. ... We do make mistakes.”

But the mistakes show the challenges of “ever-changing technologies” and are “unintentional” and reflect errors that would be made in any complex system, Alexander said. It is “false and misleading” to say there have been millions of privacy violations, and there has been essentially only one unintentional violation per year, he said. “We hold ourselves accountable every day.” He’s not aware of any intentional or willful violation of the FISA statute, he said. The “roamer” incidents that Feinstein mentioned are not violations of privacy, Alexander said. He cited foreign statistics regarding terrorism and said “we need these programs” to make sure the problems cannot happen within the U.S. “We are always looking for ways to better protect privacy and security,” he said of legislative changes and potential changes pushed from the White House.

Clapper’s office has declassified and released documents recently to spur the debate and promote transparency, he said. “We'll continue to declassify more documents. It’s what the American people want. It’s what the president has asked us to do.”

Deputy Attorney General James Cole called a potential adversarial process in the FISC, used in novel and major cases, an important change. Currently, officials inform the intelligence and judiciary committees of Congress in the instances of compliance problems, said Cole. He spoke highly of the recent justifications put forth by the U.S. government, including a white paper released in August and an opinion from FISC Judge Claire Eagan. The three officials submitted joint testimony from the record (http://1.usa.gov/1bfnMQT) pointing to the transparency efforts of the intelligence agencies in recent months. “'Relevant’ is a very low term meant to set a low bar for the collection of business records,” he said, saying courts have upheld holding large repositories of data when necessary for certain pinpointing of specific data. He said there may need to be a legislative rebalancing between privacy and security, and defended the applicability, despite its age, of the 1979 Smith v. Maryland Supreme Court decision, which held that “installation and use of the pen register was not a ’search’ within the meaning of the Fourth Amendment.”

To imagine details of the “intrusive, constitutionally flawed surveillance system” would not come out is “ignoring history,” Wyden told officials. The system “repeatedly deceived the American people,” he said. “Your agencies face terrible consequences that were not planned for. ... That trust is going to take time to rebuild.” The drama following the leaks did not have to happen had the intelligence agencies been “straight,” he said.

"The only thing I really care about is we get it right,” said Sen. Jay Rockefeller, D-W.Va., pointing out how massively technology has changed. Some people want to “outsource” the work to the telco servers, a practice which he questioned, he said. Giving the telcos immunity was the right move, he said. Most people will never understand the FISA court but these committees do, he noted. He also agrees with “many or most” of the amendments Feinstein proposes to the system, which “is fundamentally very sound, in my mind,” Rockefeller said. “Obviously people can make mistakes.”

Sen. Daniel Coats, R-Ind., lamented what he termed misperceptions in the media and more broadly, and questioned whether journalists would accurately report on the open meeting. The programs are “saving Americans’ lives” and are legal, he said. He asked the officials the consequences of implementing some of the proposed reforms. “What are we losing by having to go through this tortured exercise of continuing to get feedback?” Clapper said Coats noted the frustration in the intelligence communities but said the agencies have erred on the side of transparency. Clapper said the Privacy and Civil Liberties Oversight Board is “up and running,” as is the White House’s surveillance review group -- both of which, Clapper stressed, are independent and don’t report to him.

A coalition calling itself StopWatching.us will protest the U.S. government’s surveillance activities on Capitol Hill Oct. 26, the anniversary of the signing of the Patriot Act, from noon to 3 p.m., it said Thursday. The coalition includes Free Press, the Electronic Frontier Foundation, Public Knowledge, the Center for Democracy & Technology, the American Civil Liberties Union, Mozilla, FreedomWorks, the American Library Association, TechFreedom, the New America Foundation’s Open Technology Institute, Code Pink, reddit and several others. They also associate with several individuals, listed on the coalition’s website (https://rally.stopwatching.us/), including Pentagon Papers whistleblower Daniel Ellsberg, journalist Glenn Greenwald and Chinese activist Ai Weiwei. “It’s going to take millions of people -- including Congress -- to hold the NSA accountable and to change the laws that have enabled these spying programs in the first place,” Free Press Internet Campaign Director Josh Levy said in a statement.