IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS OF THE ACT THAT ADDRESS THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
HEARING BEFORE THE SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
OF THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
APRIL 26 AND APRIL 28, 2005
Serial No. 109-17
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Mr. SCOTT. Thank you, Mr. Chairman, for holding this hearing on the issues before us today, in the context where we have actually broken down the wall that existed between foreign intelligence gathering, particularly foreign intelligence, and criminal proceedings, to give the Government broad authority to collect and share information, mostly secret.
I am concerned that we have also blurred the traditional line of protection for freedoms and privacy. While I agree that some lifting of traditional restrictions in this area may be justified in order to induce Government to better use the authorities it already has, I am also mindful that those restrictions were placed there for good reason.
We have seen in the past the COINTELPRO, Watergate, FBI spying on Martin Luther King, Jr., and other incidents as an example of what can occur if we do not keep tight enough rein on Government's use of extraordinary power.
We should not have to experience those problems again in order to ensure that such abuses do not occur. Some of the provisions today reflect a trend that is troubling, the trend of Government to justify an ever-increasing extension of extraordinary powers based on convenience. We are considering time frames for surveillance operations that have been extended even more since the PATRIOT Act extensions, all because the Government says it is too costly for it to have to justify extensions in court, even under the low burden of the FISA court.
If we can commit to speed to spend billions of dollars in prisons and other law enforcement costs just to codify sound bites urged by the Department, we can certainly spend time and expense that it takes to ensure our privacy and freedoms are not unduly abridged.
And, Mr. Chairman, I believe it is important that we be safe and maintain our privacy and freedoms, and I don't think we should have to operate under the premise that we have to give up one in order to get the other.
So, Mr. Chairman, I look forward to the testimony by witnesses on the provisions before us today, to learn how they are being used and how these extraordinary powers can be authorized, whether or not the sufficient oversight is being undertaken, and whether the powers are used in a way to protect our safety as well as privacy and freedoms. And I thank you again for calling the hearing.
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Mr. SCOTT. Thank you, Mr. Chairman. Let me follow through on that. On the pen register, trap and trace warrants, you say you cannot get content. That is on the telephone conversations. How do e-mail and websites fare under that standard?
Ms. BUCHANAN. It is really no different, Congressman Scott. Content information is not collected either under a pen register for a telephone or under a pen register of e-mail. Content is not collected. The statute--
Mr. SCOTT. What do you get on e-mail or websites?
Ms. BUCHANAN. The statute is designed to collect just the routing information, who is talking to whom, not the content. The statute specifically deals--
Mr. SCOTT. What do you get on an e-mail?
Ms. BUCHANAN. With an e-mail you just get the routing information, where the e-mail went, who the e-mail was addressed to, not the subject or not any of the content. The statute--
Mr. SCOTT. No subject line.
Ms. BUCHANAN. No subject line. The statute anticipates that in some circumstances there could be inadvertent collection. The statute requires the Government to use the latest technology to prevent that from happening, and in the inadvertent situation when it does happen the Government is required to minimize this information and not to use it.
Mr. SCOTT. What about websites?
Ms. BUCHANAN. The same would apply to a website. This information--
Mr. SCOTT. Do you get to know which website was looked at?
Ms. BUCHANAN. The information that is sought is where the e-mail traffic was routed to.
Mr. SCOTT. What about-website is not an e-mail. Can you find out what websites I have looked at?
Ms. BUCHANAN. I think I am going to defer to Mr. Baker.
Mr. BAKER. Well, this is the--
Mr. SCOTT. I just say that because a website, if you know what website it was you know what I was looking at. If there were dirty pictures that would be embarrassing. Can you find out whether or not I was looking at dirty pictures, or whether or not I just accessed AOL?
Mr. BAKER. There are two issues here. The one issue is what does the technology allow us to do, and then what does the law allow us to do?
In situations where the technology would not sort of by default restrict the-looking down at particular web pages at a particular website, there are internal Department of Justice procedures as recognized by the statute that are in place to try to address the situation that you are describing.
So the law indicates that we are not allowed to collect the content, technology sometimes is not able to do that, to sort of defeat the content, and there are provisions in place in terms of policies to, in effect, minimize that kind of collection for-in other words--
Mr. SCOTT. Well, you recognize the fact that if you have-the website you look at has content implications, if there are certain health care websites, other kinds of websites, you can get some content just because you know what I have been reading.
Mr. BAKER. Yes. But these are communications-well--
Mr. SCOTT. Or what books I bought off of amazon.com. When I go to a website and look at those books, the website, page by page, you can see what I have been doing, what I have been buying.
Mr. BAKER. Well, I mean, business records, books that you purchased from a company, that is not something that is protected by the fourth amendment. And so different standards apply when the Government wants to obtain that kind of information.
So the statute is written a particular way to prohibit the use of a pen register to get content. But, nevertheless, those materials and that example might not be protected by the fourth amendment.
Mr. SCOTT. These FISA warrants, there is reference to not a U.S. Citizen. Can a U.S. Citizen be the target of a FISA wiretap?
Mr. BAKER. Absolutely, yes. The law distinguishes and has different standards for when you want to-when your target is a non-U.S. Person or a foreign power and when your target is a U.S. Person.
Mr. SCOTT. Well, target of the investigation and target of the wiretap--
Mr. BAKER. I am talking about the target of the surveillance in terms of a full content FISA.
Mr. SCOTT. Okay. Well, the target of the wiretap, does that have to be the target of the investigation? Suppose you find that somebody has a lot of information about your target. Can you wiretap that phone to get information about the target?
Mr. BAKER. The target is the person or the entity about whom you want to obtain information. So--
Mr. SCOTT. Suppose a U.S. Citizen has information, and would be-you find out that they are going to be talking about your target, and you can find out where they are going to be, get good information about your target. Can you wiretap-as part of the investigation of the target, can you wiretap somebody else to get information about your target?
Mr. BAKER. No. Only if I could show that that person was an agent of a foreign power. I would have to separately show, or that the other person is using or about-that my target-what I have-two things I have to show under FISA: that the target is an agent of a foreign power, and I have to establish that by probable cause, and the second thing, that the target is going to use the facilities or places of which the surveillance is going to be directed. So a telephone used by an innocent person that is not being used by the target is off limits unless I can make the statutory showing.
Mr. SCOTT. So you can only listen into conversations that involve the target?
Mr. BAKER. It depends what facility I am targeting. If I am surveilling the target's home phone, let's say, and the target-and that is my target, and I can be up on that telephone, if other individuals use that phone, then I can continue my collection, and I deal with that through court authorized and approved minimization procedures.
This is exactly what happens in the title III arena as well. You come up on the telephone--
Mr. SCOTT. Well, that is the home phone. If you got this roving kind of thing and the bug is actually placed at his place where he volunteers a lot, like the National Democratic Headquarters, how do you listen in on other people's conversations there?
Mr. BAKER. Well, again, I am going to have to-I know that the roving positions are going to be the subject of a hearing on Thursday. But succinctly, all of the FISA provisions have within them these minimization procedures that I mentioned earlier, that minimize, that require the Government to minimize the acquisition, retention, and dissemination of the information that is collected.
And those are-and the court orders us to follow those procedures. The court reviews those procedures and orders us to follow them.
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Mr. SCOTT. Thank you, Mr. Chairman. One of the problems we have had with some of these provisions is that people when they talk about them say loudly and clearly terrorism and then mumble something about foreign intelligence. Foreign intelligence doesn't have anything to do with crimes. It is just spying on people. You could be talking about anything involving conduct of foreign affairs, which may not have any criminal connection. Now am I right on the lone wolf provision, you have to have a terrorism connection not just vague foreign policy?
Mr. BAKER. You have to have a terrorism connection. You could not be an agent of a foreign power unless you were engaging in international terrorism or activities in preparation therefor.
Mr. SCOTT. For the purpose of a lone wolf?
Mr. BAKER. Correct.
Mr. SCOTT. For the other purposes, you could be the agent of a foreign government having nothing to do with terrorism or crimes, you could just be negotiating trade deals and stuff like that?
Mr. BAKER. Without commenting on the specifics what we would be acquiring, you could be an agent of a foreign power if you are a non-U.S. person who acts as such in the United States and you're an officer or employee of a foreign government.
Mr. SCOTT. And have foreign affairs type information nothing to do with criminal activity?
Mr. BAKER. That's correct.
Mr. SCOTT. That's what I said. People will loudly and clearly say terrorism and then mumble something about foreign intelligence, suggesting that we are talking about terrorism. We are talking about many of these circumstances, things that have nothing to do with crimes, terrorism or anything else, just foreign intelligence.
Mr. BAKER. That's correct.
Mr. SCOTT. But for the lone wolf, it has to be terrorism connected. What about the pen and trap and trace?
Mr. BAKER. You have to have a showing-make a showing in the application that the information that's likely to be obtained is either foreign intelligence information not concerning a U.S. person or is relevant to an investigation to protect against international terrorism or clandestine intelligence activities.
Mr. SCOTT. You can get this pen and trap and trace with things that are not criminally related or crime or terrorism-related? It can be foreign intelligence related?
Mr. BAKER. Foreign intelligence is a defined term in the statute.
Mr. SCOTT. Which includes terrorism and weapons of mass destruction and conduct of foreign affairs, which could be about anything. So I'm talking about it can involve just about anything part of it. We know the terrorism is in there. What else is in there?
Mr. BAKER. As you suggested, definitely includes foreign affairs. That's one of the prongs of foreign intelligence.
Mr. SCOTT. We're talking about getting this trap and trace on foreign intelligence?
Mr. BAKER. Not concerning a U.S. person.
Mr. SCOTT. And not concerning any crimes and not concerning any terrorism?
Mr. BAKER. Potentially. That's correct. Because Congress wanted to regulate all of the Government's--
Mr. SCOTT. The reason I say this is we scare people to death, and think we are talking only weapons of mass destruction when, in fact, we are talking about information that could have nothing to do with any criminal law at all.
Mr. BAKER. In a situation not involving a U.S. person.
Mr. SCOTT. In the United States?
Mr. BAKER. That's correct.
Mr. SCOTT. The predicate for this FISA wiretap and this FISA trap and trace could be the desire to get information about negotiating with another country on conduct of foreign affairs that have nothing to do with the terrorism or crimes or anything else that would endanger people in the United States?
Mr. BAKER. Well, it's always focused on the foreign relations of the United States vis-à-vis--
Mr. SCOTT. Which could include things that are not terrorism or crime related? You can start these wire taps off with ''foreign intelligence,'' which is conduct of foreign affairs, but with the lone wolf, you have to be in terrorism. For the other, trap and trace, it could be any other thing. What about wire tapping outside of the United States proper? Can CIA agents and all that wiretap outside of the United States? Are we even talking about that?
Mr. BAKER. FISA governs surveillance and physical searches inside the United States.
Mr. SCOTT. Is it quicker to get a FISA wiretap than a criminal wiretap?
Mr. BAKER. I don't know the statistics on the criminal wiretaps. But there are provisions in FISA that allow us for start to collection in an emergency situation based upon the authorization of the Attorney General. In an emergency circumstances, there are mechanisms to address that. There is a mechanism similar to that in the title III area.
Mr. SCOTT. And if you are in Colorado, it's quicker to come to Washington, D.C. To go before a FISA court than it is a magistrate in Colorado?
Mr. BAKER. I don't know about that. Faced with a situation like that, we obviously have secure telephones. The FBI field office in Colorado would call headquarters and they would call us at the main justice.
Mr. SCOTT. Rather than just running over to the magistrate and get a quick warrant? If you have probable cause that a crime is being committed and can get information from a wiretap, why wouldn't you get a criminal warrant?
Mr. BAKER. It depends on what you are investigating and what you're focused on and what tools you want to use that are at issue and what sources of information you have and what protections you think that the various statutes are going to give you with respect to these various areas. And so the FBI agents look at the investigation they've got and make an assessment about the various tools they have available to them and try to decide what to use.
Mr. SCOTT. We've heard about people for whom you have evidence that they are gathering up explosives about to blow something up. What's the barrier to getting a title III wiretap?
Mr. BAKER. Again, these are very fact specific situations. But FISA was built by Congress to address these kinds of threats to the national security. And it includes definitions, time periods, protections against disclosure of information, and other provisions, including minimization procedures that fit better in these situations than title III does necessarily. That's why it would be used in a particular situation versus a title III.
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