Hearing of the House Judiciary Committee - Administration's Use of FISA Authorities

Hearing

Today's hearing will examine the statutory authorities that govern certain programs operated under the Foreign Intelligence Surveillance Act, or FISA. Since the unauthorized public release of these programs, many Members of Congress and their constituents have expressed concern about how these programs are operated and whether they pose a threat to Americans' civil liberties and privacy. We have assembled two panels of witnesses today to help us explore these important issues.

Last month, Edward Snowden, an unknown former NSA contractor and CIA employee, released classified material on top-secret NSA data collection programs. On June 5th, the Guardian released a classified order issued by the Foreign Intelligence Surveillance Court requested by the FBI to compel the ongoing production -- for a three-month period -- of call detail records or "telephony metadata." Telephony metadata includes the numbers of both parties on a call, unique identifiers, and the time and duration of all calls.

On June 6th, classified information regarding a second program, the PRISM program, was reported by the Guardian and the Washington Post. News reports describe the program as allowing the NSA to obtain data from electronic service providers on customers who reside outside the United States -- including email, chat, photos, videos, stored data, and file transfers.

Both of these programs are operated pursuant to statutory provisions in FISA or the FISA Amendments Act. FISA was enacted to provide procedures for the domestic collection of foreign intelligence. When FISA was originally enacted in 1978, America was concerned largely with collecting intelligence from foreign nations such as the Soviet Union or terrorist groups like the FARC in Colombia. FISA set forth procedures for how the government can gather foreign intelligence inside the United States about foreign powers and their agents.

The intelligence landscape has changed dramatically over the last 30 years. Today we are confronted with ongoing threats from terrorist organizations, some which are well-structured but most of which are loosely-organized, as well as threats from individuals who may subscribe to certain beliefs but do not belong to a specific terrorist group.

The FISA business records provision -- often referred to as Section 215 of the PATRIOT Act -- allows the FBI to access tangible items, including business records, in foreign intelligence, international terrorism and clandestine intelligence investigations. Unlike grand jury or administrative subpoenas in criminal investigations, which can simply be issued by a prosecutor, a FISA business records order must first be approved by a federal judge.

Similar to grand jury or administrative subpoenas, a FISA business record order cannot be used to search a person's home, to acquire the content of emails or listen to telephone calls. It can only be used to obtain third-party records.

Critics of the metadata program object to its breadth, namely the ongoing collection of all customers' telephony metadata, and question whether this program conforms to Congress' intent in enacting Section 215 of the PATRIOT Act. I hope to hear from today's witnesses about this, about how the collection of this metadata is "relevant" to a foreign intelligence or terrorism investigation, and about whether a program of this size is valuable and cost effective in detecting and preventing terrorist plots.

In the 40 years since FISA's enactment, communications technologies have changed dramatically and revolutionized the transmission of international communications. The shift from wireless satellite communications to fiberoptic wire communications altered the manner in which foreign communications are transmitted. The use of wire technology inside the United States to transmit a telephone call that takes place overseas had the unintended result of requiring the government to obtain an individualized FISA court order to monitor foreign communications by non-U.S. persons.

Congress enacted in 2008 -- and reauthorized just last year -- the bipartisan FISA Amendments Act to update our foreign intelligence laws. The FAA permits the Attorney General and Director of National Intelligence to target foreign persons reasonably believed to be located outside the U.S. to acquire foreign intelligence information. The Act requires, for the first time in U.S. history, prior court approval of all government surveillance using these authorities, including court approval of the government's targeting and minimization procedures.

The PRISM program derives its authority from section 702 of the FAA. It involves the collection of foreign intelligence information about non-U.S. persons located outside the United States. To the extent the program captures information pertaining to U.S. citizens, such interception can only be "incidental" and the handling of such information is governed by court-approved minimization procedures.

I look forward to hearing from our witnesses today in greater detail about how the government limits its targeting under 702 to non-U.S. persons outside the U.S., and a description of the oversight performed by the administration and the FISC of this program, including the effectiveness of the current auditing of section 702.

The terrorist threat is real and ongoing -- the Boston bombing reminded us all of that. I'm confident that everyone in this room wishes that tragedy could have been prevented. We cannot prevent terrorist attacks unless we can first identify and then intercept the terrorists. However, Congress must ensure that the laws we have enacted are executed in a manner that is consistent with congressional intent and that protects both our national security and our civil liberties. We must ensure that America's intelligence gathering system has the trust of the American people.

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