[Senate Hearing 112-920]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 112-920

     NOMINATIONS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               ----------                              

                             APRIL 18, 2012

                               ----------                              

                          Serial No. J-112-71

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         Printed for the use of the Committee on the Judiciary



                                                        S. Hrg. 112-920

     NOMINATIONS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 18, 2012

                               __________

                          Serial No. J-112-71

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
                                   ______

                    U.S. GOVERNMENT PUBLISHING OFFICE 

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York              JON KYL, Arizona
DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
        
        
                            C O N T E N T S

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                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
    prepared statement...........................................   382

                       STATEMENTS OF THE NOMINEES

Witness List.....................................................   381
Medine, David, Nominee to be Chairman and Member of the Privacy 
  and Civil Liberties Oversight Board............................     7
    Questionnaire................................................     8
Dempsey, James Xavier, Nominee to be a Member of the Privacy and 
  Civil Liberties Oversight Board................................    52
    Questionnaire................................................    53
Cook, Elisebeth Collins, Nominee to be a Member of the Privacy 
  and Civil Liberties Oversight Board............................   131
    Questionnaire................................................   132
Brand, Rachel L., Nominee to be a Member of the Privacy and Civil 
  Liberties Oversight Board......................................   223
    Questionnaire................................................   224
Wald, Patricia M., Judge, Nominee to be a Member of the Privacy 
  and Civil Liberties Oversight Board............................   252
    Questionnaire................................................   253

                               QUESTIONS

Questions submitted by Senator Leahy for David Medine............   383
Questions submitted by Senator Leahy for James Xavier Dempsey....   384
Questions submitted by Senator Grassley for David Medine.........   385
Questions submitted by Senator Grassley for David Medine, James 
  Xavier Dempsey, Elisebeth Collins Cook, Rachel L. Brand, and 
  Patricia M. Wald...............................................   386
Questions submitted by Senator Klobuchar for David Medine, James 
  Xavier Dempsey, Elisebeth Collins Cook, Rachel L. Brand, and 
  Patricia M. Wald...............................................   397
Questions submitted by Senator Leahy for David Medine............   398

                                ANSWERS

Responses of David Medine to questions submitted by Senators 
  Leahy and Klobuchar............................................   399
Responses of David Medine to questions submitted by Senator 
  Grassley.......................................................   421
Responses of James Xavier Dempsey to questions submitted by 
  Senators Leahy, Grassley and Klobuchar.........................   424
Responses of Elisebeth Collins Cook to questions submitted by 
  Senators Grassley and Klobuchar................................   447
Responses of Rachel L. Brand to questions submitted by Senators 
  Grassley and Klobuchar.........................................   463
Responses of Patricia M. Wald to questions submitted by Senators 
  Grassley and Klobuchar.........................................   485

                       SUBMISSIONS FOR THE RECORD

Undersigned Organizations: American Association of Law Libraries; 
  American Civil Liberties Union; American Library Association; 
  Association of Research Libraries; Bill of Rights Defense 
  Committee; Center for Financial Privacy and Human Rights; The 
  Constitution Project; Consumer Action; Consumer Watchdog; 
  Defending Dissent Foundation; Liberty Coalition; Muslim Public 
  Affairs Council; National Association of Criminal Defense 
  Lawyers; OpenTheGovernment.org; Patient Privacy Rights; Privacy 
  Times; Remar Sutton; Founder, Privacy Rights Now Coalition, 
  April 17, 2012, joint letter...................................   507

 
     NOMINATIONS TO THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

                              ----------                              


                       WEDNESDAY, APRIL 18, 2012


                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:08 a.m., in 
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Leahy, Whitehouse, Franken, and Grassley.
    Chairman Leahy. Thank you all for being here. Normally, I 
would go first. Senator Grassley has to go on to something 
else, so I will yield to Senator Grassley to begin.

 OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM 
                       THE STATE OF IOWA

    Senator Grassley. I thought we had everything lined up so I 
could speak at 10:10 over on the floor and then get over here, 
and that is what I emailed him this morning. So I have got to 
back up and be over here now. Welcome to all of you.
    Following the terrorist attacks on 9/11, we made a number 
of reforms in order to protect the Nation from further attacks. 
These reforms included tearing down the artificial wall between 
law enforcement and national security cases that the Justice 
Department had created, passage of the PATRIOT Act, reforming 
the intelligence community, and updating the Foreign 
Intelligence Surveillance Act.
    Many of these efforts were based upon Commission by the 
bipartisan 9/11 Commission. Altogether, the various reforms 
recommended by the 9/11 Commission and then implemented have 
strengthened our National security and helped to prevent 
another major terrorist attack on U.S. soil. However, we must 
remain vigilant against terrorist attacks and not let down our 
guard.
    I am sorry. I ran over here, and I should not have run. I 
am too old for that.
    [Laughter.]
    Chairman Leahy. I know all the running you do. None of us 
could keep up with you.
    Senator Grassley. Lest we forget that we were spared an 
attack on Christmas Day 2009 because the would-be bomber could 
not ignite the explosives, similar to the failure of the would-
be shoe bomber, Richard Reid, further evolving threats such as 
radicalized homegrown terrorists, such as Nidal Hasan, who is 
charged with murdering 13 and wounding 29 at Fort Hood, 
represent the evolving threat we face.
    That said, some have argued that all these reforms to our 
intelligence, law enforcement, and national security agencies 
have been at the cost of civil liberties and individual rights. 
Recognizing this concern, the 9/11 Commission recommended that 
Congress create the Privacy and Civil Liberties Oversight Board 
to oversee the new authorities granted to these agencies.
    In 2004, President Bush issued an Executive order creating 
an executive branch board focusing on safeguarding civil 
liberties. Congress also acted by passing and signing into law 
the Intelligence Reform and Terrorism Prevention Act, which 
included provisions creating the Privacy and Civil Liberties 
Oversight Board in statute. However, the original board was 
slow to develop, facing nomination and budget issues.
    In 2007, legislation updated the board's statute, re-
establishing it as an independent agency. President Bush 
promptly nominated three individuals to serve on the board in 
February 2008, but those nominations were not addressed by this 
Committee during the 110th Congress.
    Despite the board's new Congressional mandate in 2007, 
President Obama waited until December 2010 to nominate two of 
the five board members. The other three were not nominated by 
the President until December 2011. Given the significant 
mission of this board, it is hard to understand why it took the 
President nearly three and a half years of a four-year term to 
send up the nominees.
    We are here today to address all five of these nominations. 
There are a lot of important questions that I have of the 
nominees. Because we probably will not be able to ask all the 
questions, I will just say a summary of what I am going to 
proceed with when we get to questions.
    There are significant concerns over the broad mandate of 
the board, how it will be staffed, and how much it will cost. 
Further, there are concerns about what the mission of the board 
will really be. We already have privacy and civil liberties 
officers at many of the federal agencies that the board will 
oversee. How do the members plan to interact with these 
existing entities to ensure that the board does not prevent 
them from doing their job? I look forward to hearing the 
nominees' views on how the board will actually operate and how 
they plan to coordinate but not duplicate existing civil 
liberties oversight.
    Most importantly, I want to hear from the nominees how they 
will ensure that the work of the board will not hinder ongoing 
intelligence and law enforcement operations. Additionally, I 
will ask about their views on a number of critical national 
security tools that have been proven to keep the Nation safe. 
Both the PATRIOT Act and FISA have been reformed to ensure that 
information critical to preventing terrorist attacks is 
accessible and is shared among necessary law enforcement and 
national security partners.
    This board has a broad mandate to oversee how these laws 
are implemented, and it is important for Members to understand 
if these nominees have any preconceived bias or opposition to 
these important tools authorized by Congress.
    So for a second time, I welcome the nominees as well as 
their family members and guests with them. Each of the nominees 
has a distinguished background. Many of them are no strangers 
to this Committee, having previously been confirmed by the 
Senate to very important positions, and obviously, Rachel 
Brand, one of the nominees, is from my State of Iowa, and she 
has very impressive credentials as well as an impressive 
professional career.
    Welcome to all of you. Thank you.
    Chairman Leahy. Thank you.
    Senator Grassley. And I will be back in a little while.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Chairman Leahy. Thank you very much.
    As I said earlier, the Committee is holding this important 
hearing. We do want to consider these nominations to the 
Privacy and Civil Liberties Oversight Board. The PCLOB--and if 
anybody wants to try to pronounce that, feel free, because I 
know I could not. But as our Nation faces growing threats to 
national security at home and abroad and in cyberspace, I think 
it is important that we have a fully functioning board, and I 
welcome the President's nominees to this critical board.
    We have developed a lot of new tools to combat terrorism--
some have worked, some have not--since September 11th. Some 
have been very effective; some have been, I think, as much an 
annoyance as they have been effective. But throughout it all, I 
applaud the people in our country who do try to keep us safe, 
and we know that we will continue to have new procedures. But 
we also have to have meaningful checks and balances. We are 
going to safeguard our fundamental values as we try to secure 
the Nation.
    I have worked with Senators Durbin, Lieberman, Collins, and 
others to create the Privacy and Civil Liberties Oversight 
Board at the recommendation of the 9/11 Commission, something I 
felt should be there. We wanted to ensure that Americans' 
privacy and civil liberties are effectively protected even 
while we had these heightened national security measures.
    As the 9/11 Commission observed in its report, which is 
something we should not forget, is that ``[I]f our liberties 
are curtailed, we lose the values that we are struggling to 
defend.'' That goes back to Ben Franklin's comments that were 
not dissimilar.
    The board was initially established within the Executive 
Office of the President. Five years ago, we revised the 
legislation to improve the board's effectiveness. We wanted it 
to be an independent executive branch entity. We did this to 
strengthen the board. By ``we,'' I mean all of us who worked 
together on this legislation. We wanted to have a greater 
impact on the policies that affect Americans' privacy and civil 
liberties.
    Now, here in Congress, we are considering various proposals 
to enhance the Nation's cybersecurity. We all want to do that. 
We are not absolutely sure the best way to do it because the 
proposals would have a significant impact on the privacy rights 
and liberties of all Americans. So we are grappling with these 
important questions. How does our National Counterterrorism 
Strategy impact the rights and liberties of U.S. citizens not 
only here at home but when we are abroad? We have smartphones, 
GPS devices, and other mobile technologies that make it a lot 
easier for our Government to identify and track potential 
threats. But they also mean that we could have increased 
government surveillance which could imperil our privacy rights 
and our civil liberties.
    Over the last several weeks, we have seen reports in the 
New York Times and elsewhere about the increased location 
tracking conducted by local police and the fact that such 
surveillance is neither limited to terrorist threats or, most 
importantly, subject to a warrant requirement or judicial 
review. It is getting a little bit too close to Big Brother for 
me, and that is why I have been working so hard to update and 
strengthen the Electronic Communications Privacy Act.
    This should not be a partisan idea. Safeguarding our 
liberties is not a Democratic or a Republican idea. It is an 
American idea. These are American values, and we should all 
embrace them. And they set us apart from some of the other 
countries around the world, the fact that we do appreciate our 
privacy and liberty. And if anybody questions whether you 
really appreciate privacy, go to my own State of Vermont. We 
consider privacy to be one of the most important values we 
have.
    So I hope we will join together and consider these 
nominations to this important board in a bipartisan manner. I 
welcome the nominees.
    Before we start and before I introduce each one of the 
nominees, as is our custom, I wish to swear you all in, so if 
you could stand, please. Do you swear that the testimony you 
will give before the Committee will be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Medine. I do.
    Mr. Dempsey. I do.
    Ms. Cook. I do.
    Ms. Brand. I do.
    Judge Wald. I do.
    Chairman Leahy. Thank you.
    Our first witness will be David Medine. He is an attorney 
at the U.S. Securities and Exchange Commission. He previously 
served as a senior adviser to the White House National Economic 
Council from 2000 to 2001 before spending 10 years as a partner 
at the law firm of Wilmer-Hale. We have alumni of Wilmer-Hale 
here. From 1992 to 2000, Mr. Medine was the Associate Director 
for Financial Practices at the Federal Trade Commission, where, 
in addition to enforcing financial privacy laws, he took the 
lead on Internet privacy, chaired a federal advisory committee 
on privacy issues, and was part of the team that negotiated the 
Privacy Safe Harbor Agreement with the European Union. That 
must have been fun.
    Before joining the FTC--I say that tongue in cheek--he 
taught at Indiana University's Bloomington School of Law and 
the George Washington University School of Law. He has been 
nominated to serve as Chair of the Privacy and Civil Liberties 
Board.
    Before you begin, Mr. Medine, do you have any family 
members here?
    Mr. Medine. Yes, I do.
    Chairman Leahy. Well, would you go ahead and introduce 
them? That way it will be part of the record, and it will be 
someday in the Medine family archive.
    Mr. Medine. Thank you very much, Mr. Chairman. First, I 
will introduce my wife, Carol Weil; my daughter, Marissa, who 
is a public policy major in college; my other daughter, Julia, 
who is a high school student locally; and my sister, Emily.
    Chairman Leahy. You are fortunate to have your family with 
you, and please go ahead. Do you have a statement you wish to 
make?
    Mr. Medine. No, just that we are--I was humbled and 
grateful to have been nominated for this position. I look 
forward to working with such a distinguished bipartisan group 
of colleagues, and I look forward to answering your questions.
    Chairman Leahy. I am going to introduce each one of the 
members of the panel, and then we will go to questions.
    James Dempsey--James Xavier Dempsey, as I recall--is Vice 
President for Public Policy at the Center for Democracy and 
Technology--no stranger to this Committee, he has testified 
here many times--a nonprofit organization focused on privacy, 
national security, government surveillance, and other policy 
issues. Prior to joining it in 1997, he served as deputy 
director of the nonprofit Center for National Security Studies 
and special counsel to the National Security Archive. He served 
as Assistant Counsel to the House Judiciary Committee's 
Subcommittee on Civil and Constitutional Rights. He clerked for 
Judge Robert Braucher of the Massachusetts Supreme Judicial 
Court, and as I said, no stranger to this Committee.
    Mr. Dempsey, do you have family members here?
    Mr. Dempsey. No, Mr. Chairman, I do not.
    Chairman Leahy. The next witness will be Elisebeth Collins 
Cook, counsel with the law firm Wilmer-Hale. Did we leave 
anybody back at Wilmer-Hale?
    [Laughter.]
    Chairman Leahy. She focuses on complex civil litigation, 
administrative action, and legal policy. In 2008, she was 
confirmed as Assistant Attorney General for Legal Policy at the 
U.S. Department of Justice. In 2009, Ms. Cook served as 
Republican Chief Counsel, Supreme Court Nominations, for the 
U.S. Senate Committee on the Judiciary, and, of course, is no 
stranger to all of us here.
    Earlier in her career, she clerked with Judge Lee Rosenthal 
of the U.S. District Court for the Southern District of Texas 
and for Judge Laurence Silberman of the U.S. Court of Appeals 
for the District of Columbia.
    Ms. Cook, do you have any family members here?
    Ms. Cook. Yes, I am delighted to be joined today by my 
parents, Tom and Martha Collins; and my husband, James Cook.
    Chairman Leahy. Thank you. Good to have you.
    Ms. Cook. And friends and colleagues have taken the time 
today to be here, and I thank them for that.
    Chairman Leahy. Thank you. We will add all of them, if you 
give all of their names to the reporter. They might as well be 
in the Cook archive.
    Rachel Brand, currently Chief Counsel for Regulatory 
Litigation at the U.S. Chamber of Commerce, National Chamber 
Litigation Center, and she is referred to, of course, by 
Senator Grassley earlier. Previously she practiced law with the 
firm of Wilmer-Hale. She also served as Assistant Attorney 
General for Legal Policy at the U.S. Department of Justice. She 
handled policy issues including counterterrorism. She was 
Associate Counsel to President George W. Bush. She was a law 
clerk to Justice Anthony Kennedy of the Supreme Court of the 
United States and to Justice Charles Fried of the Supreme 
Judicial Court of Massachusetts.
    Ms. Brand, do you have family members here?
    Ms. Brand. Thank you, Mr. Chairman. I do. My husband, 
Jonathan Cohn, is in the audience, and my four-year-old son, 
Willem Cohn, is here, too.
    Chairman Leahy. Who is just fascinated by all the----
    [Laughter.]
    Chairman Leahy. Last, but not least, is a very good friend 
of this Committee, and I would note a personal friend, Judge 
Patricia Wald. She served on the U.S. Court of Appeals for the 
District of Columbia from 1979 to 1999, including five years as 
Chief Judge. Since that time, she has served in various 
capacities, including as a judge on the International Criminal 
Tribunal for the Former Yugoslavia; a member of the President's 
Commission on Intelligence Capabilities of the U.S. Regarding 
Weapons of Mass Destruction. She had been an Assistant Attorney 
General for Legislative Affairs at the Department of Justice 
before joining the court of appeals. She also clerked for Judge 
Jerome Frank on the U.S. Court of Appeals for the Second 
Circuit, which is a circuit I argued before years ago.
    Judge Wald, do you have family members here?
    Judge Wald. No, I do not, Senator. My husband died within 
the last year, so I am sure he is here in spirit supporting me 
on. My five children and 10 grandchildren are so widely 
dispersed throughout the country that I gave them a pass on 
this hearing since they have been to previous confirmation 
hearings.
    I do have some good friends and former colleagues in the 
audience.
    Chairman Leahy. I offer my condolences on the passing of 
your husband. I know you were together for a long, long time. 
Enjoy those grandchildren. As you know, they are the reward for 
having put up with your children all those years.
    [Laughter.]
    Chairman Leahy. And there is a hidden part of the 
Constitution which I will reveal today to all these legal 
scholars, the hidden part of the Constitution which requires 
grandparents to spoil their grandchildren. My wife and I 
believe strongly in it.
    Mr. Medine, a fully operational Privacy and Civil Liberties 
Oversight Board is, of course, essential, as we know, to 
protecting our privacy. And I have said on this so many times 
since September 11th of 2001, we have got to protect ourselves, 
but we have got to balance it with what makes us great as a 
Nation, our privacy and our civil liberties. What are going to 
be some of your first priorities if you are confirmed as 
Chairman of the Board, and how will you address these 
priorities?

  STATEMENT OF DAVID MEDINE, TO BE CHAIRMAN AND MEMBER OF THE 
          PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

    Mr. Medine. Thank you, Mr. Chairman----
    Chairman Leahy. Is your microphone on?
    Mr. Medine. Thank you, Mr. Chairman. If confirmed, the 
board would have to meet and discuss what our priorities are, 
but there are obviously a lot of pressing concerns about 
national security and counterterrorism efforts and our charge 
to make sure that there is the proper balance struck between 
privacy and civil liberties and counterterrorism. But as you 
alluded to, the 9/11 Commission said the choice between 
security and liberty is a false choice. But there are a number 
of programs that we would look at. One is the statute calls for 
us to look at the information-sharing guidelines, and so that 
would certainly be a first priority. And I know those 
guidelines have been recently revised, and so they are 
essentially a living process, and the board, if confirmed, 
would be happy to look into those and provide the required 
advice. But there are a number of other issues that, once we 
meet, we would establish some priorities.
    One thing that we cannot do until we have been established 
is to gain access to highly classified information which would 
give us the full range of knowledge in setting our priorities.
    Chairman Leahy. Mr. Dempsey, we talked about how you share 
information within the government, and obviously, if we are 
under any kind of an attack, the ability to share that is very 
important, whether it is a physical attack against us or a 
cyber attack. But I am also concerned that today we do not have 
all our private information in a filing cabinet at home. It is 
online somewhere. And I have had a lot of Vermonters who 
expressed worry about the National Security Agency or the 
Department of Defense accessing information about their online 
activities. I worry because sometimes with good intentions you 
have people who do not seem to use much sense.
    For example, whoever the idiots were in the Department of 
State and the Department of Defense who put all this 
information, private and confidential memos from Ambassadors 
onto a computer where a corporal, whatever his motivations, 
could just access all that stuff and give it out--I mean, 
people have died and other things have happened because of 
that. And I realize the corporal has been arrested, but I would 
like to see some public exposure of whoever the num-nums were--
that is a professional Vermont term--who allowed all that stuff 
to be put on a computer where somebody could get it anyway. It 
is obvious they had no idea how computers work or how easily 
they can be accessed.
    I say that because you can understand why people are 
worried that if we give more and more power to the government 
to go into our private things, some idiot is going to put it 
somewhere where the next thing we know it is going to be all 
over Leak-a-pedia, or whatever you might want to call it.
    So how do you assess the privacy and civil liberty 
implications? How do you address something like that?
    [The biographical information follows.]
    
    [GRAPHIC] [TIFF OMITTED] 
    
 STATEMENT OF JAMES XAVIER DEMPSEY, NOMINEE TO BE A MEMBER OF 
        THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

    Mr. Dempsey. Well, Mr. Chairman, as you know, the questions 
of technology and security and privacy are of long-running 
interest to me as they are to you, and if confirmed and if the 
board comes into operation, I would look forward to working 
with the Chairman and the other members of the board to 
establish a sense of priorities. But I think the whole 
question, as Senator Grassley also referred to, of information 
sharing is critical.
    After 9/11, appropriately in my view, the law was taken 
down, and agencies were under an imperative and are under an 
imperative properly to share information. But as the 9/11 
Commission recognized, as the Congress recognized, as the 
agencies themselves recognized, this poses challenges both on 
the security side, as illustrated by the WikiLeaks situation, 
and on the privacy side.
    So, if confirmed, I would look forward to working with you 
and with the privacy officers in the various agencies who, I 
know, are grappling with this issue and to work with the people 
designing and running these systems, look at what is effective, 
what are the needs, what is the threat, and then how can we 
meet the threat with the system of checks and balances, 
accountability, and the kinds of rules that you referred to.
    Chairman Leahy. Well, you know, we talk about WikiLeaks. 
There is a case where we had some real--the leaking of parts of 
it was just embarrassing, but other parts really went at our 
National security, and in some cases I think a case could be 
made that people died as a result of it. And that is an easy 
one. I mean, the fact that it came out and WikiLeaks used it 
and so on. But we can also go just as average citizens, you 
might have everything there from a member of your family is 
undergoing psychiatric help or alcoholic rehabilitation or 
something like that, and if it is easily available, does that 
leak out to your embarrassment?
    I might ask the same question of everybody else here. Ms. 
Cook, do you want to add anything to that?
    [The biographical information follows.]
    
    [GRAPHIC] [TIFF OMITTED] 
    
STATEMENT OF ELISEBETH COLLINS COOK, NOMINEE TO BE A MEMBER OF 
        THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

    Ms. Cook. I would echo Mr. Dempsey's thoughts on this 
issue. I would just add that, if confirmed, one of the things I 
think you see today is development of technological privacy 
enhancements at the same time that you see development of the 
ability of the government to use analytical tools. So with 
respect to large sets of data, if confirmed, I would look 
forward to working with privacy officers, working with 
Congress, and working with the agencies to ensure that as they 
use their enhanced or additional tools, they are taking care to 
also put into place appropriate enhanced safeguards.
    Chairman Leahy. Ms. Brand, do you want to add anything to 
that?
    [The biographical information follows.]
    
    [GRAPHIC] [TIFF OMITTED] 
    
  STATEMENT OF RACHEL L. BRAND, NOMINEE TO BE A MEMBER OF THE 
          PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

    Ms. Brand. I am not sure how much I can add there, but it 
is clearly important both that agencies continue to develop the 
culture of sharing information, which was a challenge after 9/
11, but also put into place the safeguards that will make sure 
that the information that they appropriately have and are 
sharing is safeguarded as well.
    Chairman Leahy. But you understand the real concern 
Americans have for----
    Ms. Brand. Absolutely.
    Chairman Leahy. And, Judge Wald, did you want to add 
anything to that?
    [The biographical information follows.]
    
    [GRAPHIC] [TIFF OMITTED] 
    
 STATEMENT OF HON. PATRICIA M. WALD, NOMINEE TO BE A MEMBER OF 
        THE PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

    Judge Wald. I would only add that I am happy with the prior 
Congress having put into our mandate 2000(e), the fact that we 
should provide advice on proposals to retain or enhance a 
particularly governmental power to ensure that the need for the 
power is balanced and that it has supervision, et cetera.
    I hope that the board will be able, as new technology 
requires new responses by the government, to pursue that 
particular power and to be at the initiation of those policies.
    I think I would take a note from the Supreme Court's--some 
of the language in the recent U.S. v. Jones case which dealt 
with the GPS and their notion that technology is coming along, 
we cannot really know in advance how to cope with all the new 
technologies, but we do have to be alert to all their various 
propensities, their various capabilities. And I hope that, if 
confirmed, we can follow through with the mandate in our 
statute.
    [The biographical information follows.]
    
    [GRAPHIC] [TIFF OMITTED] 
    
    Chairman Leahy. Thank you.
    We have been joined by Senator Whitehouse, a former 
Attorney General of his State and U.S. Attorney.
    Senator Whitehouse. Thank you, Chairman, and thank you to 
each one of you for being willing to step into the service of 
our country in this very important way. These are not easy 
questions, and I respect that you have been willing to take on 
this responsibility.
    I just came from the Senate floor where I gave some remarks 
about the cyber threat that the country faces and my concern 
that we pass adequate legislation to actually meet that threat. 
And I think that is going to be an issue that you are going to 
have to face, and I wanted to get a sense, I guess particularly 
from Mr. Dempsey, who has testified on this subject before us, 
both I think in this Committee and the Intelligence Committee, 
if I remember correctly, Jim.
    Let me start with what do you consider the scale of the 
cyber threat to our National and economic security to be.
    Mr. Dempsey. Good morning, Senator.
    Senator Whitehouse. Good morning.
    Mr. Dempsey. I agree with you that this is a very critical 
threat and one that could have obviously very broad 
implications for our economy as well as for our National 
security. And I also believe that further action by Congress is 
necessary and appropriate.
    One of the critical issues, actually, is the issue that we 
were just discussing to some extent with Chairman Leahy, which 
is the information-sharing issue. And it has been my personal 
view and my colleagues at CDT have testified to this fact--
although when I am on the board, if confirmed, I would only be 
acting in my personal capacity. But my personal view is that 
some changes to the privacy laws are necessary, in fact, to 
promote more information sharing.
    Senator Whitehouse. Do you accept that--one of the things 
we often hear in the Senate, particularly from people who want 
to attack environmental protection rules, is that there is a 
stark choice: You can either protect the environment, or you 
can have a good economy, but you cannot do both. I consider 
that to be a completely false choice, and I think that in some 
respects the choice between security and privacy is also a 
false choice. If you are a consumer and your credit card and 
Social Security number are right now up for sale on a Web site 
run by Estonian gangsters, you have a pretty serious privacy 
issue. If your art or your music or your design is presently 
being sold by foreign criminals without your permission, you 
presently have a pretty serious privacy issue about your own 
talents and ability to control your product. And when your 
company has to compete with a Chinese competitor who hacked 
into your computer and stole your R&D and is now making on the 
cheap the product that you spent hundreds of millions of 
dollars to design, you have got a pretty significant privacy 
issue.
    And so I assume that you all agree that the choice between 
security and privacy is also a false one in the sense that the 
choice between environment and economy is a false one.
    Mr. Dempsey. Absolutely, and I have dedicated much of my 
career to reconciling and balancing those two interests and 
working to achieve them, and if----
    Senator Whitehouse. Which sometimes actually are common 
interests.
    Mr. Dempsey. Exactly. And I think that that is a very 
powerful concept, actually, when you realize that many of the 
same actions which will protect privacy may enhance security 
and many of the same things that you would do from an 
operational or effectiveness standpoint are actually also good 
for privacy. So, if confirmed to this board, I would very much 
want to bring that perspective, and I know that the other 
members of the panel that we have talked about this all share 
this view of achieving both of those goals. That is our 
National goal, it is the stated goal in the goal in the 
legislation, and it is the goal that I am committed to.
    Senator Whitehouse. And, of course, we have to recognize 
that when you are cold and dark because the power grid is down 
or when you are alone because the communications networks you 
rely on have been hacked and are down or when you cannot get 
access to your bank account and the neighborhood store cannot 
process a purchase because the servers that process our 
financial transactions have been taken down, in those 
circumstances there are basic priorities in life that also 
emerge that need to be given considerable value in the 
equation, correct?
    Mr. Dempsey. Exactly.
    Senator Whitehouse. Thank you, Chairman.
    Chairman Leahy. I will place in the record a letter signed 
by a number of different groups urging the Senate Judiciary 
Committee to move forward quickly with the confirmation process 
so that the PCLOB is finally able to ``begin its important 
work,'' to quote them. I happen to agree with that, and I hope 
we can move quickly.
    [The letter submitted by Senator Leahy appears as a 
submission for the record.]
    From what you said earlier, Judge Wald, I understand you 
feel there is a need to balance government secrecy and the 
public's right to know in our National security matters.
    Judge Wald. Yes, sir.
    Chairman Leahy. Do you want to elaborate on that at all?
    Judge Wald. Well, I can elaborate basically mainly through 
my past experience. I have run into this problem both in my 
capacity as a judge on the court of appeals where we have many 
issues of national security that came before us. I also would 
like to mention that while I certainly do not feel as 
technologically expert as some of my hopefully future comrades 
here, in the D.C. Circuit, I am sure you are aware, we passed 
on most of the agency regulations, which included everything 
from the electric grids that Senator Whitehouse referred to 
down through pollution technology. So I have found that it is 
possible, and I think necessary, to look at some of these very 
complex issues from the point of view of the ordinary citizens 
that we are basically told to protect in the statute.
    As you know, Senator, I testified before this Committee 
about a bill which I believe you were a chief sponsor of, the 
state secrets bill, which dealt in that case with how state 
secrets are handled in the judicial process. And while I do not 
expect that this board will have any litigation problems--at 
least we hope not--I do think that the same kind of balance 
comes up again and again because most of our constitutional 
doctrines and our constitutional requirements, as well as many 
of the statutory requirements, are based in terms of balancing 
the need for something against the least restrictive kinds of 
alternatives for arriving at that. And I believe the board can 
do a great deal of work at an earlier stage in that process by 
being in on the evolution of many of these techniques and to 
review the rules and regulations that would govern them.
    Chairman Leahy. Thank you.
    I am going to submit some other questions for the record 
which I would ask you to respond to because I do want to put 
this on--I want to put this nomination on the agenda as soon as 
possible. Let me just ask you one question.
    What, in your view--and I will start with you, Mr. Medine--
is the most significant privacy issue that Americans face 
today? And how can the board address that?
    Mr. Medine. A challenging question.
    Chairman Leahy. I meant it to be.
    Mr. Medine. Our mandate is, again, the massive amounts of 
information that are being gathered by the government in its 
efforts to combat terrorism and, as you have pointed out and 
Senator Whitehouse has pointed out, how to balance those 
concerns with privacy and civil liberties of Americans who are 
subject to that information. And so our goal, if confirmed, 
would be to strike the right balance to make sure that privacy 
and civil liberties rights are protected, but at the same time 
making sure that our efforts to combat terrorism remain 
extremely effective.
    Chairman Leahy. Mr. Dempsey.
    Mr. Dempsey. Well, Mr. Chairman, as you well know, this 
technology that has become so woven into our law, both 
personally and professionally, is very powerful, and it 
provides businesses with a tool, and it provides the government 
with tools. And the government should certainly take advantage 
of those tools. But as we also know, the technology has its 
downsides, which in various ways policymakers, including this 
Committee, have been dealing with now really since the dawn of 
the digital age.
    So I think, if confirmed and if the board comes into 
existence, I think our challenge is to, as I said before, 
understand the needs of the agencies that are using these 
technology tools and to look at the whole question of 
effectiveness and how the information is being used, what 
outcomes it is yielding. And with that foundation, the 
foundation of the need and the utility, then looking at what 
are the adverse consequences, what are the unintended 
consequences, and how can you develop a set of checks and 
balances, a set of rules, guidelines, and due process 
protections, whatever, that would give us the benefit of the 
technology while mitigating or limiting the downsides of it.
    Chairman Leahy. Ms. Cook.
    Ms. Cook. I think that for a government to be effective, it 
needs the trust and consideration of its citizenry, and if 
there is even a perception that the government is misusing or 
abusing data to which it has access, that creates both a 
privacy problem and a security problem. I think this is 
recognized by the implementing legislation for this board--
which we have been referring to as ``P-CLOB,'' by the way. That 
was our attempt at a pronunciation of that. But this is 
reflected in the implementing legislation for PCLOB, and I 
think that is a starting point for this board, if we are 
confirmed.
    Chairman Leahy. Ms. Brand.
    Ms. Brand. Mr. Chairman, I think your question was what is 
the biggest privacy challenge that people are facing today. I 
suspect the biggest challenge that people are facing is that so 
much more information about them is in the public and is online 
than ever was the case before. I think probably the biggest 
challenge arises in areas that are outside of the board's 
jurisdiction in the consumer privacy area, for example, which 
is not something that we are mandated to look at. But the new 
technologies of, you know, Facebook, for example, things that 
law enforcement and individuals were not dealing with 15 years 
ago, create a challenge both for people in protecting their own 
privacy and for the government in dealing with how to get the 
information they need and how to implement appropriate privacy 
safeguards. So we will be looking at some of those issues on 
the board.
    Chairman Leahy. Judge Wald.
    Judge Wald. I agree with my companions at the table here 
that the aggregation of vast amounts of data and files on 
people, thereby evoking concern among them as to what is going 
to happen, is perhaps the biggest civil liberty problem that I 
am aware of. And I would only say that it seems to me that one 
of the functions of the board in its statute, one we do not 
talk about very much, is informing the public and public 
awareness. And I think it may do--the board may be able to 
perform a good function there in looking at all of these, 
whatever technologies we prioritize, with regard to some very 
simple questions: who collects it, what is collected, who has 
access to it once collected, and along those lines, what are 
the protections against any abuse, how long it is retained.
    I realize there will always be exceptions, and that is the 
highest security where all of those may not be public, but I 
think to the extent that we can reassure the public by being 
somewhat more transparent about the process, that will be a 
useful function.
    Chairman Leahy. I agree on the length of how long they can 
be retained. I will have a question I will be submitting to you 
on these new proposals for the five years. But Judge Wald, and 
Ms. Cook, what you said about people have to have trust in 
their government, too, and what they are doing, I think that is 
also part of this. Government works only if you trust it, and 
if people feel they cannot be trusted with information, then we 
do have problems.
    I have told this story before about Vermonters' attitude 
toward this. An article once written about me in a major 
newspaper--actually, I think it was the only article in 37 
years I have actually clipped out and framed because I enjoyed 
it so much. To put this in perspective, my wife and I live on a 
dirt road in an old farmhouse where we spent our honeymoon 50 
years ago. There is a lot of land on this little farm on a 
dead-end road, and neighboring farmers, successive generations, 
they have hayed our fields and what-not, they have known me 
since I was a child. And the whole thing goes like this:
    On a Saturday morning, a reporter in out-of-State car sees 
this farmer sitting on the porch and says, ``Does Senator Leahy 
live up this road? ''
    He said, ``Are you a relative of his? ''
    He said, ``No.''
    ''Are you a friend of his? ''
    ''Well, not really.''
    ''Is he expecting you? ''
    ''No.''
    ''Never heard of him.''
    I have a listed phone number at home, but people respect 
your privacy in Vermont. I just want, in a far more 
technologically advanced time, that our private sector is 
protected, too. I want our country to be protected, but I want 
our privacy to be protected, and I do not think those two 
concepts are contradictory. So I thank you all very much.
    Senator Whitehouse. Mr. Chairman, if I could just add one 
question for the record, it would be an optional question for 
the record. Nobody has to respond to it. But I saw an awful lot 
of heads nodding during my discussion with Mr. Dempsey. If 
there is any disagreement with the points that I made or with 
points that he made, I would be delighted if you would set that 
out so I am not just assuming agreement from silence. This will 
give people a chance to respond otherwise if they disagreed 
with that discussion.
    And thank you, Mr. Chairman, for this. Certainly you are 
one of the towering figures in privacy protection in this 
Committee's and this country's history, and it is great to be 
here with you on this occasion.
    Chairman Leahy. We have some experts here. We all want the 
same thing, to protect our privacy.
    I am going to another Committee meeting, and I am going to 
turn the gavel over to Senator Grassley, who has been here long 
enough to know how to do it.
    Senator Grassley. Thank you.
    Chairman Leahy. And I think we are going to have a couple 
other Members coming. I think Senator Franken may be coming to 
take over.
    Senator Grassley. You are probably going to the Agriculture 
Committee.
    Chairman Leahy. I am.
    Senator Grassley. I will try to be there soon after you get 
there.
    Chairman Leahy. And if Senator Franken is on his way, when 
you are ready to leave, if you can just recess subject to the 
call of the Chair.
    Senator Grassley. I will do that.
    Chairman Leahy. Thank you all very much, and good luck in 
this.
    Senator Grassley [presiding.] The first question would be 
to all of you, but I have a lead-in. The board has broad 
jurisdiction ``to review actions the executive branch takes to 
protect the Nation from terrorism, ensuring that the need for 
such action is balanced with the need to protect privacy and 
civil liberties.''
    One recent high-profile action involved the targeting and 
killing of American citizens abroad that were engaged in 
terrorist activity. I will start with Mr. Medine and then ask 
all of you: Do you believe that the President has the power to 
target and kill an American citizen abroad based upon due 
process that does not include judicial review? Why or why not? 
And I would appreciate it if we could have fairly short answers 
because we have five people I would like to get the answer 
from. Go ahead.
    Mr. Medine. Thank you, Senator Grassley. That is a very 
important and challenging issue that I have not had a chance to 
delve into, but if confirmed, I would expect that that is just 
the kind of issue that the board would look at and have the 
benefit of the legal analysis of the administration and other 
sources to consider that issue.
    Senator Grassley. Okay. Mr. Dempsey.
    Mr. Dempsey. Yes, Senator, I would have to say the same, 
that it is clearly a very important issue and one that a lot of 
attention has already been given to.
    I think in our prioritization of issues, to my mind it 
remains to be seen whether we take that one on at all, but if 
it is the desire of the board and of the agencies that we 
interface with that we do look into that, I am certainly going 
to approach that with an open mind and listen to the current 
thinking that has evolved both within the administration and 
within this Congress.
    Senator Grassley. Okay. Ms. Cook.
    Ms. Cook. I really cannot improve upon Mr. Dempsey's 
answer.
    Senator Grassley. Ms.--I call you ``Rachel.'' Ms. Brand.
    Ms. Brand. I cannot improve upon it either. I would just 
add that when we are--if we are confirmed, when we are on the 
board and have the clearances that we would need, it would be 
easier for us to make a judgment than sitting here not really 
knowing what is going on on the outside.
    Senator Grassley. Okay. Judge Wald.
    Judge Wald. I think that is a very complex question, and I 
would only note that I think the administration's legal 
memorandum or basis has not been made public yet, so I do not 
really know what their thinking is. I can only add that in my 
two years' experience abroad with international law in the 
International Tribunal, I realize that even international law 
has tried to catch up with new developments and does not have a 
yes or no answer very clearly.
    Senator Grassley. Along the same line--and this is in 
regard to whether you think the board has certain powers--do 
you believe the board would have the power to declare the 
President's actions in targeting American citizens abroad is a 
violation of constitutional civil rights? Mr. Medine.
    Mr. Medine. The board is tasked with providing oversight 
and advice, and so I do not think the board can really make 
affirmative decisions or mandates but can give its advice and 
its views on those kinds of questions, and would do so, 
obviously, very cautiously and carefully.
    Senator Grassley. Mr. Dempsey.
    Mr. Dempsey. Yes, Senator, I agree with that. I honestly do 
not know that we are going to be--if confirmed and if the board 
comes into existence, I do not know that we will be making 
declarations at all, and any advice we give is going to be very 
deliberative and based upon the evidence that we acquire.
    Senator Grassley. Ms. Cook.
    Ms. Cook. I agree with what has been said. I would also 
note that the statute does contemplate a situation in which the 
board does give advice and that advice is disregarded. The 
recourse for the board at that point is to report back to 
Congress. It is not a declaration. It is a report to Congress.
    Senator Grassley. Ms. Brand.
    Ms. Brand. I agree. The statute charges us with providing 
advice and expressing opinions, but it does not give us any 
authority to declare something unconstitutional beyond that.
    Senator Grassley. Judge Wald.
    [No response.]
    Senator Grassley. Okay. Then this question is more pointed. 
Do you support Attorney General Holder's public statement that 
due process does not necessarily include judicial process when 
it comes to national security? What national security matters 
require judicial process and which ones do not? Mr. Medine.
    Mr. Medine. As I have said, if confirmed, those are the 
kinds of issues we would have to look into very carefully, 
again, with the benefit of legal memoranda, confidential 
information, and our deliberations. So I am not prepared to 
answer that right now.
    Senator Grassley. Okay. Mr. Dempsey.
    Mr. Dempsey. Yes, I am sorry, Senator. Again, I am going to 
have to say that that is----
    Senator Grassley. Okay. Ms. Cook.
    Ms. Cook. I would defer this question as well.
    Senator Grassley. Ms. Rachel--or Ms. Brand.
    [Laughter.]
    Ms. Brand. I guess I would say that where process is due is 
very dependent upon the circumstances, so it is hard to answer 
that category.
    Senator Grassley. Judge Wald.
    Judge Wald. Ms. Brand's answer, there are many situations 
in which due process does not require a judicial type process, 
but what they are would depend completely on the facts and 
circumstances.
    Senator Grassley. Okay. A lead-in to the next question. The 
9/11 Commission found that the wall created in the 1990s by DOJ 
and memorialized by the Gorelick memo was a root cause of the 
failure to connect the dots. This memo limited use of 
information from foreign intelligence investigations in 
criminal cases and was misapplied and misinterpreted across the 
government. Breaking down that wall has been one of the great 
successes of the post-9/11 reorganization. In addition, the 9/
11 Commission found that the stovepiping of information among 
national security agencies was harmful to finding, tracking, 
and capturing terrorists, but the new age of information 
sharing has raised civil liberties and privacy concerns that 
the board is empowered to investigate.
    So, again, to each of you, as we did previously, we will 
start with Mr. Medine, how will you ensure that none of your 
work contributes to the creation of a new wall between law 
enforcement and intelligence?
    Mr. Medine. Senator, if confirmed, we would take our 
responsibilities very seriously that our actions would have 
great consequences. And so we are very sensitive to the 
motivations behind information collection. And so in the course 
of balancing privacy and civil liberties, at least I personally 
accept the views of the 9/11 Commission which said it is a 
false conflict to say we cannot have both security and privacy. 
So, if confirmed, our goal would be to work with the 
intelligence agencies to gather the information they need to do 
their mission, but at the same time take into account privacy 
and civil liberties.
    One of the best ways to do that is at the design stage, and 
the board, we hope, could be a resource if set up to help the 
agencies accomplish their goals but at the same time protect 
privacy.
    Senator Grassley. I guess I would ask each of you, Mr. 
Dempsey on through, to comment if you have got anything to add 
or disagreement with what was said.
    Mr. Dempsey. Certainly nothing to disagree with. I would 
just add that my view is that the wall is properly down, should 
remain down, that as you say it had become perverted. In my 
view, it served neither clearly national security nor did it 
really provide adequate--or any protection, really, for civil 
liberties. So we need to keep it down and find the ways other 
than that wall to protect the interest at stake here.
    Senator Grassley. Ms. Cook.
    Ms. Cook. I agree with Mr. Dempsey's position here. In 
2001, Congress spoke to this issue and took down the statutory 
basis for the wall. It has taken more than a decade, I think, 
of development of information-sharing policies, the development 
of which is also reflected in the statute setting up this board 
for our government to attempt to turn in a different direction 
akin to an aircraft carrier. So I think, if confirmed, we 
should be extraordinarily careful about taking actions or 
giving advice moving the other direction.
    Senator Grassley. Ms. Brand.
    Ms. Brand. I completely agree, and I would just add that it 
is important to remember how difficult it was to change the 
culture toward an information-sharing culture within the 
government, and so anything that would go in the other 
direction would be damaging.
    Senator Grassley. Judge Wald.
    Judge Wald. I think I am already on record as a member of 
President Bush's intelligence capabilities in which we looked 
at this problem and agreed with everything that my colleagues 
have said.
    Senator Grassley. And, again, with the same lead-in that I 
gave, this would be the last question on this issue. Many 
cybersecurity bills limit the use of cyber threat information 
for purposes outside cybersecurity, including national security 
and counterintelligence. Do you support re-creating the wall as 
part of cybersecurity legislation? Mr. Medine.
    Mr. Medine. Senator, I have not really examined that 
question as much, and so I do not have a position on that at 
this moment.
    Senator Grassley. If that is true for all of you--well, I 
better let you speak for yourself. Mr. Dempsey.
    Mr. Dempsey. I think we want to look at the cybersecurity 
issue very carefully. I think that Congress is going to have a 
say on that issue, I think, before this board comes into 
creation, and we will work with the authorities and decisions 
that Congress makes on that cybersecurity legislation.
    Senator Grassley. Okay. Ms. Cook.
    Ms. Cook. I agree with Mr. Dempsey that to the extent that 
Congress speaks specifically on this issue, that is our 
mandate. In the absence of specific direction, I anticipate 
that, if confirmed, we would follow the direction in the 
statute for this board as to how to approach these types of 
questions and the balancing that must be undertaken.
    Senator Grassley. Ms. Brand.
    Ms. Brand. I have nothing to add to that.
    Senator Grassley. And Judge Wald.
    Judge Wald. Nothing to add.
    Senator Grassley. Okay. I am going to submit the rest of my 
questions in writing. Maybe based upon what other Members ask 
you, I may submit some questions for answer in writing, and I 
am going to go up to the Agriculture Committee.
    Senator Franken. [presiding.] You do that. It is important.
    Thank you all. I am sorry I missed your testimony. I read 
it, though, and thank you all for being here. I want to thank 
the Ranking Member for holding down the fort here.
    Over the past 20 or 30 years, the ability of our government 
to monitor the everyday lives of our citizens has just 
exploded, and our privacy laws have not kept up. Today, right 
now, the police can track an American citizen through his cell 
phone without a warrant. The FBI is rolling out a facial 
recognition program. The FAA is expanding the use of pilotless 
drone for the government and the private sector without privacy 
safeguards. If anyone had predicted this in 1980 or 1990, they 
would have been told that they were reading too much science 
fiction.
    Unfortunately, since 2008, there really has been no such 
thing as the Privacy and Civil Liberties Oversight Board. This 
is really a bad thing, because we need this board. And though 
the PCLOB was established to prevent abuses of civil liberties 
in our war against terror, I hope and expect that we will see 
its mission expand beyond that. Because of that, my questions 
are going to go a little further afield than just the war on 
terror.
    My first question is for all of the nominees. Right now, 
the House and Senate are considering various cybersecurity 
bills, as the Ranking Member just mentioned. Some of these 
proposals would allow private companies to share threat 
information pulled from their customers' communications and 
files directly with the National Security Agency, which, as you 
know, is part of our Nation's military. These proposals also 
protect these companies from almost any legal liability for 
doing so.
    Do you think it is a good idea--and this is for all of you. 
Do you think it is a good idea to allow private companies to 
directly share and share with immunity information from their 
customers' communications with our Nation's military? 
Specifically, do you think this would be sufficiently 
protective of Americans' civil liberties? We will start with 
Mr. Medine.
    Mr. Medine. Thank you, Senator. The cybersecurity threats 
are certainly very real to our critical infrastructure and to 
many of our companies, and so it is understandable that the 
Congress would want to take a very close look at that. I have 
not had a chance to balance the various issues you have raised, 
but I would note that several of the bills that are pending 
would create a role for the PCLOB, as we call it, the Privacy 
and Civil Liberties Oversight Board, to give oversight to the 
privacy issues that are raised by information sharing between 
the private sector and the government. And so if we are 
confirmed and if the legislation is adopted, we--at least I--
could speak for myself. I would be happy to have that as a 
charge to oversee that process and make sure that privacy and 
civil liberties are protected when that information is shared.
    Senator Franken. Does anyone have a specific thought other 
than if you are confirmed that you would look at this? Anybody 
want to go beyond that at all, explore the idea at all, what 
the issues might be in a very noncommittal way so that you do 
not ruin your chances of being confirmed?
    [Laughter.]
    Mr. Dempsey. Senator, even despite that warning, I will 
rise to the bait a little bit here to say the following: As I 
said to Senator Grassley, if confirmed and if this board comes 
into creation, we will work with whatever Congress creates, and 
to the extent that the Congress authorizes information 
sharing--and I believe that any legislation that passes will 
include and probably should include information-sharing 
authority--we will work--certainly I commit to work within that 
framework and to make it work effectively.
    I think a separate question is what about between now and 
the time that legislation is enacted, and as I said to Senator 
Grassley, I think that in all likelihood that legislative 
process will play itself out before this board, even if we are 
confirmed, before this board would have an opportunity to weigh 
in on the legislation.
    The issues you raise are certainly the key issues to be 
addressed. My own view is that a scheme can be drafted that 
permits more information sharing than is currently permitted 
without it becoming a flow of information to the government 
that we would find undesirable. Again, my own view is that what 
I would call peer-to-peer sharing, that is, between the 
companies, is very important so that they can improve their own 
defenses. It is also important to get some of the information 
from the government to the private sector companies so that 
they can improve their capabilities based upon some of the 
unique insights that the government has.
    The hardest element of information sharing is private 
sector back to the government. But there is a role for the 
government to play, and there is some information clearly 
which, when the private sector sees it, in my view, should 
appropriately be shared with the government. And if we can 
properly define what that is, I think we can advance the issue 
of cybersecurity, which is so important to many Senators and to 
the country, and at the same time have the kinds of limits and 
checks and balances.
    Senator Franken. Ms. Cook.
    Ms. Cook. The statute, as currently drafted, is focused on 
government action, and as a general matter, I think it is 
always legitimate to ask questions about whether government 
should have access to information and what it does with that 
information once it has that information.
    That said, it is very difficult sitting here today to opine 
on specific circumstances because, as I understand it, much of 
the threat is classified. Much of what the agencies, what the 
government is actually facing is not public. So, if confirmed, 
I think we would have to do two things: one, meet with these 
folks to understand the threat that they are facing; and, two, 
listen to their thoughts on how they currently anticipate 
responding to those threats.
    Senator Franken. Judge Wald.
    Judge Wald. Senator, I would just add that--you asked if we 
thought it was a good idea to have this kind of channeling. 
Obviously, at least obvious to me, it is not a yes and no 
answer. You were not present, I think, earlier, but I suggested 
that from point of view much of it would depend on questions 
which I think some of the legislation in varying ways tends to 
answer, like, you know, who collects it, what is collected, 
what are the minimization or anonymization requirements, how 
long will it be kept, where can it be shared once it is 
retained. Many of those questions, I think, are the ones which 
will decide--we certainly--I think few of us would say a carte 
blanche kind of regime would be an optimal one.
    Senator Franken. Thank you, Judge Wald. I was not looking 
for a carte blanche. I was looking more for your thoughts about 
that.
    Judge Wald. I understand.
    Senator Franken. And I appreciate that.
    Ms. Brand.
    Ms. Brand. I echo actually what Judge Wald said. You 
referred to the content of communications, and in the 
electronic surveillance area, the contents communications are 
the most heavily protected thing, and rightfully so.
    Now, I have not studied the provisions of the cybersecurity 
legislation, so I do not know exactly how it provides for 
sharing, but as Ms. Cook said, one of the first things I would 
want to do, if confirmed, would be to better understand what 
the threat is that the government is facing and what the need 
for that sharing is, and then also look at the details of the 
legislation in terms of what protections are provided.
    Senator Franken. Very good. Thank you.
    Ms. Brand, in 2005, you wrote an op-ed in USA Today that 
offered a strong defense of the government's use of national 
security letters. You argued that these letters can only be 
used to obtain information related to an international 
terrorism investigation or espionage investigations, not for 
criminal investigations. As you know, the DOJ's Inspector 
General issued a number of scathing reports on the FBI's use of 
national security letters. These reports uncovered widespread 
abuse of this authority and indicated that many of the 143,000 
letters that were issued between 2003 and 2005 pertained to 
U.S. citizens who were not subject to any national security 
investigation.
    Ms. Brand, given the IG's findings of widespread abuse of 
national security letters, would you like to re-evaluate your 
statement that they were ``carefully, lawfully, and consistent 
with civil liberties'' ?
    Ms. Brand. Well, thank you, Senator Franken. A couple of 
points.
    There is a difference between the provisions of law and how 
they are implemented, and so I read that op-ed before the 
things that you mentioned came to light. Looking at the NSL 
statutes themselves, they contain many protections, and they 
are limited in the way that I wrote in that op-ed. As the 
Inspector General mentioned, there were some problems, 
significant problems with the way the NSLs were being used. My 
understanding--and this is after I left the government. My 
understanding is that those problems have been addressed and 
that the more recent IG reports reflect that they have been 
addressed adequately. So, again, there is a difference between 
the law and how it is implemented.
    Senator Franken. Okay. Well, thank you. That is a fair 
answer.
    Mr. Dempsey, in April of last year, the Department of 
Justice reported that the FBI made over 24,000 national 
security letter requests pertaining to 14,000 U.S. persons in 
2010. In 2009, these requests only involved 6,000 people, so 
the 2010 numbers are more than double the level of 2009. This 
strikes me as very problematic, especially because when I asked 
the Attorney General about this trend, he stated, ``To the 
extent these numbers may indicate an upward trend, we are 
unable to explain the increase because we do not collect 
statistics or other information that would enable us to discern 
the reasons for this increase.''
    This kind of bothers me given the IG reports that uncovered 
widespread abuse. Mr. Dempsey, what role do you think the board 
can play to bring greater transparency to the use of this 
powerful tool?
    Mr. Dempsey. Well, that is a good question, and I think, 
you know, the NSL authority is one of the authorities that I 
think is potentially within the scope of the board's authority, 
should we be confirmed. As Mr. Medine has said, we will have to 
carefully prioritize our issues. I think we will have and 
should have and the statute contemplates that a board such as 
this would have access to additional information. And I think 
we have to, if confirmed, dig in on certain issues. I am 
certainly hearing from you that the national security letter 
authority remains of concern to you, and that is important.
    So at this point, all I can say is that----
    Senator Franken. Is it important to you because it is 
important to me?
    Mr. Dempsey. Well, it is important to me independently.
    Senator Franken. Oh, good. Or maybe that is not so good.
    Mr. Dempsey. I have testified in the past on the issue, 
spent considerable time thinking about how that authority could 
be best defined and best used. I think it merits some--may 
merit some probing.
    Senator Franken. Okay. Well, let us move on.
    Mr. Dempsey, if you look at a record of someone's location, 
you can figure out where they go to church, where their kids go 
to school, what they do after work. This is sensitive 
information. You can put together who they are, I guess, from 
that. Thankfully, after the Jones case, police departments 
around the country will likely need to get a warrant before 
they install a GPS tracking device on someone's car. But 
recently the ACLU released a report showing that police 
departments around the country are not just tracking people's 
care; they are also getting detailed reports of people's 
movements from their smartphones and cell phones. The ACLU also 
found that police departments are usually not getting warrants. 
They are getting the information through a court order, or they 
are just issuing subpoenas for it.
    Mr. Dempsey, what do you think about this discrepancy? If I 
need to get a warrant to track you in your car, shouldn't I 
have to get a warrant to track your cell phone? And if anyone 
else wants to weigh in on that, please feel free.
    Mr. Dempsey. Certainly that is my personal view, and I have 
testified to that effect before this Committee. Certainly in 
the criminal law enforcement context, I think there is a 
separate question about how location tracking should work under 
FISA, and I think the first question would be how does it work 
under FISA, and I have literally no insight of how FISA applies 
to location tracking. I could speculate from a reading of the 
law, but in terms of how it is applied, I really have no idea. 
If confirmed, we might want to take a look at those issues.
    So on the law enforcement side, I have testified that a 
warrant is appropriate. Now, in terms of what position the 
board would take, I am one person. I will bring--undoubtedly, I 
will bring that position to the board if we choose to 
deliberate on that. I will also, if confirmed, listen very, 
very carefully, as I always do, listen very carefully to the 
concerns and interest and needs from the executive branch.
    Senator Franken. Is there anyone else who would like to 
weigh in on that?
    Judge Wald. I would just say that I think that the 
pervasiveness of cell phones in our society--you cannot walk 
down Connecticut Avenue without everybody having one at their 
ear--would make the question of regulation following the Jones 
act a very plausible one. And I would think that actually it 
would be among a list that we would consider when we are 
considering priorities after we get together.
    I think I am also on record as having signed a report which 
was in accord with Mr. Dempsey.
    Senator Franken. Thank you, Your Honor. Thank you, Former 
Your Honor.
    Oh, by the way, Ms. Brand, are you ``Your Honor'' now, or 
what are you?
    Ms. Brand. ``Ms. Brand'' is just fine.
    Senator Franken. Okay. Ms. Brand, I understand that you 
graduated from the University of Minnesota, Morris. Is that 
correct?
    Ms. Brand. I did.
    Senator Franken. Okay. So my chief of staff or my State 
director in Minnesota also graduated from there. In fact, we 
have something of what we call the ``Morris Mafia'' in my 
office in St. Paul. That is a great school.
    Ms. Brand. Yes, I agree.
    Senator Franken. I just--that was a waste of time.
    [Laughter.]
    Senator Franken. No, it was not.
    Mr. Medine, the Privacy and Civil Liberties Oversight Board 
is basically an independent oversight body, but unlike 
Congress, you cannot pass laws to address the problems that you 
see, and unlike the DOJ or the Federal Trade Commission or the 
Federal Communications Commission or any other federal 
enforcement agency, you also cannot bring a lawsuit to enforce 
your findings.
    Mr. Medine, if you are confirmed as Chair of the Privacy 
and Civil Liberties Oversight Board, what will you do to make 
sure that your findings are taken seriously? Would you ever 
consider resigning your post in protest, as Lanny Davis did in 
May 2007, if you felt that the executive branch was infringing 
upon the civil liberties of Americans?
    Mr. Medine. There are a number of ways that the board, if 
we are confirmed, would address those issues. One is to involve 
the public. We may not be able to issue regulations or engage 
in litigation, but we do have the authority to speak to the 
public and the Congress to express our views. We are required 
and would be happy, if confirmed, to report twice a year to the 
Congress, largely in an unclassified forum, or classified if 
necessary. We are directed to and would look forward to holding 
public hearings to involve the public in our efforts. But, most 
importantly, to blow the whistle if we see a problem out there 
and raise concerns, either within the executive branch, in a 
classified forum if necessary, but ideally in as unclassified a 
forum as possible to alert the public and have the powers of 
suasion and influence bring to bear on these issues.
    In terms of matters of principle, I think the issue that 
Lanny Davis faced was that the board was inside the White 
House, and I think the Congress has addressed that by making us 
an independent agency so we are not subject to undue influence 
by outside parties, and we as a bipartisan independent group 
can feel free to express our views with a term of office that 
ensures us some security, as you have as well, to express views 
about what we think are privacy and civil liberties concerns.
    Senator Franken. Good point.
    Judge Wald, by statute, the purpose of the Privacy and 
Civil Liberties Oversight Board is to ensure that privacy and 
civil liberties are ``appropriately considered'' in the 
development and implementation of laws, regulations, and 
executive branch policies. Unfortunately, the implementing 
statute of the PCLOB never really defines what constitutes 
appropriate consideration of privacy and civil liberties.
    Judge Wald, what do you think is involved in making sure 
that privacy and civil liberties are appropriately considered 
in developing legislation? And how might you act?
    Judge Wald. Senator, it is one of our greatest challenges, 
if confirmed, and I believe that one route we might consider, 
and I hope consider seriously, would be to engage in an 
intensive effort of contact with all of the agencies and 
related branches, whatever, bureaus, et cetera, that will be 
involved in the overall counterterrorism effort and try to 
establish from the very beginning--I do not mean this to sound 
like apple pie, but to engage with them in what I hope would be 
a trust-building effort so that they realize that we want to be 
of help to them, we want to add value to their operations, we 
are not headed toward waiting for them to develop something and 
then come in on a ``gotcha'' basis and say, ``We gotcha.'' But, 
rather, that as we move along, as Mr. Dempsey suggested, there 
may be technological solutions to some of these problems. There 
may be alternatives. But I think based on my own experience in 
government and even in courts, the whole business of engaging 
with people, listening to their problems, adding your piece, 
knowing that they can trust you to the degree where sometimes 
honest differences will come out, and those I expect the board 
will have to pursue its independent status and will take strong 
stands on what it believes in and try to carry them upward 
through the hierarchy, and if not, over to Congress.
    But I do believe working from the bottom up and building 
these relationships with the related agencies would be key to 
making sure that these considerations come in from the very 
beginning.
    Senator Franken. Well, thank you, Judge, and thank you all.
    I have a statement in support of Elisebeth Collins Cook 
that we will enter into the record.
    [The statement appears as a submission for the record.]
    Senator Franken. Those are my questions for now. I will 
submit more questions in writing for the record.
    Senator Franken. I sincerely hope that we can act on your 
nominations promptly. The hearing record will be open for a 
week for questions and other materials. Thank you all for your 
testimony and for being here.
    This hearing is adjourned.
    [Whereupon, at 11:30 a.m., the Committee was adjourned.]
    
                            A P P E N D I X

              Additional Material Submitted for the Record

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              Prepared Statement of Chairman Patrick Leahy

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                               QUESTIONS

         Questions submitted by Senator Leahy for David Medine

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         Questions submitted by Senator Leahy for James Dempsey

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        Questions submitted by Senator Grassley for David Medine

[GRAPHIC] [TIFF OMITTED] 

    Questions submitted by Senator Grassley for David Medine, James 
    Dempsey, Rachel Brand, Elisebeth Collins Cook, and Patricia Wald

[GRAPHIC] [TIFF OMITTED] 

   Questions submitted by Senator Klobuchar for David Medine, James 
    Dempsey, Rachel Brand, Elisebeth Collins Cook, and Patricia Wald

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         Questions submitted by Senator Leahy for David Medine

[GRAPHIC] [TIFF OMITTED] 

                                ANSWERS

  Responses by David Medine to questions submitted by Senator Grassley

[GRAPHIC] [TIFF OMITTED] 

  Responses by David Medine to questions submitted by Senator Grassley

[GRAPHIC] [TIFF OMITTED] 

 Responses by James Dempsey to questions submitted by Senators Leahy, 
                        Grassley, and Klobuchar

[GRAPHIC] [TIFF OMITTED] 
   Responses by Elisebeth C. Cook to questions submitted by Senators 
                         Grassley and Klobuchar

[GRAPHIC] [TIFF OMITTED] 
    Responses by Rachel L. Brand to questions submitted by Senators 
                         Grassley and Klobuchar

[GRAPHIC] [TIFF OMITTED] 
   Responses by Patricia M. Wald to questions submitted by Senators 
                         Grassley and Klobuchar

[GRAPHIC] [TIFF OMITTED] 

       MISCELLANEOUS ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Joint Letter to Senators Leahy and Grassley from Several Organizations; 
                          dated April 17, 2012
                          
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