    [Senate Hearing 113-879]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 113-879

                             CONTINUED OVERSIGHT OF
                    U.S. GOVERNMENT SURVEILLANCE AUTHORITIES

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED THIRTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                               DECEMBER 11, 2013

                                   __________

                              Serial No. J-113-42

                                   __________

             Printed for the use of the Committee on the Judiciary

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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking
    CHUCK SCHUMER, New York                  Member
    DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
    SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
    AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
    AL FRANKEN, Minnesota                JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
    MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
               Kristine Lucius, Chief Counsel and Staff Director
            Kolan Davis, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                          DECEMBER 11, 2013, 2:02 P.M.

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
        prepared statement...........................................    88

                                   WITNESSES

    Witness List.....................................................    39
    Alexander, Hon. Keith B., Director, National Security Agency,
      Fort Meade, Maryland...........................................     5
        prepared joint statement.....................................    40
    Black, Edward J., President and Chief Executive Officer, Computer
      and
      Communications Industry Association, Washington, DC............    28
        prepared statement...........................................    50
    Cole, Hon. James M., Deputy Attorney General, U.S. Department of
      Justice, Washington, DC........................................     7
        prepared joint statement.....................................    40
    Cordero, Carrie F., Director, National Security Studies, and
      Adjunct Professor of Law, Georgetown University Law Center,
      Washington, DC.................................................    32
        prepared statement...........................................    76
    Litt, Hon. Robert S., General Counsel, Office of the Director of
      National Intelligence, Washington, DC..........................     9
        prepared joint statement.....................................    40
    Sanchez, Julian, Research Fellow, Cato Institute, Washington, DC.    30
        prepared statement...........................................    66

                                   QUESTIONS

    Questions submitted jointly to Hon. Keith B. Alexander and Hon.
      James M. Cole by Senator Klobuchar.............................    96
    Questions submitted to Hon. Keith B. Alexander by Senator Leahy..    91
    Questions submitted to Edward J. Black by Senator Grassley.......    98
    Questions submitted to Edward J. Black by Senator Klobuchar......    97
    Questions submitted to Hon. James M. Cole by Senator Leahy.......    92
    Questions submitted to Carrie F. Cordero by Senator Grassley.....    99
    Questions submitted to Hon. Robert S. Litt by Senator Leahy......    94
    Questions submitted to Julian Sanchez by Senator Grassley........   100

                                    ANSWERS

    Responses of Hon. Keith B. Alexander and Hon. James M. Cole to
      questions submitted jointly by Senator Klobuchar...............   101
    [Note: At the time of printing, after several attempts to obtain
      responses to the written questions, the Committee had not
      received any communication from Hon. Keith B. Alexander to
      questions submitted by Senator Leahy.]
    Responses of Edward J. Black to questions submitted by Senator
      Grassley.......................................................   107
    Responses of Edward J. Black to questions submitted by Senator
      Klobuchar......................................................   105
    [Note: Responses of Hon. James M. Cole to questions for the
      record from Senator Leahy are classified and are, therefore,
      provided separately.]
    Responses of Carrie F. Cordero to questions submitted by Senator
      Grassley.......................................................   110
    [Note: Responses of Hon. Robert S. Litt to questions for the
      record from Senator Leahy are classified and are, therefore,
      provided separately.]
    Responses of Julian Sanchez to questions submitted by Senator
      Grassley.......................................................   114

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    Access et al., a letter on surveillance practices, November 21,
      2013, letter...................................................   118
    AOL et al., a letter on the USA Freedom Act, October 31, 2013,
      letter.........................................................   116
    AOL et al., an open letter to Washington, December 9, 2013,
      letter.........................................................   120
        attachment: Surveillance Reform Principles...................   121

                              CONTINUED OVERSIGHT
                               OF U.S. GOVERNMENT
                            SURVEILLANCE AUTHORITIES

                                  ----------

                          WEDNESDAY, DECEMBER 11, 2013

                                   United States Senate
                                     Committee on the Judiciary
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 2:02 p.m., in
    Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
    Leahy, Chairman of the Committee, presiding.
        Present: Senators Leahy, Whitehouse, Klobuchar, Franken,
    Blumenthal, and Grassley.

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

        Chairman Leahy. Okay. We can get started because I know
    with all the other things going on on the Hill, it is going to
    be a tad busy today. But I appreciate General Alexander, Mr.
    Cole, and Mr. Litt being here.
        We are going to be renewing our examination of Government
    surveillance activities, and it seems every time we have these,
    there has been a series of new revelations. The latest
    disclosures raise some significant questions about the scope
    and wisdom of our surveillance activities both at home and
    abroad. So it is clear that we have a lot more oversight work
    to do.
        In the last week, there have been press reports that the
    NSA is collecting billions of records a day of cell phone
    locations around the world and can track individuals and map
    their relationships. There have also been reports that the NSA
    is monitoring online video games, which just in the press
    reports raises a question:
    Because we can do something, does it really make sense to do
    it?
        Especially last month, the administration released a set of
    documents revealing details about yet another massive dragnet
    collection program in addition to the phone records program.
    And this time the NSA was gathering in bulk an enormous amount
    of Internet metadata under the pen register and trap and trace
    device authority in FISA. Now, I would just note that, just
    like Section 215, there is nothing in the pen register statute
    that expressly authorizes the dragnet collection of data on
    this scale.
        Although the Internet metadata collection program we are
    told is not currently operational, it resulted in a series of
    major compliance problems--just like the Section 215 program.
    According to the FISA Court, the NSA exceeded the scope of
    authorized acquisition not just once or twice, but
    ``continuously'' during many of the years the program was in
    operation. Again, another reason why we should have a lot more
    oversight and a lot more open oversight than we do have.
        The problems were so severe that the FISA Court ultimately
    suspended the program entirely for a period of time before
    approving its renewal. But once renewed, the Government
    asserted that this bulk collection was an important foreign
    intelligence tool--which is the claim it makes now about the
    Section 215 phone records. But then in 2011 the Government
    ended this ``valuable tool,'' as they called it, this Internet
    metadata program because, as Director Clapper explained, it was
    no longer meeting ``operational expectations.''
        It is important to note that the administration does not
    believe that there is any legal impediment to re-starting this
    bulk Internet data collection program if it--or a future
    administration--wanted to do so. The legal justification for
    this Internet metadata collection is troubling. As with the
    Section 215 program, the Internet metadata program was based on
    a ``relevance'' standard. And as with the Section 215 program,
    there is no adequate limiting principle to this legal
    rationale. The American people have been told that all of their
    phone records are relevant to counterterrorism investigations.
    Now they are told that all Internet metadata is also relevant
    and apparently fair game for the NSA to collect.
        In any country, this legal interpretation would be
    extraordinary. It goes beyond extraordinary in the United
    States. And it is going to have serious privacy and business
    implications in the future, particularly as new communications
    and data technologies are developed.
        So it should come as no surprise that the American
    technology industry is greatly concerned about these issues. I
    have heard from a number of companies who worry that their
    global competitiveness has been weakened and undermined. They
    say that American businesses stand to lose tens of billions of
    dollars in the coming years, and we need to make substantial
    reforms to our surveillance laws to rebuild confidence in the
    U.S. technology industry. This confidence can be thrown away
    very easily, and it is more difficult to get it back.
        Earlier this week, eight major technology companies--
    including Microsoft, Google, Apple, Facebook, and Yahoo--
    released a set of five principles for surveillance reform.
    Citing the ``urgent need to reform Government surveillance
    practices worldwide,'' the companies call for greater oversight
    and transparency, but they also advocate for limits that would
    require the Government to rely on targeted searches about
    specific individuals rather than the bulk collection of
    Internet communications from all of us.
        I have introduced the USA FREEDOM Act with Senator Lee here
    in the Senate, and our bill takes many of these steps. So I
    appreciate the support we have received from the technology
    industry, and I look forward to hearing their perspective on
    the second panel.
        Without objection, I will place in the record the open
    letter and reform principles from the technology companies, an
    earlier letter from technology companies applauding the USA
    FREEDOM Act, and a supportive letter from a coalition of civil
    society organizations, companies, trade associations and
    investors. And without objection, they will be part of the
    record.
        [The letters appear as submissions for the record.]
        Chairman Leahy. Support from the technology industry is
    representative of the broad-based, bipartisan support for our
    legislation. Organizations across the spectrum have endorsed
    the bill, from the ACLU to the NRA. I want to thank Senator
    Lee, Senator Durbin, Senator Blumenthal, and Senator Hirono for
    their cosponsorship.
        This is bipartisan, it is also bicameral legislation. It is
    a commonsense bill that makes real and necessary reforms. So I
    want input on the legislation, and I look forward to working on
    this in the coming months. I do want to thank our witnesses for
    being here today, especially after we had the unexpected
    cancellation in November.
        [The prepared statement of Chairman Leahy appears as a
    submission for the record.]
        Senator Grassley, I know you have half a dozen conflicts on
    your schedule. I thank you for being here.

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

        Senator Grassley. Thank you. Of course, this is a very
    important hearing, and you are doing the right thing by having
    the hearing because this is a subject of ongoing media
    attention and a lot of constituent interest.
        We last held a hearing in early October. Since then,
    reports have continued to surface in the media about possible
    overreach on the part of Government. Some of the reports may be
    more accurate than others, but I continue to believe that many
    of them call into serious question whether the law and other
    safeguards currently in place strike the right balance between
    protecting our civil liberties and our national security. And
    that balance is a very important balance, but it is a balance
    that, for personal liberty as well as national security, both
    have constitutional implications. You cannot forget one or the
    other.
        This is especially so concerning the public revelation that
    under Section 215 of the PATRIOT Act, the Government is
    collecting Americans' phone metadata in bulk.
        Why are many Americans so concerned? Well, it is not hard
    to find an example of what can happen to Americans' personal
    information when the Government overreaches, mismanages, and
    fails the American people.
        It has been 2 months since the administration tried to
    bring the Obamacare website online, and the American people are
    suffering under that issue. Many are finding they cannot keep
    the insurance plans they liked. Their premiums are rising, and
    uncertainty is growing about which parts of the law the
    President will decide to uphold.
        But in just these few months, we have already seen reports
    of incidents where Obamacare has not adequately protected
    Americans' personal data. In one reported instance in
    Minnesota, an insurance broker was accidentally provided the
    personal information of 2,400 people. Moreover, there are many
    unanswered questions about the website's ability to protect
    privacy going forward.
        Now, I expect--in fact, I understand that the standards of
    the dedicated professionals in our intelligence community do
    not compare to those of the contractors who failed to set up
    the website that I have referred to. But it is easy to see why
    many Americans tend to be skeptical then that the Government
    can adequately maintain their privacy when it collects vast
    amounts of information.
        The President's disengagement on these important matters
    does not help. He claims he was unaware of the problems with
    the Obamacare website before it was launched. Now reports say
    he was unaware of the reported surveillance of many world
    leaders.
        As I did back in October, I call on the President to lead.
    Many of these programs are critical to our national security.
    The President needs to contribute to the national debate by
    publicly explaining and defending them. For instance, a visit
    to Fort Meade would help the morale a great deal.
        It is good that there are numerous reform proposals that
    this Committee will have the opportunity to consider going
    forward. I am convinced there is a role for greater
    transparency, oversight, and accountability in the FISA
    process. The public trust in our intelligence community must be
    rebuilt. And, of course, we must ensure that intelligence
    authorities are exercised in a manner consistent with our laws
    and the Constitution.
        These proposals should be subject to the same rigorous and
    critical examination to which we are subjecting the
    surveillance programs themselves.
        These proposals should address the specific concerns that
    have been brought to light, not relitigate old and irrelevant
    legislative battles.
        These proposals should not provide a terrorist abroad with
    rights similar to those of a U.S. citizen here at home.
        These proposals should not make it more burdensome for
    authorities to investigate a terrorist than it is to
    investigate a common criminal.
        And these proposals should not return us to a pre-September
    11th posture. Then we did not adequately weigh the dedication,
    intelligence, and lethality of our foreign enemies, who are
    undoubtedly watching the debate very closely.
        The balance between protecting individual liberties and our
    national security is a delicate one, and reasonable people can
    disagree about precisely where that balance must be struck, and
    that is our responsibility here in the Congress of the United
    States.
        Our witnesses on both panels today represent a wide range
    of views, and I look forward to hearing their point of view.
    And before you start, Mr. Chairman, I would like to explain
    further something you brought up that I had a conflict. At
    2:30, Secretaries Kerry and Lew are briefing Senators about the
    classified details of the controversial nuclear agreement the
    Obama administration has made with Iran. I am skeptical of that
    agreement, but I have a responsibility to learn more about it.
    But I have to weigh going to that hearing to be here because I
    also, as leader of the Republicans, know the importance of FISA
    and whatever work is done there for our national security as
    well.
        The Chairman did accommodate us to some extent by moving
    this ahead by a half-hour. I am going to stay beyond that half-
    hour anyway to ask questions, at least of the first panel. I
    had asked the meeting to be rescheduled, and it is the
    Chairman's prerogative to lead this Committee as he sees the
    necessity to do it. But I think it is too bad that this could
    not be worked out so that Senators could attend both of these
    matters together.
        Thank you, Mr. Chairman.
        Chairman Leahy. Well, thank you, and I wish I could be at
    the other hearing, too, but we have had to reschedule this once
    already, and everybody has agreed to be here today, and I did
    not think it was fair to our witnesses to reschedule again.
    Besides, a lot of these classified briefings, like the one you
    just referred to, I have had to miss in the past because of
    conflicts, but I find I can usually read almost all of what was
    said there in the paper the next day anyway, usually in more
    detail.
        Senator Grassley. I agree with you on that point. But also
    it kind of makes a mockery of what they call ``secured.''
        Chairman Leahy. Well, it depends upon whose ox is being
    gored, I guess. It is more of a question of who can get it out
    quickest. I do recall one of these very highly classified
    matters that we had, and the very first thing that came up
    marked top secret was a photograph of the cover of one of that
    week's news magazines, and it went downhill from there.
        Our first witness is General Keith Alexander, Director of
    the National Security Agency and head of U.S. Cyber Command. He
    began his service at the U.S. Military Academy at West Point,
    previously served as the commanding general of the U.S. Army
    Intelligence and Security Command, and Director of
    Intelligence, U.S. Central Command. And, of course, one,
    General, I thank you for being here. Your full statement will
    be made part of the record, but in the time you have, please
    feel free to hit any points you want or summarize in any way
    you would like.

            STATEMENT OF HON. KEITH B. ALEXANDER, DIRECTOR,
             NATIONAL SECURITY AGENCY, FORT MEADE, MARYLAND

        General Alexander. Chairman, thank you, and I will keep my
    opening remarks short, but I would like to hit a few key
    things.
        First, NSA is a foreign intelligence agency. Those action
    tools that we do are to connect what we know about foreign
    intelligence to what is going on here in the United States. We
    need tools to bring that together. I want to talk briefly about
    some of those tools.
        Some of those tools, like Section 215, in my opinion and I
    think in the Court's, our community, were authorized by
    Congress. They are legal, they are necessary, and they have
    been effective.
        From my perspective, the threats are growing. When we look
    at what is going on in Iraq today, what is going on in Syria,
    the amount of people killed from 1 September to 3 December is
    over 5,000 from terrorist-related acts in Iraq, Syria, and
    several other countries around the world.
        In Iraq alone, in 2012 the total number killed were 2,400.
    From 1 September to 3 December, that has risen to 2,200-plus in
    a 3-month period. It is on the verge of a sectarian conflict.
    The crisis in the Middle East is growing, and the threat to us
    from terrorist activities, their safe havens, and those being
    radicalized are growing.
        What we found out in 9/11--and I go back, Senator Grassley,
    to your comments--we cannot go back to a pre-9/11 moment. Sir,
    I absolutely agree with that. So we have to find out what is
    the right way for our Nation to defend ourselves and our allies
    and protect civil liberties and privacy. I think the way we are
    doing Section 215 is actually a good model, not just for our
    country but for the rest of the world. It has the courts,
    Congress, and the administration all involved.
        Why do I say that? The reason is if you look at all the
    information that is out there, the billions and billions of
    books of information that are out there, there is no viable way
    to go through that information if you do not use metadata. In
    this case, metadata is a way of knowing where those books are
    in the library and a way of focusing our collection, the same
    that our allies do, to look at where are the bad books.
        From our perspective, from the National Security Agency's
    perspective, what we do is get great insights into the bad
    actors overseas. Armed with that information, we can take the
    information, the to-from--and what I did is I put that on a
    little card. It says the from number, the to number, the date,
    time group of the call, and the duration. That is the elements
    of information we use in the 215. There is no content. There
    are no names, no email addresses.
        From my perspective, that is the least intrusive way that
    we can do this. If we could come up with a better way, we ought
    to put it on the table and argue our way through it.
        The issue that I see right now is there is not a better
    way. What we have come up with is can we change one.
        But, Senator Grassley, you brought out a great point: 9/11,
    we could not connect the dots because we did not have this
    capability to say someone outside the United States is trying
    to talk to someone inside the United States.
        Chairman Leahy. We also had people in the administration
    that refused to listen to FBI agents who had picked up on what
    was happening here in the United States when they were told it
    was not important, even though anybody with a brain in their
    head would have known it was. But go ahead. I understand your
    point. And let us stick to the facts. We are not talking about
    a library. I had my first library card when I was 4 years old.
    I understand libraries. Let us talk about the NSA.
        General Alexander. Well, I think the important part for us,
    Mr. Chairman, is: How do you bring information that you know
    from outside the country to that which we have inside? How do
    you connect the dots? And that is the issue with the metadata
    program. There is no other way that we know of to connect the
    dots.
        And so that gets us back to, do we not do that at all.
    Given that the threat is growing, I believe that is, an
    unacceptable risk to our country. So what we have to do is can
    we do more on the oversight and compliance? And there are
    things that are being looked at. But taking these programs off
    the table from my perspective is absolutely not the thing to
    do.
        I do agree with this discussion with industry, as well,
    that you brought up, Chairman. Industry ought to be a player in
    here. They have been hurt by this, and I think unfairly hurt.
    We ought to put this on the table from two perspectives.
    Industry has some technical capabilities that may be better
    than what we have. If they have ideas of what we could do
    better to protect this Nation and our civil liberties and
    privacy, we should put it on the table. And I think we should
    have a way of bringing Government and industry together for the
    good of the Nation, and we ought to take those steps.
        So, Mr. Chairman, I just want to end with this statement:
    We are a foreign intelligence agency. Our job is to figure out
    what is going on outside the United States and to provide that
    level of information to the FBI and others who are operating
    inside the United States. To date, we have not been able to
    come up with a better way of doing it.
        I am not wed, I do not think anybody at NSA or the
    administration is wed to a specific program, but we do need
    something to help connect the dots, something that could help
    defend this country. And I think these programs have been
    effective.
        That is all I have, Mr. Chairman.
        Mr. Cole. Thank you, Chairman Leahy, Ranking Member
    Grassley----
        Chairman Leahy. I should have done an introduction. I
    apologize.
        Mr. Cole. Quite all right.
        Chairman Leahy. James Cole first joined the Department of
    Justice in 1979, served for 13 years in the Criminal Division.
    He later became Deputy Chief of the Division's Public Integrity
    Section. Before entering private practice, he was sworn in as
    the Deputy Attorney General on January 3, 2011.
        Please go ahead, Mr. Cole.

    STATEMENT OF HON. JAMES M. COLE, DEPUTY ATTORNEY GENERAL, U.S.
                 DEPARTMENT OF JUSTICE, WASHINGTON, DC

        Mr. Cole. Thank you, Chairman Leahy, Ranking Member
    Grassley, and distinguished Members of the Committee, for
    inviting us here to talk about the Foreign Intelligence
    Surveillance Act. I am going to focus my opening remarks just
    on the 215 program.
        As has been mentioned, it involves the collection of
    metadata from telephone calls, including the number that was
    dialed, the date, and the time of the call and the length of
    the call. It does not include the content of any phone calls,
    any names, addresses, or financial information of any party to
    the call. And under 215 it does not include any cell site
    location information.
        The Government can search this data only if it has a
    reasonable, articulable suspicion that the phone number being
    searched is associated with certain terrorist organizations.
    Only a small number of analysts can make that determination,
    and that determination must be documented so it can be reviewed
    by a supervisor and later reviewed for compliance purposes. And
    only a small portion of these records actually end up being
    searched.
        This program is conducted pursuant to authorization by the
    FISA Court. Since the Court originally authorized this program
    back in 2006, it has been reapproved on 35 separate occasions
    by 15 individual Article III judges on the FISA Court.
        Oversight of the 215 program involves all three branches of
    Government. Within the executive branch, numerous entities in
    NSA, the Department of Justice, and the Office of the Director
    of National Intelligence are involved in assessing compliance.
    We report any compliance incidents to the FISA Court
    immediately. With respect to Congress, we have reported any
    significant compliance problems, such as those uncovered in
    2009, to the Intelligence and Judiciary Committees of both
    Houses. Documents related to those 2009 problems have since
    been declassified and have been released by the DNI.
        Over the past several months, we have also gone to great
    lengths to better explain publicly why the program is lawful.
    Under Section 215, there must be reasonable grounds to believe
    that the records that are collected are relevant to an
    authorized investigation to protect against international
    terrorism.
        As both the FISA Court's opinions and our own 22-page white
    paper explain, ``relevant'' is a very broad term. In its
    ordinary sense, information is relevant to an investigation if
    it bears upon or is pertinent to that investigation. Courts
    have held that large repositories of information can satisfy a
    relevance standard where the search of the whole repository is
    necessary in order to identify the critical documents. This is
    precisely the rationale that underlies the 215 collection
    program, and it was recognized by the FISA Court.
        The Court found that the entire collection of bulk metadata
    is relevant to an authorized international terrorism
    investigation because it is necessary, a necessary part of the
    process to allow NSA to identify phone calls between terrorists
    and other persons.
        As Judge Eagan's recent opinion reauthorizing the program
    recognized, and I quote, ``Because the subset of terrorist
    communications is ultimately contained within the whole of the
    metadata produced but can only be found after the production is
    aggregated and then queried using identifiers determined to be
    associated with the identified international terrorist
    organizations, the whole production is relevant to the ongoing
    investigation out of necessity.''
        In addition to complying with 215, NSA's program must also
    comply with the Fourth Amendment of the Constitution. Here the
    Supreme Court's decision in Smith v. Maryland is directly on
    point.
        In Smith, the Court held that telephone users who convey
    information to phone companies for the purpose of routing their
    calls have no reasonable expectation of privacy in that
    information.
        Now, the Smith case was a number of years ago, and some
    have questioned the applicability of it because it did not
    concern a situation where the Government collected and retained
    the bulk metadata and aggregated it all in one place. However,
    a recent opinion of the FISA Court addressed this specific
    issue, and it noted, ``Where one individual does not have a
    Fourth Amendment interest, grouping together a large number of
    similarly situated individuals cannot result in the Fourth
    Amendment interest springing into existence.''
        I understand that there is interest in legislating reforms
    to the 215 program and other aspects of FISA, including the
    nature of the Court process itself. We welcome this public
    debate and this public discussion about whether the current
    version of 215 and other provisions of FISA strike the right
    balance between our national security and the privacy of our
    citizens, both of which are important and have to be honored.
    We look forward to working with the Committee to address these
    issues and to find the right balance.
        Thank you, Mr. Chairman.
        Chairman Leahy. Thank you. Thank you very much, Mr. Cole.
        And our last witness on this panel will be Robert Litt,
    confirmed by the Senate in 2009 to serve as General Counsel of
    the Office of the Director of National Intelligence. Prior to
    joining the ODNI, he was a partner with the law firm of Arnold
    and Porter, worked at the Department of Justice, and has
    testified before this Committee before. Welcome back, Mr. Litt.

     STATEMENT OF HON. ROBERT S. LITT, GENERAL COUNSEL, OFFICE OF
         THE DIRECTOR OF NATIONAL INTELLIGENCE, WASHINGTON, DC

        Mr. Litt. Thank you, Mr. Chairman, Ranking Member Grassley,
    Members of the Committee. We do appreciate the opportunity to
    appear today to continue our discussions about the intelligence
    activities that are conducted pursuant to the Foreign
    Intelligence Surveillance Act.
        It is critical to assume that the public dialogue on this
    topic is grounded in fact rather than in misconceptions, and
    we, therefore, understand the importance of helping the public
    to understand how the intelligence community actually uses the
    legal authorities provided by Congress to gather foreign
    intelligence and the extent to which there is vigorous
    oversight of those activities to ensure that they comply with
    the law.
        As you know, the President directed the intelligence
    community to make as much information as possible available
    about certain intelligence programs that were the subject of
    unauthorized disclosure, consistent with protecting national
    security and sensitive sources and methods. Since that time,
    the Director of National Intelligence has declassified and
    released thousands of pages of documents about these programs,
    including court orders and a variety of other documents. We are
    continuing to do so. These documents demonstrate both that the
    programs were authorized by law and that they were subject to
    vigorous oversight, as General Alexander said, by all three
    branches of Government.
        It is important to emphasize that this information was
    properly classified. It has been declassified only because in
    the present circumstances the public interest in
    declassification outweighs the national security concerns that
    originally prompted classification.
        In addition to declassifying documents, we have taken
    significant steps to allow the public to understand the extent
    to which we use the authorities in FISA going forward.
    Specifically, as we describe in more detail in the written
    statement that we submitted for the record, the Government will
    release on an annual basis the total number of orders issued
    under various FISA authorities and the total number of targets
    affected by those orders. Moreover, we recognize that it is
    important for companies to be able to reassure their customers
    about how often or, more precisely, how rarely the companies
    provide information to the Government. And so we have agreed to
    allow the companies to report the total number of law
    enforcement and national security legal demands they receive
    each year and the number of accounts affected by those orders.
    We believe that these steps strike the proper balance between
    providing the public relevant information about the use of
    these legal authorities while at the same time protecting
    important collection capabilities.
        A number of bills that have been introduced in Congress,
    including the USA FREEDOM Act, which you have sponsored, Mr.
    Chairman, contain provisions that would require or authorize
    additional disclosures. We share the goals that these laws and
    bills provide of providing the public with greater insight into
    the Government's use of FISA authorities. However, we are
    concerned that some of the specific proposals raise significant
    practical or operational concerns.
        In particular, we need to make sure that any disclosures
    are operationally feasible with a reasonable degree of effort,
    and that they would provide meaningful information to the
    public. We also need to make sure that the disclosures do not
    compromise significant intelligence collection capabilities by
    providing our adversaries information that they can use to
    avoid surveillance.
        But, Mr. Chairman, I do want to emphasize our commitment to
    work with this Committee and others to ensure the maximum
    possible transparency about our intelligence activities
    consistent with national security. We are open to considering
    any proposals so long as they are feasible and do not
    compromise our ability to collect the information we need to
    protect our Nation and its allies. And we have been in
    discussion with the staff of this Committee and the
    Intelligence Committee on some proposals and some alternate
    means of trying to provide greater transparency while
    protecting our critical sources and methods.
        We look forward to continuing to work with you in this
    regard. Thank you.
        [The prepared joint statement of General Alexander, Mr.
    Cole, and Mr. Litt appears as a submission for the record.]
        Chairman Leahy. Thank you, Mr. Litt.
        Normally I would ask questions at this point, but I am
    going to yield first to Senator Grassley, who does want to make
    the other briefing. Senator Grassley.
        Senator Grassley. Yes, and I appreciate very much that
    accommodation.
        Mr. Cole, back on October 2nd, I wrote a letter to the
    Attorney General requesting information about cases of willful
    and intentional abuse of authority by NSA employees. Some of
    them were referred to the Justice Department for prosecution. I
    would like to know whether these cases were prosecuted and, if
    not, why not. I asked for a response by December 1st. Do you
    know the answers to these questions? And if not, when would I
    be able to expect an answer?
        Mr. Cole. I do not know the specific answers on each of the
    ones you cited, Senator Grassley, but we are in the process of
    collecting that information. A number of them were not
    prosecuted. A number of them involved the risk of further
    damaging the national security by having to release more
    information. Other sanctions were found that were adequate in
    those cases. But we are trying to put together that information
    so that we can give you an assessment of what happened in those
    cases.
        Senator Grassley. I thank you for that courtesy.
        Mr. Cole, I want to make sure that I understand the
    administration's positions on the USA FREEDOM Act. In your
    prepared testimony that bill is not specifically mentioned, but
    in your testimony you state that the administration ``does not
    support legislation that would have the effect of ending the .
    . . 215 program'' because the administration maintained that it
    is lawful and valuable to protect national security. The answer
    may be obvious, but I want to be clear for the record. Do you
    understand the USA FREEDOM Act to be ``legislation that would
    have the effect of ending the Section 215 program'' that you
    described in your testimony?
        Mr. Cole. Senator, you have kind of asked me a legal
    question. I am going to have to give you a bit of a lawyer's
    answer. It is going to depend on how the court--if the USA
    FREEDOM Act becomes law, it is going to depend on how the court
    interprets any number of the provisions that are in it and any
    number of the additional requirements that are contained in it
    over what is here and now. I think it will have an impact on
    what is currently done under 215, but 215 covers more than just
    bulk data collection. It covers individualized Business Records
    acquisition. And depending on what kinds of records are being
    sought, what the facts and circumstances are, will depend on
    the nature and extent of the FREEDOM Act's impact on it.
        On the bulk data, I think it is going to be a question of
    the court's interpretation. Right now the interpretation of the
    word ``relevant'' is a broad interpretation. Adding
    ``pertinent'' to a foreign agent or somebody in contact with a
    foreign agent could be another way of talking about relevance
    as it is right now. We would have to see how broadly the court
    interprets that, or how narrowly.
        Senator Grassley. I appreciate your legal view. Just from
    the standpoint of how our process of legislation works and
    since the President is Commander-in-Chief, the number one
    person in charge of our national security, I would hope that we
    would have a firm statement from the administration of whether
    or not this legislation is harmful or not, and it would be
    better to know that before courts get a decision, which would
    be years down the road, than it would be now. And I think that
    the administration owes that to all of us, both proponents and
    opponents, of what that situation is.
        My other question to you as well, other than 215, the USA
    FREEDOM Act would also make other significant changes to the
    tools used to investigate terrorism and espionage cases. For
    example, the bill would raise the legal standard to issue
    national security letters to require that the information
    sought be both relevant and material as well as the information
    pertained directly or indirectly to a foreign power or an agent
    of that power. This is a change from the current standard,
    which is mere relevance.
        Question: What operational effect, if any, will these
    changes have on the ability of your Department and the FBI to
    protect the Nation from terrorist attacks?
        Mr. Cole. Senator Grassley, probably the largest effect
    that it would have on the NSL situation is the addition of the
    requirement that it be relevant to or there is information that
    it is connected to a foreign power. Many times NSLs are used in
    a very preliminary stage of an investigation in order to
    determine if the person who is being looked at is, in fact, a
    foreign power or an agent of a foreign power. And so the
    question is sometimes being answered through the use of
    national security letters. If you must answer that question
    before you can get a national security letter, it would reduce
    the availability of that tool in terrorism investigations.
        Senator Grassley. Thank you, Mr. Chairman. And I have two
    questions that I will submit for answer in writing--can I ask
    one more?
        Chairman Leahy. Certainly.
        Senator Grassley. Mr. Litt, one of the issues this
    Committee has been looking at is whether or how to add more of
    an adversarial element in the FISA Court process. The Chairman
    invited a former FISA Court judge to be a witness at our
    hearing in July. Judge James Carr explained in his answers to
    questions for the record that he did ``not believe that having
    independent counsel review all Government applications before
    the FISC would be necessary or desirable.'' This appears to be
    an approach reflected in the legislation that was passed by the
    Senate Intelligence Committee. In contrast, as I understand it,
    the FREEDOM Act requires the Government to provide every
    application to the advocate.
        Question: Between the different advocates proposals in the
    USA FREEDOM Act and the Senate Intelligence Committee bill,
    which do you believe is a better approach to making the FISA
    Court process more adversarial? And why?
        Mr. Litt. So, Senator Grassley, since the Department of
    Justice is the agency that really conducts the litigation
    before the FISA Court, I am going to defer the answer to that
    to Deputy Attorney General Cole, although I will say that there
    has been a lot of interagency discussion about the appropriate
    approach there, which I think he can lay out.
        Senator Grassley. Okay.
        Mr. Cole. Senator Grassley, as I think we have said on a
    number of occasions, we find that there is a use and a value to
    having an independent legal representative in the FISA Court
    process in the appropriate circumstances. We would not advocate
    or recommend having one for all of the procedures that go on
    there. Many of them, like in normal criminal cases, are
    routinely done in an ex parte basis. They are done usually with
    a fair degree of expediency and efficiency, and we think a
    permanent public advocate might impede that process some of it
    is applying to every single thing that is there. There would
    also be, I think, some constitutional issues of standing for a
    public advocate on every single issue.
        We would propose that it be an amicus appointed by the
    Court. When the Court feels that they have the need for another
    perspective and another point of view, when it is a significant
    issue involving privacy issues, civil liberty issues that the
    Court would like to have another view on, that would be a good
    example of a time. Something like the bulk data collection
    programs where somebody may want to have a view of what the law
    is other than the Government's view, we think that would be a
    good area.
        But I think the Court is in the best position to determine
    when and where it is going to need those kinds of things and do
    it only for those issues.
        Senator Grassley. General Alexander, it will take you 5
    seconds to answer this question. At our hearing in July, your
    Deputy Director testified that the NSA was conducting an
    investigation into how so highly classified information was
    compromised by a single contractor. He stated the NSA would
    report back to Congress about individual and systemic
    responsibilities of what occurred. When can we expect that
    report?
        General Alexander. We will send that up right away. We have
    actually taken 41 different actions, and we will get you a
    report on what those are.
        Chairman Leahy. What is ``right away''?
        General Alexander. Over the next week.
        Chairman Leahy. Okay. So we will have it by Wednesday.
        Senator Grassley. Thank you, Mr. Chairman.
        General Alexander. Next Wednesday.
        Chairman Leahy. By then. Thank you.
        Senator Grassley. Thank you, Mr. Chairman.
        Chairman Leahy. Thank you.
        Going back to the penultimate question about 215 phone
    records and FISA Courts or FISC courts and so on, it has been
    said these have always been authorized, and they have never
    been up on appeal. We have never had an appellate court rule on
    them. The bill that I have does not require an advocate in
    every FISA Court case. It would be only when the Court agreed
    that it might be helpful.
        We also have statements from judges that, if that was the
    case, there may be more credibility with the courts, or at
    least more of a willingness on the part of the public to accept
    courts that operate in secret.
        Would you agree with that, Mr. Cole?
        Mr. Cole. I think that that would help the public have
    better confidence. I think the Court does run well. I think
    there is a great deal of independence from my experience with
    the Court in its rulings. It is not by any means a rubber
    stamp. But I think there is a value with the public to having
    some other person, some other advocate in the appropriate kinds
    of cases, and I think there is a value to that, Senator, Mr.
    Chairman. So I think that is a good idea as long as we keep it
    in the right matters. So I would agree with that.
        Chairman Leahy. And Senator Klobuchar will submit her
    questions for the record, and I would ask them to be answered
    as quickly as possible.
        [The questions of Senator Klobuchar appears as a submission
    for the record.]
        Chairman Leahy. Now, we get in these press accounts that
    the NSA is collecting billions of cell phone location records
    every day and is reportedly gathering information or
    communications information from online gaming sites. The
    stories suggest the activities are directed abroad. We know the
    NSA was making plans to obtain cell site location information
    under Section 215. We also know that the NSA engaged in bulk
    collection of Internet metadata under the FISA pen register
    statute. So it suggests to me that under that kind of a legal
    interpretation of FISA, the NSA could collect the same massive
    amounts of information domestically that these recent stories
    suggest they are collecting abroad.
        So, Mr. Litt, maybe I should direct this first at you. I
    know the program authorized the bulk collection of email and
    other Internet metadata was shut down in 2011 because it was
    not operationally useful. But under current law, would the NSA
    be able to restart the bulk collection of Internet data?
        Mr. Litt. I think that if the NSA and the Department of
    Justice were able to make a showing to the FISA Court that the
    collection of Internet metadata in bulk, which, of course, is a
    category of information that is not protected by the Fourth
    Amendment, that if it were relevant to an authorized
    investigation and could convince the FISA Court of that, then,
    yes, it would be authorized.
        Chairman Leahy. It was shut down before because of not
    being operationally useful. Would you have to go to the Court?
        Mr. Litt. I believe we would have to----
        Chairman Leahy. To restart the bulk collection of Internet
    data, would you have to go to the Court?
        Mr. Litt. I believe we would.
        Chairman Leahy. Mr. Cole?
        Mr. Cole. Yes, Mr. Chairman. Under the FISA statute, I
    think you would have to get Court authority, just like you
    would under 215, to be able to do that, and that would only
    last for a period of time and have to be renewed periodically.
    So there is no active authority for it right now.
        Chairman Leahy. Thank you. And setting aside any
    technological limitations, would the FISA pen register statute
    authorize you to obtain all Internet metadata, not just email
    metadata?
        Mr. Cole. I think that is correct, but, again, it would be
    limited to the metadata in that regard.
        Mr. Litt. And if I could just add on that----
        Chairman Leahy. If I can just make sure I understand Mr.
    Cole's answer. So the only limitation would be that it be
    metadata?
        Mr. Cole. It cannot be content. It cannot be--and the
    latest order of the FISA Court under 215, it specifically
    excluded cell site location as well.
        Chairman Leahy. Thank you.
        Mr. Litt. I was going to add only that you would have to
    show that the category of metadata that you are seeking was, in
    fact, relevant to the authorized investigation.
        Chairman Leahy. Okay. Well, Mr. Cole, you talked about the
    legislation that Senator Lee and I have talked about to update
    the Electronic Communications Privacy Act. We want to require
    in criminal matters--I am talking about just criminal matters
    now--that the Government obtain a probable cause warrant to
    gain access to the contents of electronic communications that
    are stored by a third-party provider. Section 215 of the USA
    PATRIOT Act requires the Government to show only relevance to
    an authorized intelligence investigation in order to obtain
    records. I am not talking about bulk collection but the more
    standard usage of 215.
        Has Section 215 ever been relied upon to obtain the
    contents of stored communications from a third-party provider?
        Mr. Cole. Not that I am aware of, Mr. Chairman.
        Chairman Leahy. Mr. Litt?
        Mr. Litt. I am hesitant to give an answer to that just
    because it is not a question I have ever asked. I would prefer
    to get back to you on that, sir. I just do not know the answer
    sitting here.
        Chairman Leahy. Can you get back to me by the end of the
    week?
        Mr. Litt. I will try.
        Chairman Leahy. If they have not, as a legal matter, could
    Section 215 be used to obtain the contents of communication?
        Mr. Cole. I would have to think about that, considering
    that it is limited to the types of information you can get with
    a grand jury subpoena. I would have to look--because of the
    aspects of stored communication and things of that nature, I
    would have to check. But I am not sure--I would have to go back
    and look at that. So without a check of the legal authorities,
    I will get back to you on that, Mr. Chairman.
        Chairman Leahy. And I appreciate you checking those. I
    think you understand by the question I----
        Mr. Cole. Yes.
        Chairman Leahy. There are some serious legal ramifications
    to your answer.
        Mr. Cole. I agree.
        Chairman Leahy. Well, good.
        Chairman Leahy. I am going to yield to Senator Franken,
    but, General Alexander, you talked about using--and I will get
    to you in my next round--about going to the private sector
    looking for best practices from them. You can imagine I am
    going to ask if those best practices had been used, would a 29-
    year-old subcontractor have been able to walk away with all
    your secrets like Mr. Snowden did.
        Senator Franken.
        Senator Franken. You are going to ask that in the next
    round?
        Chairman Leahy. Sure, but----
        Senator Franken [continuing]. Do you want it answered now?
        Chairman Leahy. No. That is okay. I do not want to take--
    you have been waiting patiently. I will wait my turn.
        Senator Franken. Well, okay. General, you will have plenty
    of time to think about that, except I have a question for you,
    so we will see if you can do both at the same time.
        I have a bill, too, called the Surveillance Transportation
    Act that I think you are all familiar with. Among other things,
    General Alexander, the bill would require NSA to tell the
    American people how many of them have had their communications
    collected by the NSA. Do you think that the American people
    have the right to know roughly how many of them have had their
    information collected by the NSA?
        General Alexander. I do, Senator. I think the issue is how
    do you describe that. Those that are under a court order--so
    under FISA, as you know, to collect the content of a
    communication, we have to get a warrant. The issue would be
    almost in the Title III court. Do you tell someone, a U.S.
    person, who may not be a U.S. citizen, that we are tracking
    them here in the United States or that we have identified that?
        Senator Franken. I am not suggesting that you have to tell
    people they are being surveilled, that they personally are a
    suspect. What I am saying is, do the American people have a
    right to know how many American people have had their
    information collected? That is a different question. I was not
    suggesting we tip people off that are suspects.
        General Alexander. Yes. So I think in broad terms,
    absolutely, and let me give you an example.
        Senator Franken. In broad terms?
        General Alexander. Yes. So, for example, under 215 today,
    less than 200 numbers are approved for reasonable, articulable
    suspicion, are being searched in that data base.
        Senator Franken. Two hundred.
        General Alexander. Numbers.
        Senator Franken. People--that is 200 orders or 200 people?
        General Alexander. Two hundred numbers. Some of those
    numbers may be multiple numbers per person. Those numbers could
    be both foreign and domestic. In fact, they are. But that is
    the total number for that category for Section 215 today under
    that program.
        The other one that I think--and I think the Deputy Attorney
    General mentioned, is we can also put out more about what we
    are doing under the FAA 702 program, that we have compelled
    industry to do in a more transparent manner. The issue is how
    do we do that without revealing some of our own capabilities.
    And we are working through the interagency to get resolution on
    that.
        Senator Franken. Okay. I am being told by staff that that
    is actually the number of people that have had their phone
    numbers searched, not collected. Right?
        General Alexander. So under 215, all the data is going into
    a repository.
        Senator Franken. Metadata.
        General Alexander. Metadata. So, if, for example, I am
    talking to a foreign terrorist, my number would automatically
    hit that link. In fact, you probably would want to know that.
        Senator Franken. Right.
        General Alexander. I know the White House would.
        Senator Franken. We need to know that.
        General Alexander. That is right. So the issue would be how
    many of those. What we would do is we would look at those and,
    based on our analysis, give those numbers that are appropriate
    to the FBI for them to then go through their appropriate
    process to look at those numbers.
        Senator Franken. Okay. There is a difference between
    collected and searched, but that is--okay. But let us talk
    about 702. That is supposed to target non-Americans, right?
    Foreign persons?
        General Alexander. Reasonably believed to be outside the
    United States.
        Senator Franken. Right. Are Americans--shouldn't the
    American people know how many Americans have gotten caught up
    in that?
        General Alexander. That again is--and I do not mean to
    hedge. Let me just tell you the difficulty. If a terrorist that
    we are going after is talking to another person, in that
    communication there is nothing that says, ``I am an American,
    and here is my Social Security number.'' So the fact is when we
    are tracking a terrorist, if they are talking to five people
    and one of those is American, chances of us knowing that are
    very small.
        If we find out that it is an American, then there are
    procedures that the Attorney General and the courts have given
    us that we have to do to minimize that data on that American.
        Senator Franken. Okay. Well, I guess my question is that my
    bill calls for the NSA to report how many Americans'
    information has been searched, has been looked at by agents.
    And I am not talking about necessarily a precise number, but
    702 says that it can only look at non-Americans. And, look, my
    feeling is this: that the American people are skeptical of
    executive power.
        General Alexander. Right.
        Senator Franken. That when there is a lack of transparency,
    they tend to suspect that something--they tend to be very
    skeptical and suspect abuse. And part of the reason to have
    transparency is for people to be able to make their decisions
    based on some real information about whether or not this power
    is being abused or not.
        Now, I believe that you gentlemen have our national
    security at interest--that is your interest. That is your
    interest. But I also believe that--you know, you keep saying
    there are three--there is oversight from all three branches of
    Government. We are one of the branches, and we are doing the
    oversight. Okay?
        General Alexander. We are feeling it.
        Senator Franken. And my feeling doing the oversight is that
    I would be more comfortable and that the American people would
    be more comfortable and feel that they can decide for
    themselves, if they knew how many Americans were being caught
    up in a program like 702 that is designed by law not to target
    Americans.
        General Alexander. So I think, Senator, absolutely. But I
    would just put into this that what we are going to do is, if
    asked to do that, we are going to give you faithfully and
    truthfully that which we know. And my concern would be, 2 days
    later, we find out that was also an American, so we could
    report that later, but we are not going to--do you see what I
    mean?
        Senator Franken. Because what I am talking about in my
    legislation is not a precise number. It is a range.
        General Alexander. Yes.
        Senator Franken. And what I have been told by ODNI is that
    producing this estimate would be very difficult. But I do not
    think it would be that difficult.
        General Alexander. So it may be. I would just offer,
    Senator, to have you come up and we could sit down and show you
    this and then come up with perhaps a reasoned way to do that,
    because I do think--actually, I agree with you. I think this is
    the right thing to do, because the number is not that big. And
    I think if we could explain it to the American people, and you
    as one of our three elements of our Government could say,
    ``Here is what we see, and here is what the administration
    sees, and here is what the courts and all three of us together
    see, that is the best number we can come up with.'' When you
    see that, when the American people understand that, they will
    know we are doing this right. So I agree with you.
        Senator Franken. I see Mr. Litt, whom I know quite well_we
    have discussed this a lot--sort of jumping out of his seat.
        Mr. Litt. No. I am firmly planted, sir.
        Senator Franken. Okay. Well, eager to answer, and that is
    why I am afraid I have run out of--no, I am sorry. Go ahead.
        [Laughter.]
        Senator Franken. Go ahead. I see that you are--I have never
    seen him this eager, frankly.
        Mr. Litt. Mr. Chairman, if I might for a minute, this is a
    good example of the kind of thing I was talking about in my
    opening remarks. I think we all agree that the question you
    pose is a reasonable one, which is, How many Americans are
    being caught up in this?
        The problem is trying to find a way to provide that
    information in a manner that is both operationally feasible and
    does not compromise sources and methods. We have got some ideas
    in that regard. They are not fully fleshed out yet. We do want
    to work with your staff and see if there are ways we can arrive
    at something that will give at least some sort of reasonable
    proxy that gives Americans an idea of what the impact of this
    surveillance is.
        Senator Franken. Thank you. I am glad I have got this
    answer today because this has been part of my discussions with
    ODNI where you said that this may be too difficult to do. But
    it sounds like we have got a little bit of movement on this.
        I wanted to ask a question about what you were referring
    to, Mr. Chairman, about location information. But I really am
    way over my time.
        Chairman Leahy. You may go ahead.
        Senator Franken. Thank you for your indulgence.
        This is on the capacity issue. General Alexander, in a
    hearing--let me go beyond that. Last week, The Washington Post
    asked an intelligence official speaking on the record to
    estimate how many Americans had had their location information
    collected by the NSA. The official answer: ``It is awkward for
    us to try to provide any specific numbers.'' Right after he
    said that, the article says that an NSA spokesman interrupted
    the conversation to change that answer.
        Do you believe it is difficult for this administration to
    estimate how many Americans have had their information
    collected, or do you think it is awkward?
        General Alexander. I think it is difficult, but I think we
    are walking by each other. If I might explain?
        Senator Franken. Okay. Good.
        General Alexander. Under the Business Records FISA, there
    was a series of questions on cell site location information
    that Senator Wyden and others had asked, and we have walked
    down that road. As you know, that is one that the Court said,
    ``We are not doing that. We do not do that.'' There has been a
    few records that were done to check to see if technically it
    could be done. That was the first set of issues on the Business
    Records FISA. So there is no cell site location data under
    Business Records FISA that we are using today, period.
        Second, if an American travels overseas and his
    communications are collected, the chances are in that
    collection we may not know that that has been collected, that
    it was an American person; but the chances are if you collect
    A, you will probably get the cell site location with that
    because that is something that is also collected. The issue
    would be how many of those have been collected, and the answer
    is we are really not looking for that. It may have been
    collected because they talk to--you know, as we use--and I do
    not mean any of these people are bad. I am just using this----
        Senator Franken. You seem to point to them a lot.
        [Laughter.]
        General Alexander. I just want you to be careful because
    they are right behind you. But I am concerned, Senator, that in
    that case we will not know at all who are the Americans and who
    are not in those issues for the same reasons as before. But
    what we can tell you is I think good numbers on those that we
    target overseas that are Americans under those procedures that
    we have. We can give you those numbers, 703, -4, and -5 that
    fall into that. And I think that is perhaps what we are really
    looking for. Does that make sense?
        Senator Franken. Yes. Thank you. And, Mr. Chairman, thank
    you for your indulgence. I also want to go down to the
    briefing. Thank you, gentlemen.
        Chairman Leahy. Say hello to everybody for me.
        Senator Franken. I will.
        Chairman Leahy. General, to go back to the question I
    asked, and not facetiously, I assure, when you said that your
    work with private industry on proving techniques and so forth,
    and I assume you would. Let us go back to the Snowden case. As
    you know, I have expressed grave concerns about how a 29-year-
    old subcontractor can come walking in and that your system of
    checks and balances and all was not good enough to stop him
    from walking out with a huge amount of data. I see something
    similar, although a different type of data, when our own State
    Department and Department of Defense put huge numbers of highly
    classified and highly sensitive cable traffic from some of our
    embassies into one location where a private first class, I
    believe he was, was able to go in and take it all out on a Lady
    Gaga CD. And we know the enormous, enormous problems caused to
    our diplomacy and the security of a lot of Americans and our
    allies because of that situation. I have never found anybody to
    say what we ever gain by putting all that material in one
    place.
        So now we go to the Snowden case. Whether somebody thinks
    he is a hero or a villain is not so much the question as it is,
    I think we can all agree, that a lot of the material that has
    been released because of him has been very damaging to the
    United States. It has certainly been damaging to our allies,
    our relationships with our allies.
        I realize, as you and others do, that some of our allies
    have said how terrible it is we are doing this. It has to make
    one think of the scene in the movie, ``Casablanca'': ``I am
    shocked, shocked, to see this going on,'' knowing that they are
    doing very similar things. But having said that, there were
    things that created grave problems for us.
        So my question is: First, can you say with confidence that
    you now have checks and balances at NSA to stop something like
    this happening again? And, second, has anybody been disciplined
    at NSA for dropping the ball so badly?
        General Alexander. So, first, Chairman, on the checks and
    balances and the things that we have done, that is the 41
    different actions that I discussed for Senator Grassley that
    our technology director is using. That does employ best
    industry and best practices that we have and has drastically
    improved that capability.
        Chairman Leahy. These are subsequent to the Snowden----
        General Alexander. That is correct. This is all since the
    Snowden thing. This gets into compartmentalizing and encrypting
    data to creating communities of interest. And we do have three
    cases that we are currently reviewing, working our way through,
    that I do not want to prejudge given my position.
        Chairman Leahy. I understand.
        General Alexander. That we will fully inform this Committee
    of action that we have taken once that action is complete. So
    we are doing that.
        Chairman Leahy. Now, first off, whether it is 41 steps or
    35 or whatever, I would hope that this makes it better. The
    obvious question comes up: Why were these steps not taken
    before? Was it because there is a sense of confidence that we
    are the NSA, we will not make a mistake? Or was it just--well--
    --
        General Alexander. Well, actually, Chairman, the reason it
    happened is his job was to move data. He was the person who was
    to move the books from Point A to Point B. He was the
    SharePoint server, Web server administrator. His job was, in
    fact, to do what he did. And therein lies part of the problem.
        We had one individual who has the responsibility to move
    that data who betrayed that trust. We believed that they would
    execute that duty faithfully and in a manner that everybody had
    agreed should be done.
        Chairman Leahy. To use your analogy, General, let us say I
    run a company that sells millions of dollars worth of diamonds,
    and I am going to have to transfer them from my warehouse in
    this State to my warehouse in this State. Now, am I negligent
    if I say, well, look, we have got this 29-year-old
    subcontractor, here are the keys to the car, the truck that
    carries all these diamonds, get them there safely; by the way,
    here is a map? Or is it better off that I have two or three
    people who check on how it gets there?
        General Alexander. So prior to this event, it was standard
    that one person would do one job, and he would have back-up
    help, and you would have oversight of that. But in doing that
    job, it is very difficult, if not impossible, to see that
    person replicates a copy of what he took. A little bit
    different than in the diamond case, but your point is well
    taken. You would not give the guys the key to the car to drive
    your diamonds across State--especially when you did not know.
    In this case what we have done is we have input a two-person
    rule just like you would for that for these specific issues,
    and you will see that in parts of the write-up.
        I would also point out one of the notes I got, from the
    WikiLeaks we were already implementing the WikiLeaks issues
    that had been found through the interagency process. So we were
    implementing that. This specific vulnerability that he
    exploited was not found in the WikiLeaks area. And there were
    some specific things that I would prefer not to go into here
    because----
        Chairman Leahy. Can I suggest that there are still going to
    be people out there who are going to want to find more things?
    Would we both agree on that?
        General Alexander. Absolutely.
        Chairman Leahy. I think we would also agree that the vast
    majority of people who work with you--and I do believe this--
    are very honest and would not want to do anything to betray the
    country they serve. Is that correct?
        General Alexander. Absolutely, Chairman.
        Chairman Leahy. Thank you.
        We talked about the legal standard for bulk collection
    programs, and that is one thing. The other thing is, do we
    really need to be collecting massive amounts of data on
    innocent Americans to keep us safe? Just simply because you can
    do something, does it make sense to do it?
        We had a question on an entirely different matter before
    this Committee once when I had raised the question about road
    blocks being set up by our border people in Vermont on one of
    our interstate highways about 40 or 50 miles from the Canadian
    border. And they said with great enthusiasm, well, over a
    period of X amount of time, they found four or five illegal
    immigrants and collected X amounts of marijuana and some
    cocaine. I said, ``Wonderful.'' They spent a huge amount of
    money and set up this road block, inconveniencing everybody. I
    said, ``Look how much more you could collect if we set up those
    road blocks on every single bridge coming into Washington, DC,
    in the morning. A couple hundred thousand, 100,000, 200,000
    people come in from Maryland, same number from Virginia and
    West Virginia, unless we have something, a cataclysmic thing
    like 2 inches of snow, and then, of course, we have to close.''
    In Vermont, anything under 5 inches of snow is called a
    ``dusting.'' But I digress. But the fact it----
        [Laughter.]
        Chairman Leahy. But not much. The fact is if we set up
    those kind of road blocks, we would collect hundreds of illegal
    immigrants. We would collect huge amounts of illegal drugs and
    probably other contraband. Would we do it? No. I mean, the
    place would come to a screaming halt, and there would be those
    people who are totally innocent and all who might be screaming
    about it, including Chairs of various oversight committees.
        But my point is we have already established that the
    Section 215 phone records collection program was uniquely
    valuable in just one terrorism-related cases, not the 54 that
    have been talked about before. The NSA shut down a bulk
    collection program related to Internet metadata because it was
    not meeting operational expectations. And I was concerned to
    learn that the NSA has never done an assessment of the
    effectiveness about collection under Section 702 despite the
    fact the program mistakenly led to the warrantless collection
    of thousands of domestic emails, including their contents. We
    can do a huge amount, but then at some point you have to ask,
    What do we get out of it?
        So, General, I would ask you this: Shouldn't the NSA assess
    the utility of its various collection methods in a systematic
    way, especially if they pose a risk of obtaining Americans'
    communications? The question would be very simple if we were
    talking about going into everybody's home to look at their
    letters and their files and their most personal things. But
    somehow we are looking at it differently because it is out
    there electronically.
        General Alexander. Senator, Chairman, that was exactly why
    under the Pen Register/Trap and Trace the email metadata
    program, when we looked at that, we--and I was the key NSA
    official to say this program does not meet the operational
    requirements for the amount that we are putting in, and we
    recommended to the DNI and the White House that we stop that
    and inform Congress. So we made that operational decision based
    on what we got for what we put into it to what it cost us.
        We did the same, we are doing the same on the Business
    Records FISA, the metadata program, and we looked at that. Here
    is the issue, quite candidly, that I am wrestling----
        Chairman Leahy. You are doing that now in the PRTT?
        General Alexander. We did the PRTT back in 2011 when we
    stopped that program, and that was based on my recommendation
    based on working with our people to look at what we are doing.
        Chairman Leahy. Did you find any terrorism plots it helped
    thwart?
        General Alexander. With the Pen Register/Trap and Trace? I
    will have to go back and get you the specifics on that. That
    will take more than Wednesday, though, but I will get you that
    answer.
        Chairman Leahy. Okay, because I am thinking, when Deputy
    Director Inglis testified, there was only one time where
    Section 215----
        General Alexander. Right, so that is Section--now we are
    going to 215. The issue that I have on 215 and why I am so
    concerned, I agree that what Congress, the courts, and the
    administration have given us here is extremely intrusive taken
    in its whole. But the way we have put the oversight and
    compliance and the regimen that we have around it and the
    oversight by the courts, the administration, and Congress
    ensure that we are doing this right. And the frequency that we
    look at that, less than 200 numbers now approved, and less than
    300 for all of 2012, from my perspective that shows that we are
    being judicious in how we do it, there is oversight by all
    three branches of the Government, and complete auditability on
    every action that we do.
        We do not have a better way of doing this, so that goes
    into that question of industry. So my question is: I do not
    know a better way to do it, and I am being completely candid. I
    am concerned with all that our country is going to face that we
    will have failed the Nation if an attack gets through.
        And so you have asked us to do that. I cannot think of a
    better way. I think this is where industry--do they have a
    better way of doing it? We ought to put it on the table and
    argue that through all branches of the Government. Nobody has
    come up with a better way.
        And so that is my concern with the metadata program that we
    have today. I cannot think of a better way. It is like holding
    on to a hornet's nest. You know, we are getting stung. You have
    asked us to do this for the good of the Nation, to defend the
    Nation, to get the intelligence we need. Nobody has come up
    with a better way. If we let this down, I think we will have
    let the Nation down. So that is why I am concerned.
        Chairman Leahy. General, I realize the world changes, but I
    think back to my days as a young prosecutor, and without going
    into war stories, I remember when as a member of the Executive
    Board of the National DA's Association, we had a meeting with
    J. Edgar Hoover, and four or five of us there, we went across
    the spectrum politically. We were all chilled by what we heard
    from him: his disregard of the Constitution, his willingness to
    do things--he explained to us there was no such thing as
    organized crime in America, even though, of course, there was a
    massive organized crime operation at that time. But we had to
    fear Communists. He even suggested to us that The New York
    Times and its editorial policy was very close to becoming a
    Communist newspaper and he was about to investigate it as such.
    I am serious. I am always thinking what it would have been like
    if he had had the power that you and the NSA have.
        I had a friend who died in the Towers on 9/11. I think
    about that all the time. I think of my wife, who was a medical-
    surgical nurse at Arlington Hospital, going there, even though
    she had retired, to volunteer to help with any wounded coming
    from the Pentagon and being told there were no wounded. You
    were either alive and walking or you were dead. There was
    nothing in between. These things sear in your mind. You do not
    want this to ever happen again.
        But I also think of the J. Edgar Hoover type thing, and I
    think as an American it is very easy to go to another country
    and complain to them about their police state--and I am not
    suggesting that that is what you are, but their ability to go
    and listen in on everybody, search everybody. We give up a lot
    of our privacy in this country, and frankly I worry about
    giving up too much. And can we be totally secure? Of course we
    cannot. You cannot be totally secure going out to dinner in the
    evening from some random shooter who is not even aiming for
    you.
        So, I mean, I look at the administration declassifying a
    number of FISA Court opinions, and they get credit for doing
    that, but there has been no release of any FISA Court opinion
    from the 2006 time period containing legal and constitutional
    analysis of the Section 215 phone records program. Is that
    because it did not exist or it has not been declassified? And I
    ask this question--and I will let Mr. Cole give me an answer to
    that at some appropriate point. But I really feel that our
    oversight has not been adequate or that so much of it is done
    secretly that it is too easy to say if you knew what we knew,
    you would not ask us questions. And I worry as technology gets
    greater and greater, the temptation, whether it is this
    administration or the next administration or the administration
    after that, to people to misuse it.
        So I know I have been critical of these things. I hope none
    of you take it personally. But as a Vermonter, I am very
    concerned about my privacy and everybody else's.
        Did you want to add anything, Mr. Cole or Mr. Litt or
    General?
        Mr. Cole. Mr. Chairman, you know, I think that we are all
    concerned to make sure that we get this balance right and that
    an important part of that balance is transparency to the
    American public, keeping their trust in what we are doing,
    making sure that while doing that we do not compromise our
    abilities to be able to use classified techniques that will
    help keep them safe. But that is--there is a tension between
    those two, and there always has been. And finding that right
    balance is always something that is difficult, but it is our
    job. And it is our collective job in all three branches of
    Government, including with oversight from the U.S. Congress as
    a very important part of that.
        So I think the path that we are on now is very much the one
    that you are describing of trying to make sure that we find
    that line and find that balance of giving the information that
    we can give, providing the transparency while maintaining the
    operational integrity of what we are doing. We should not be
    saying to you, particularly from an oversight function, if you
    only knew what we knew, you would say we are doing fine. We
    should be in a position to be able to tell you what we are
    doing.
        Mr. Litt. Mr. Chairman, if I can just add a couple of
    points there. The first is that, as I am sure you know, there
    is nobody in the intelligence community today who operates on
    the assumption that you ascribed to J. Edgar Hoover before, ``I
    do not care what the Constitution says.'' Everybody is
    singularly focused on ensuring that we comply with the
    Constitution and the law. And as you know, in all the material
    that has come out, there has been no suggestion of any willful
    abuse or violation of privacy of people. The compliance
    violations that have occurred have been technical, they have
    been unintentional, but nobody has been out there attempting to
    illegally spy on Americans or anything else.
        But the other point I want to make is sort of a more
    philosophical one, because the point you raise about worrying
    about the next person is, of course, something that was a
    concern all the way back to the Framers of the Constitution,
    which is why they set up the Constitution with checks and
    balances, to try to ensure that the innate tendency of human
    beings with power to seek to abuse that power is checked. And
    that is what we have tried to accomplish within the
    intelligence community with the degree of oversight that we
    have, the number of people who are looking over other people's
    shoulders, the number of reports that have to be done, the
    technological controls that we have in place.
        As General Alexander said earlier, if there are ways we can
    do that better, we are open to that. We would like to ensure
    that there is oversight that is sufficient to persuade the
    American people that we are doing the right thing on their
    behalf. But we do think it is important that in considering
    what to do, we do not throw out the baby of national security
    with the bath water of oversight.
        Chairman Leahy. And if there are better ways of doing
    things, if there is any silver lining in the Snowden matter, I
    understand from General Alexander's testimony that you are
    taking the steps to make sure that colossal mistake would not
    happen again.
        Mr. Litt. We are going to do our best.
        Chairman Leahy. General. And then after you speak, General,
    I am going to turn the gavel over to Senator Whitehouse because
    he is a nicer person than I am. Go ahead.
        General Alexander. Chairman, first, two things. As you
    correctly stated, there was one unique case under 215 where the
    metadata helped. There were seven others where it contributed
    and four where it did not find anything of value, and we were
    able to tell the FBI that.
        Now, that last part, ``of value,'' I want to point that
    out. This summer there was a big issue on terrorism that we all
    went through. This program actually helped us understand was
    that focused on the United States or elsewhere? We used that
    program to determine none of those leads were coming into this
    country, and we were able to focus our efforts elsewhere, which
    really helped both the intelligence community and the FBI in
    that case.
        The second part, you know, I have been in this job for a
    little over 8 years, and my experience from dealing with the
    people that we have, dealing with Congress, the courts, and the
    administration on this, is our folks take the Constitution to
    heart. We see this as two roles: defend the Nation and protect
    our civil liberties and privacy. Everybody at NSA, including
    myself, takes an oath to that Constitution, that we will
    support and defend the Constitution. And you know the rest of
    that.
        And I would tell you that the oversight we have, especially
    by the courts, ensures that what happened that you brought up
    will not happen here. From my perspective, we have great
    oversight in this program, and at times I complained that the
    oversight was so robust that it was crippling. But now you can
    see that everything that we have done, all the things that have
    come out were either self-reported or brought out. They were
    not revealed by Snowden. We had already reported those
    incidents. I think you can see that we are acting well and
    faithfully to discharge those duties.
        Just to correct one thing, to add to what Bob said, there
    have been no willful or intentional violations under the 215 or
    702. As you do know, there were 12 under Executive Order 12333.
    In both cases, all the violations that we know about we have
    self-reported. Some of those we knew would be significant. We
    brought them up to the White House, to the DNI, to the
    Department of Justice, to the courts, and to Congress. We made
    a mistake. These were not intentional. They were significant.
    And you have read the court things and you have read some of
    those. But from my perspective, I think what we should take
    great pride in the fact is this agency in every case reports on
    itself, tells you what it did wrong, and does everything we can
    to correct it.
        Chairman Leahy. Thank you.
        Senator Whitehouse, would you take it from here? And I
    apologize to the next panel that I am going to--I may not be
    able to get back. I am going to try to--do you want to take
    this seat here?
        Senator Whitehouse [presiding]. Sure. I will do that when
    the panels shift, but let me just take a little bit of time
    myself right now with this panel before they are excused.
        First of all, we are at a time where we have entered a new
    technological era, the era of big data, and I will loosely and
    unprofessionally define ``big data'' as the ability to
    aggregate enormous amounts of information that do not get
    looked at and then figure out ways, once they are aggregated,
    to search for things in that big heap of data. And that raises
    questions about whether the aggregation is a search or whether
    it is not a search until a human being actually asks a question
    and actually the information gets to another human mind. And
    some of these are pretty difficult questions that we have to
    work our way through, and so I think the attention that the
    Committee is paying to this is a very sensible attention.
        But our national intelligence establishment is not the only
    group that is playing in this big data area. We all know that
    Google and other private sector providers are very, very
    actively in big data, data mining, and doing things like that.
        What can you tell me about what other governments are doing
    without specifying names and releasing any national security
    information? I take it that other foreign sovereigns are doing
    very aggressive things in this space to try to pull as much
    information as they can as well out of the cloud and out of the
    capacities of big data. Who would like to take that? General.
        General Alexander. Senator, I have some experience in that.
    In my opinion, none of them have the oversight by all three
    branches like we do, either their parliaments, congress, their
    courts, and their administration.
        Senator Whitehouse. Understood, but my point is they are
    all out there doing it.
        General Alexander. They do.
        Senator Whitehouse. And that if we were to--well, of the
    ones who have capability, a lot--the most powerful ones all do.
        General Alexander. That is right.
        Senator Whitehouse. And if we were to pass a law that
    prevented our intelligence and defense establishment from
    operating in that big data atmosphere, we would be essentially
    unilaterally disarming in an arena in which other governments
    are very active. Is that true?
        General Alexander. That is true. In fact, I think some have
    likened it to, because we have a powerful intel community or
    powerful Navy, we would tell our submarines to surface in those
    areas where people do not--their subs are not as good.
        Senator Whitehouse. And the actual collection of data in
    the sense that it is brought to the awareness of a human mind
    somewhere has to be overseen very scrupulously. And as I
    understand it, this operation is overseen by multiple
    inspectors general, multiple general counsels, multiple Federal
    executive agencies. NSA connects in ways that provide varying
    levels of visibility, but in most cases complete visibility to
    our Department of Defense; to the FBI, to the Department of
    Justice, Jim; to the ODNI, the Office of the Director of
    National Intelligence; to the President; to the National
    Security Council. So there is considerable attention that is
    being dedicated to this. We have a court that is dedicated to
    this that reports to the Supreme Court. We have this
    legislative Committee, the Senate Intelligence Committee, and
    the House Committees.
        So it is hard for me to think of whatever we might do to
    add to the level of oversight, I think we may make it more
    efficient and effective. But I do not want anybody to leave
    this hearing thinking that we kind of just leave this question
    to the NSA. We have built a system in which every branch of
    Government and within those branches of Government in many
    cases multiple different agencies, and in some cases within
    those agencies multiple different and in some cases independent
    sectors, all compete to have a look and to make sure that the
    right things are being done.
        So I will let you all go. I appreciate what you are doing.
    I understand that we need to get this right. But I think it
    would be a mistake to unilaterally walk away from the realm of
    big data to protect our national security when we are perfectly
    comfortable with private companies doing that to make money and
    to find out more about us so they can market to us better, and
    when foreign governments are energetically penetrating this
    space in order to accomplish similar results. And I think
    nobody should leave this hearing not aware that the layers of
    oversight and checking and double-checking and triple-checking
    that are done here are very, very rigorous and considerable. I
    know you have to live with that all the time. If you would like
    to make any closing comment to that, I will let you do that.
    But otherwise I will let you go.
        Mr. Cole. I think you have summarized it very well,
    Senator.
        Senator Whitehouse. All right. Well, we will leave it with
    that, and I appreciate very much you all being here. Thank you
    for your service to our country.
        General Alexander. Thank you, Senator.
        Senator Whitehouse. And we will take a minute and call up
    the next panel.
        It was hard to get Bob Litt out of here, Professor. He
    loves it so much being in front of us.
        All right. Let me ask the panel to stand to be sworn. Do
    you affirm that the testimony you are about to give to this
    Committee will be the truth, the whole truth, and nothing but
    the truth, so help you God?
        Mr. Black. I do.
        Mr. Sanchez. I do.
        Professor Cordero. I do.
        Senator Whitehouse. Please be seated. I am delighted to
    welcome our second panel on this important issue, and I will go
    right across the table and ask each of you to make your opening
    statements, and we will do collective questions at the end. We
    may be rejoined by a number of my colleagues. This is the time
    that the administration briefing on Iran is taking place in the
    classified area, and so obviously that is of interest.
        We will start with Ed Black, who has been the president and
    CEO of the Computer and Communications Industry Association
    since 1995. He previously served as Chairman of the State
    Department's Advisory Committee on International Communications
    and Information Policy, and he worked as chief of staff and
    legislative director for two Members of Congress.
        Mr. Black, welcome. Please proceed.

      STATEMENT OF EDWARD J. BLACK, PRESIDENT AND CHIEF EXECUTIVE
      OFFICER, COMPUTER AND COMMUNICATIONS INDUSTRY ASSOCIATION,
                             WASHINGTON, DC

        Mr. Black. Thank you very much for the opportunity to be
    here. Thank you, Senator Whitehouse.
        This is an important subject. I want to start out by just
    pointing out that 16 years ago the White House charted a course
    for a vibrant Internet economy in the perceptive Magaziner
    Report, the first U.S. Government policy statement addressing
    the needs of Internet commerce. That policy statement correctly
    identified user trust as the foundation of Internet commerce.
    It noted: ``If Internet users do not have confidence that their
    communications and data are safe from unauthorized access or
    modification, they will be unlikely to use the Internet on a
    routine basis for commerce.''
        That may sound rudimentary today, but we should not take
    for granted decades of progress in creating security and
    fostering user trust, and we should not discount how easily
    that foundation can be damaged.
        The broad NSA surveillance regime and the way it has been
    received internationally has harmed U.S. companies, U.S.
    competitiveness, and the Internet itself. The U.S. Government
    must be proactive in addressing these concerns. The status quo
    is no longer an option. If we do not act, we will put at risk
    our economic security and undercut our diplomatic ability to
    influence the future of the Internet. Therefore, Mr. Chairman,
    CCIA supports the USA FREEDOM Act, and we look forward to
    working with the Committee and staff on this important piece of
    legislation.
        A healthy global Internet is a source of American
    competitive advantage. The U.S. ITC has documented a growing
    digital trade surplus. Our global competitiveness is not just
    good for commerce, it is an essential component of our long-
    term national security.
        The Internet does not only benefit the U.S., however. The
    open Internet provides great global commercial benefits. The
    Internet economy in G-20 countries is expected to reach $4.2
    trillion by 2016. Estimates show that 21 percent of economic
    growth in mature economies over the past 5 years is
    attributable to the Internet.
        Traditional industries are the beneficiary of 75 percent of
    the economic value derived from the Internet. Thus, we should
    not underestimate the Internet's role in global economic
    development, which in turn has its own security benefits for
    the United States and the rest of the world.
        The NSA's practices clearly impact the business of U.S.
    Internet companies. So much of online commerce today is
    fundamentally based on trust. If users are going to turn over
    very sensitive personal and confidential information to a
    company providing online email or other cloud services, they
    need to believe that the company will act as a responsible
    steward of their data. Although traditional debate on the
    utility of overbroad NSA surveillance has focused on hard-power
    arguments, one must not overlook the effect on soft power.
        It is important to recognize the dramatic effect these
    revelations have had on our international diplomatic authority,
    particularly in regard to the future of Internet governance.
    Last year's WCIT conference showed us that there was deep
    international division over whether to subordinate the open
    Internet to the political machinations of world governments,
    including repressive regimes. The U.S. needs to be a beacon for
    freedom and openness in this battle.
        Given these risks, we propose: enhanced transparency and
    procedural reform; clearer protection for Americans; and
    baseline protections for international users.
        With regard to transparency and procedural reform, we think
    all governments should share with citizens meaningful
    information about their surveillance laws, their legal
    interpretations, and the judicial procedures that govern the
    exercise of this powerful authority. Of course, the U.S. cannot
    demand this from others until it leads by example.
        Furthermore, companies should be permitted to disclose
    publicly to their users the precise volume of requests from
    governments. Businesses should not only be permitted to release
    transparency reports but encouraged to do so. We categorically
    reject the notion that open government will cause undue damage
    to security. Transparency in criminal surveillance has been the
    norm for years and does not appear to have materially affected
    law enforcement.
        In order to present a robust check on the Government, the
    FISC must also evolve to include a committed and well-resourced
    advocate to provide an alternative viewpoint, particularly in
    situations involving novel questions of law.
        Second, focusing on protections for Americans, Federal laws
    addressing the circumstances in which the Government may
    collect Americans' data for national security purposes are
    badly in need of reform. Bulk collection of metadata is one
    area where that is most obvious, as it reveals a great deal of
    sensitive private information. Furthermore, important First
    Amendment rights of association are implicated by the
    Government assembling its own version of your social network
    for their own analysis. The USA FREEDOM Act addresses this
    problem by explicitly prohibiting this type of bulk collection
    both on the Internet and on telephone networks, and that is one
    of the reasons we are supporting it.
        Third, and finally, protections for foreigners. A difficult
    subject to deal with, but despite the global interconnected
    nature of the Internet, U.S. national security policy continues
    to presume U.S. citizens deserve protection from unwanted
    surveillance, while others do not. If foreigners lack baseline
    privacy assurances, foreign competitors will supplant U.S.
    leadership in Internet innovation and digital commerce, thus
    undermining strategic economic and other security interests.
    This is especially true going forward, as foreign markets are
    increasingly important.
        Thank you very much for the opportunity to testify. I look
    forward to your questions.
        [The prepared statement of Mr. Black appears as a
    submission for the record.]
        Senator Whitehouse. Thank you very much, Mr. Black.
        Our next witness is Julian Sanchez, who is currently a
    research fellow at the Cato Institute focusing on the
    intersection of technology, privacy, and civil liberties, with
    a focus on national security and surveillance issues. He
    previously served as the Washington editor for a technology
    news site and has written for a wide array of publications.
        Mr. Sanchez, welcome.

                 STATEMENT OF JULIAN SANCHEZ, RESEARCH
                 FELLOW, CATO INSTITUTE, WASHINGTON, DC

        Mr. Sanchez. Thank you, Senator Whitehouse. It is a
    privilege to address this Committee.
        I want to begin by suggesting that if we step back from the
    details of the disclosures of recent months, we find a
    disturbing pattern across multiple programs and authorities
    emerges. I will focus in particular on the telephony metadata
    program, the now defunct Internet metadata program under the
    pen/trap authority of the PATRIOT Act, and upstream collection
    under Section 702 of the FISA Amendments Act.
        In each of these cases, what we see is that extraordinary
    but nevertheless limited authorities were secretly interpreted
    in ways that permitted far more extensive collection than
    certainly members of the general public and even, I think, many
    legislators believed at the time of passage had been
    authorized. This was done in part because the FISA Court, which
    was established on the premise that it would be authorizing and
    find probable cause in cases of specific and traditional
    targeted surveillance, instead found itself in the position of
    addressing broad programs of surveillance, often involving
    novel legal or technological issues that it is not clear that
    body was well established to consider.
        In the metadata cases, these interpretations took the form
    of an unprecedented reading of relevance that held entire
    databases containing information about millions of admittedly
    innocent Americans to be relevant on the grounds that a fishing
    expedition through those records might ultimately turn up
    evidence that would not otherwise be detected in the absence of
    some specific grounds for suspicion that is probably true, but
    it is, of course, true of any fishing expedition and defeats, I
    think, the purpose of the relevance requirement if that
    argument is allowed to go through.
        There is no real limiting principle in that argument for
    any type of records, and I was particularly disturbed to hear
    earlier Mr. Litt refuse to reassure us that the scope of the
    records obtainable under Section 215 does not exclude the
    contents of digital communications or cloud-stored documents.
        It is also particularly troubling to see this applied in
    the case of the Internet metadata program because in that case
    the, in my view, shortsighted holding of Smith v. Maryland was
    applied as it referred to metadata generally, which is
    certainly not a term we find in the 1975 decision, when in this
    case it involved email metadata that is not ever stored as
    Business Records or usually even processed by the Internet
    backbone providers from whom it was presumably obtained. So
    there is kind of an additional constitutional question in that
    case, I think.
        In the case of 702, we know the Supreme Court relied on a
    recent ruling in Amnesty v. Clapper on representations that
    only communications to or from specific overseas targets were
    being intercepted. We have now learned, of course, that also
    communications referring to overseas targets would be
    intercepted, and that in many cases for technical reasons a
    single email meeting selection criteria would lead to the
    entire inbox of the communicant being obtained, including,
    again, potentially entirely domestic emails on what the Court
    believed could be a scale of many tens of thousands per year
    under that one collection program.
        In each case, additionally we learned that for months or
    years, the actual technical details of how these programs
    operated were misrepresented to the FISA Court, which was, of
    course, therefore not able to effectively conduct oversight;
    and that in each case, again, elaborate safeguards and
    restrictions imposed by the FISA Court as a condition of
    authorizing those programs were effectively neglected because
    of the vast scale and complexity of those programs.
        Additionally, in many cases we found that the claims of
    efficacy made at the time do not appear to have held up well
    over scrutiny from many dozens of foiled terror plots we have
    gotten down, in the case of the telephony metadata case, to
    really one instance involving funding and material support
    where it appears to have played some uniquely valuable role.
        Given the limitations again imposed by the FISC, it is not
    clear why more traditional targeted orders could not have been
    used without incidentally sweeping in millions of innocent
    persons' records.
        We are assured that the problems detected with these
    programs have not been willful or intentional. This is not
    especially comforting to me for several reasons.
        The first is that if we look to history, we find that, in
    general, abuses of intelligence powers were committed by people
    who were well aware of the oversight mechanisms in place who
    often took elaborate steps to game those restrictions. In the
    cases of Bradley Manning and Edward Snowden, we know that it
    was--you know, steps were taken to evade oversight mechanisms
    in the case. We know that certainly happened many times in the
    past. And it is why abuses went undetected for so long.
        Additionally, the scale of collection itself makes abuse
    more difficult to detect and less likely to be detected when it
    does occur. I think of the case of illegal wiretaps of the
    Southern Christian Leadership Conference's office. That at
    least was halted by an Attorney General who found the
    suspicious fact that the wiretap existed and there was a record
    of it. When you are doing collection on this scale, the mere
    existence of communications or records about an innocent party
    are not themselves that kind of essential indicator.
        Finally, and most generally, I would just encourage the
    Committee to think architecturally. We should not authorize
    extraordinary architectures of surveillance on the basis that
    we now have great confidence in the probity of the persons
    controlling the levers. James Otis, whose condemnation of the
    Writs of Assistance was part of the inspiration for the Fourth
    Amendment, condemned those writs, saying that it is ``from
    their mere existence that every householder in the province
    becomes less secure.'' And there is a sense in which, while
    they may serve some role in protecting us against foreign
    attacks, we are less secure when the Government maintains vast
    databases on Americans without particularized suspicion.
        I thank you and I look forward to your questions.
        [The prepared statement of Mr. Sanchez appears as a
    submission for the record.]
        Senator Whitehouse. Thank you, Mr. Sanchez.
        Our final witness is Professor Carrie Cordero--whose bio I
    have just mislaid, but I am sure you can get me another one
    very quickly. Thank you.
        She is an adjunct professor of law and the director of
    National Security Studies at the Georgetown University Law
    School. She has previously held several national security-
    related positions with the Department of Justice and the Office
    of the Director of National Intelligence, and she has also
    testified before this Committee before.
        So welcome back, Professor, and please proceed.

      STATEMENT OF CARRIE F. CORDERO, DIRECTOR, NATIONAL SECURITY
     STUDIES, AND ADJUNCT PROFESSOR OF LAW, GEORGETOWN UNIVERSITY
                       LAW CENTER, WASHINGTON, DC

        Professor Cordero. Mr. Chairman, thank you very much.
    Thanks for the opportunity to return to the Committee.
        Since the October hearing, the conversation, I would
    suggest, has shifted somewhat from where it first was. First, I
    would suggest that the conversation has evolved from objections
    to specific programs to a discussion of our understanding of
    and tolerance for foreign intelligence surveillance activities
    more broadly.
        Second, the legislative proposals are coming closer to
    scaling back national security legal authorities in a way that
    might make the country back to pre-9/11 standards.
        And, third, the path forward on authorized public
    disclosure in a way that is responsive to the concerns of the
    private sector remains a worthy goal, but still a significant
    challenge.
        With respect to the telephony metadata collection under the
    Business Records provision of FISA, an argument increasingly is
    regarding the power of metadata, and basically this argument is
    that metadata is a very powerful tool and can reveal an awful
    lot about us, and there should be limits on the Government's
    collection and use of it.
        I do not disagree with the general proposition, but the
    problem with the argument made in the context of the debate on
    215 is that the worrisome assemblage of Americans' metadata
    bears no relation to the existing 215 program that Congress is
    currently considering. The 215 program does collect an enormous
    volume of Americans' telephone call detail records, but the
    collected information does not appear to include content of
    phone calls, names of subscribers, payment information, or
    location information. The vast majority of it is never viewed
    by human eyes and the records are handled under court order
    rules.
        So of the arguments that Congress should outlaw bulk
    collection altogether, for better or for worse, everyday
    Americans use the Internet to communicate. We all, regular
    people, Government leaders, as well as those who are national
    security threats, use the Internet, computers, and smartphones
    to communicate. And so just as everyday citizens should not be
    expected to revert to using only the Postal Service and
    landlines, neither should the intelligence community or law
    enforcement have to resort to pen, paper, and index cards to
    conduct national security collections or investigations. It is
    just as unrealistic to expect citizens to unplug as it is to
    expect or require the NSA or the FBI to use 20th century
    collection, analytic, or investigative techniques to protect
    the Nation from 21st century threats.
        A few observations on S. 1599, the USA FREEDOM Act that has
    been submitted. Sections 101 and 201, which change the legal
    standards in FISA to obtain Business Records and implement pen
    register/trap and trace devices by requiring a connection to a
    foreign power, to an agent of a foreign power.
        The sections also add a materiality requirement. The likely
    intended effect of these provisions is to eliminate the 215
    bulk telephony metadata program. But the proposed changes would
    likely have far more reaching consequences for traditional,
    day-to-day investigations. The standards are currently aligned
    on the national security side with investigative authorities in
    the criminal context, which operate on a relevance standard. By
    raising the standard, these sections would render these
    investigative techniques nearly useless in the early stages of
    an investigation, which is precisely when they are most useful.
    These changes could return us to the days prior to September
    11th, when it was harder to conduct a national security or
    international terrorism investigation than it was to conduct an
    everyday drug or fraud case.
        Similarly, Section 501 would amend the collection of
    statutory authorities known as ``national security letters'' by
    requiring the requested records to also have a connection to an
    agent of a foreign power. This would have a similar effect in
    terms of severely limiting the FBI's ability to conduct timely
    and thorough national security investigations.
        Another section, Section 301, would appear to prohibit the
    intelligence community from querying data acquired pursuant to
    Section 702 of FISA to search for U.S. person communications.
    Under the current minimization procedures approved by the
    Court, the NSA can query the communications already acquired
    under 702 for U.S. person communications. The proposed
    legislation would only allow the same query to take place if
    the U.S. person is a current target of a criminal wiretap or
    FISA coverage, which would require prior judicial approval
    based on probable cause. This proposal could arguably prohibit
    the intelligence community from querying already lawfully
    acquired data to search for the methods of communication of a
    valid target who happens to be also American. And in my written
    statement, I give an example of how I think this could
    potentially play out in practice.
        A few words just on a particular proposal to enhance
    transparency that is in the bill. In my view, there is
    substantial value in Congress continuing to work with the
    executive branch and the private sector to rebuild confidence
    between them and for the Government to help the private sector
    restore confidence with consumers, customers, and investors.
        But a particularly problematic proposal is Section 602 of
    the bill. It proposes that the Government disclose the number
    of persons subject to electronic surveillance. I believe that
    this is intended to include not only targets but persons whose
    communications are incidentally collected. If that is the
    intent, in my view this provision would actually degrade
    privacy protections because a requirement to report on the
    numbers of persons collected would require that the
    intelligence community personnel look at, read, review, count,
    and keep records about and report on information that they
    otherwise would disregard in pursuit of their actual mission of
    discovering, analyzing, and reporting on foreign intelligence
    information.
        So again, thank you for the opportunity to be here today,
    and I look forward to your questions.
        [The prepared statement of Professor Cordero appears as a
    submission for the record.]
        Senator Whitehouse. Thank you very much.
        Let me start with a question for Mr. Black. There is
    legitimate concern that the knowledge of our national security
    activities casts a shadow on the ability of American companies
    to compete internationally. That was the basis of your
    testimony. Do you believe that foreign customers believe that,
    for instance, if they sign up for a service with Huawei that
    the Chinese Government is not looking into this data or the
    Russian Government, if they sign up in areas under its
    jurisdiction, or the French Government, for that matter, do you
    think that the U.S. Government is actually the only government
    that is trying to take advantage of big data?
        Mr. Black. I hope our standard is not just to meet Huawei,
    but I do think the reality is that governments in general are
    inclined to want more and more information. Too much. That is
    why what we address in our testimony is, in fact, standards
    that all governments should be asked to undertake in terms of
    disclosure, in terms of limits.
        The difficulty is that the United States is in a very
    difficult position in credibility when we are seen to have an
    extremely pervasive, effective, widespread, and some would say
    not effectively limited process. No, by no means do we want----
        Senator Whitehouse. Do you think that--hold on--the Chinese
    and the Russians actually are more effectively limited by the
    government performing----
        Mr. Black. No, I am not suggesting that at all.
        Senator Whitehouse [continuing]. Surveillance activity than
    the United States is?
        Mr. Black. No, I am not suggesting--I am not doing a
    comparison. First of all, I believe we do have some checks and
    balances that have some effectiveness. Do not get me wrong. You
    asked a question is the perception of the world----
        Senator Whitehouse. Indeed they are far better than any
    other country's checks and balances that are engaged in this
    kind of behavior, correct?
        Mr. Black. I am not going to talk to all of the countries.
    I certainly hope we have better ones----
        Senator Whitehouse. Are you aware of any other country that
    has a better----
        Mr. Black. I think there are many other countries that do
    not probably do as much collection as we do.
        Senator Whitehouse. I can name some. There are some very
    tiny little countries that probably barely run a phone system.
    But in terms of our major competitors, in terms of the major
    economic and political actors on the world stage, the ones----
        Mr. Black. I think that----
        Senator Whitehouse [continuing]. That we are all thinking
    of----
        Mr. Black. I guess the question----
        Senator Whitehouse [continuing]. None of whom have more
    robust protection----
        Mr. Black. We are trying to say, what kind of future do we
    want, what kind of Internet do we want? Do we want an open
    Internet, an Internet which provides tremendous economic
    growth, tremendous empowerment, tremendous diplomatic and
    political opportunities around--for billions of people around
    the world? Do we want one where people can have association
    with other people without being spied on by their government or
    our Government or any other government? Is that a desirable
    outcome? If so, how do we take steps to move in that direction?
    Or do we accept the reality that all governments are going to
    do a maximum collection and go in the Big Brother direction as
    far as they can go and we are just in an arms race to do that?
    I do not think that is a future I look forward to.
        It is difficult to want to restrain a government's desire
    for more information, especially I think our Government, where
    we have well-motivated people who care about national security,
    who really do believe in the motivation of what they are doing.
    But they are zealous and effective, and they are, in fact, in a
    position where they are able to gather a great deal of
    information.
        Senator Whitehouse. So you think our Government's security
    services are more dangerous to civil liberties than the
    government security services of China and Russia?
        Mr. Black. Are they more interested? Absolutely. Much more
    interested in protecting civil liberties, absolutely.
        Senator Whitehouse. No, no. More----
        Mr. Black. No doubt about it.
        Senator Whitehouse [continuing]. Intruding into civil
    liberties. You agree that our Government oversight of our
    national security establishment is far more interested in
    protecting civil liberties----
        Mr. Black. I think it attempts----
        Senator Whitehouse [continuing]. Of those of competitors
    like China and Russia?
        Mr. Black. Well, again, I cannot compare to other people. I
    do not know the details. I certainly have a presumption about
    how ineffective any controls they would have. I would hope----
        Senator Whitehouse. You put it----
        Mr. Black. I would hope that with our Constitution we would
    have a really effective system. Do I think we have lived up to
    the best intent and good faith of our Constitution with the
    legal structures we have created that allow their surveillance?
    No, I do not think we have lived up to the principles, the core
    principles of the First Amendment and Fourth Amendment as
    faithfully as we could. Are we better than totalitarian
    regimes? Of course. That is not a question that I think is
    fair.
        Senator Whitehouse. You take a different view, I guess,
    than the courts that have overlooked this which have not found
    Fourth Amendment violations in any of this?
        Mr. Black. I think some of those decisions have historical
    positions that are based--I mean, Business Records, for
    example----
        Senator Whitehouse. But there is no present decision----
        Mr. Black. When the Business Records----
        Senator Whitehouse [continuing]. That supports your legal
    point of view?
        Mr. Black. Excuse me?
        Senator Whitehouse. There is no present decision by any
    court that suggests that there has been--that this has operated
    in violation of the Fourth Amendment. It would take a new
    decision to make that conclusion that has not yet been rendered
    by any court. Is that not correct?
        Mr. Black. I would suggest that various efforts to get
    those questions raised----
        Senator Whitehouse. Well, you are the one----
        Mr. Black. In the courts have been denied.
        Senator Whitehouse. You are the one who said that this was
    being operated in violation of the Fourth Amendment. I am
    asking you if you can cite a case that supports that
    proposition.
        Mr. Black. I believe the FISA Court made a ruling that
    certain practices had violated their----
        Senator Whitehouse. Orders.
        Mr. Black. The orders. Well, I think the orders----
        Senator Whitehouse. But not the Fourth Amendment----
        Mr. Black. Were based on the Constitution.
        Senator Whitehouse. Professor Cordero, for how long has
    incidental collection of communications with people who are not
    the subject of the warrant been a fact of life in law
    enforcement?
        Professor Cordero. Well, both on the criminal side and on
    the national security side, there always is going to be
    incidental collection. So the criminal Title III wiretaps
    handle it in one way. On the national security side, it is
    handled through minimization procedures for U.S. person
    communication. So it has always been a factor. The minimization
    procedures particularly on--well, any of the FISA minimization
    procedures are approved by the Court, including on the 702
    collection.
        Senator Whitehouse. So for as long as there has been any
    authorized Government interception of communications,
    incidental collection has always been a part of that
    necessarily.
        Professor Cordero. That is right.
        Senator Whitehouse. I have gone over my time. Senator
    Blumenthal is here. Let me yield to the distinguished Senator
    from Connecticut.
        Senator Blumenthal. Thank you, Mr. Chairman, and thank you
    all for being here.
        Let me focus on FISA Court reforms. Mr. Sanchez, I wonder
    if you could tell me your position on implementing some kind of
    adversarial process as I have advocated be done through a
    constitutional advocate and other reforms in the FISA Court
    that might be feasible.
        Mr. Sanchez. I would step back from that for a moment and
    just say that in cases where you have something that is an
    authority that was clearly, I think, envisioned as something
    relatively targeted to acquisition of records with some nexus
    to terror or espionage suspects, the appropriate move at that
    point, if it is believed that some kind of bulk collection is
    necessary, some kind of more programmatic use of that authority
    is necessary, is to return to Congress and not to, in fact,
    leave that decision in the hands of the FISA Court. One
    suggested approaching this with a rule of----
        Senator Blumenthal. In other words, the FISA Court should
    not be making law.
        Mr. Sanchez. When a request is so broad as to effectively,
    I think, exceed what anyone conceived as the authority, it
    would be better to have congressional authorization. In closer
    cases, I think what we can see from some of the opinions that
    have now been released first is that it would, I think, benefit
    the Court's proceeding when novel questions of law are present
    to have some kind of adversarial--or I guess to raise opposing
    arguments, but also I think in particular to have technical
    expertise. I alluded briefly earlier to a kind of tricky
    constitutional wrinkle with respect to the use of pen register
    authority to intercept metadata where you do not just have, as
    with a phone call, the number and the content, but layers of
    metadata and content with----
        Senator Blumenthal. Do you think, though, that we ought to
    have a constitutional advocate?
        Mr. Sanchez. I think that would be extraordinarily helpful,
    but also I think a technical advisory capacity of some kind
    would be useful, because sometimes I think the most difficult
    questions turn not just on the abstruse details of law or
    technology, but about the ways they intersect in surprising
    ways where often there is not precedent directly on point.
        Senator Blumenthal. Thank you.
        Professor Cordero, I gather you feel there is no need for a
    constitutional advocate or some kind of adversarial process,
    but you would be willing to support some kind of amicus curiae
    process?
        Professor Cordero. Thank you, Senator. Well, certainly
    since the October hearing, this conversation has evolved, and
    so, you know, there are different proposals. In my view, as we
    discussed at the prior hearing, based on the current procedures
    that take place within--between the Department of Justice and
    the intelligence community and the Court, in my view there does
    not--I think that the current process is sufficient that facts
    from the other side are presented to the Court, the Court has
    independent legal advisers. These are independent Article III
    judges who make judgments on their own. So, in my view, there
    actually does not need to be an adversarial process, and I
    think the current process is sufficient.
        However, between the competing legislative proposals,
    between establishing an Office of Special Advocate versus the
    proposal to enable the Court to call upon an amicus if the
    Court believes it needs it, I believe that the second option
    would be the better of the two options.
        Senator Blumenthal. And that is because you are loath to
    create a ``bureaucracy''? Or what is the reason?
        Professor Cordero. Sure. Several reasons. So one is yes, I
    think that the FISA process already is very heavily
    bureaucratic, it is heavily layered. There are multiple offices
    and legal offices and different layers of management that are
    involved in reviewing FISA matters. So I think it already is
    very bureaucracy heavy, and I think that the way that the
    Office of Special Advocate is described in this legislative
    proposal, it would simply add to that process.
        I also am concerned that over time there has been a
    relationship of trust and a very constructive relationship
    between the executive branch and the FISA Court, and I actually
    worry that an Office of Special Advocate would in some way harm
    that sort of established relationship of trust by being in the
    middle.
        With respect to the proposals to add an amicus, you know,
    again, if the Court----
        Senator Blumenthal. Isn't the problem that this
    relationship of trust has actually undermined trust in the
    American public and really threatens to completely eviscerate
    confidence in a system that operates in secret, makes secret
    law, and in the end the relationship of trust may undermine the
    whole system?
        Professor Cordero. Well, although, Senator, I would say
    that actually a concern about the Office of Special Advocate is
    that it will have to operate in secret, too. And so just as the
    creation of the FISA Court in 1978 and the creation of the
    office that worked in the Justice Department that was an
    independent, non-political office at the time was created in
    order to establish trust and be sort of this independent
    participant in the process, now people do not--you know, they
    are questioning the FISA Court. And so I do not know that over
    time--although in the sort of immediate future I can see how
    the Office of Special Advocate might be appealing, I do not
    actually think in the long term, because it will operate in
    secret, because it will sort of become part of this whole
    process, that in the long term it really will restore that----
        Senator Blumenthal. Well, it would operate in secret, but
    it could be combined with other reforms that would provide for
    some greater measure of transparency to the FISA Court's
    opinions when it makes new law that affects Americans around
    the world or at least in our country. Perhaps there ought to be
    more of these rulings and opinions that are made public.
        But at any rate, my time has expired. I thank you, Mr.
    Chairman, and thank each of the witnesses for being here today.
        Senator Whitehouse. Thank you, Senator Blumenthal. I am
    also grateful to the witnesses for the trouble that they have
    taken to come in and help inform this Committee as we go about
    our decisions, and I welcome them.
        We will hold the record of this hearing open for 1
    additional week for any further materials anybody wishes to
    submit, and with that, we will adjourn the hearing.
        [Whereupon, at 4:07 p.m., the Committee was adjourned.]
        [Additional material submitted for the record follows.]

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