[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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