[Congressional Record (Bound Edition), Volume 159 (2013), Part 7]
[House]
[Pages 9171-9174]
[From the U.S. Government Publishing Office, www.gpo.gov]




          FOREIGN--NOT DOMESTIC--INTELLIGENCE SURVEILLANCE ACT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2013, the gentleman from Florida (Mr. Grayson) is recognized 
for 60 minutes as the designee of the majority leader.
  Mr. GRAYSON. Mr. Chairman, I rise today to discuss shocking 
revelations reported in the media starting last Wednesday, that is 9 
days ago, and continuing for several days afterward, regarding the 
scope of the NSA's spying program, including both foreigners and 
Americans.
  The NSA is the National Security Agency. Its duty is, as part of DOD, 
to protect us against foreign attacks, just as DOD itself is supposed 
to protect us against foreign attacks. And DOD, like the CIA, is on the 
side of the firewall dealing with foreign threats as opposed to the FBI 
and the Justice Department who deal with domestic threats.
  As of a week ago last Wednesday, the Guardian reported that a 
particular court order had ordered Verizon, the largest cellular 
telephone company in America, to turn over its call records for all of 
its calls--all of its calls.
  I have the document from the Guardian's Web site here in front of me. 
It is a document that is issued as a secondary order by what's known as 
the FISA Court. That court is the Foreign Intelligence Surveillance 
Court established under the Foreign Intelligence Surveillance Act.
  Let's start with the name of the court, the Foreign Intelligence 
Surveillance Court. As the name of the act implies, the jurisdiction of 
the court is limited to foreign surveillance and foreign threats. This 
is by statute.
  The order itself was printed and posted at the Web site. Millions of 
people have seen it since then. What it purports to be--I say purports 
to be, but, in fact, the agency involved in the NSA has not denied that 
this is a valid, real document--it says that the court, having found 
application of the Federal Bureau of Investigation for an order 
requiring the production of tangible

[[Page 9172]]

things from Verizon--specifically Verizon Business Network Services, et 
cetera, et cetera--orders that the custodian of records produce--not to 
the FBI--but to the National Security Agency, a component of the 
Defense Department, upon service of this order, and continued 
production on an ongoing, daily basis thereafter for the duration of 
this order, unless otherwise ordered by the court, an electronic copy 
of the following tangible things:

                              {time}  1350

  Right here. Take a look at it.
  These tangible things are identified in the order as follows:
  All call detail records or telephony metadata created by Verizon for 
communications 1) between the United States and abroad--it sounds like 
it might be international--and then 2) wholly within the United States, 
including local telephone calls.
  On its face, this is an order for Verizon--our largest cellular 
telephone company--to turn over call records for every single call in 
its possession. Mr. Chairman, that includes calls by you, it also 
includes calls by me. In fact, it includes calls by me when I call my 
mother or my wife or my daughter. For those who are listening on C-SPAN 
or otherwise, it includes every call by you.
  Now, the first question that comes to mind is: Is this just for 
Verizon? Well, we don't know for sure, at this point, but the NSA has 
not denied that there are orders similar in extent for MCI, for AT&T, 
for Sprint, for every telephone company that carries any significant 
amount of data or calls in this country.
  Another question is: How far back does this order go? The order 
itself is dated on its face April 25, 2013. One of the more interesting 
things about this order, posted on the Guardian's Web site, is that it 
has no starting date. Under this order--under the plain terms of this 
order--Verizon has to go and give the Federal Government--specifically 
the Department of Defense, the NSA--all of its call records of all of 
its calls going back to the beginning of time. And this obligation 
continues until July 19, 2013, presumably because the order will be 
renewed at that point upon request of the NSA and the FBI.
  Let's be clear about this. This appears to be an order providing that 
our telephone companies providing service to us turn over call records 
for every single telephone call, regardless of whether it's 
international or not.
  Now, if somebody had come to me 9 days ago and said to me, 
Congressman Grayson, do you think that the Defense Department is taking 
records of every telephone call that you make or I make or anyone else 
makes, I would say, no, I have no reason to believe that. It would 
shock me if it was true.
  Well, it is true and it does shock me. Why should we have our 
personal telephone records, the records of whom we call, when we speak 
to them, how long we are talking, why should we have that turned over 
to the Defense Department? What possible rationale could there be for 
that?
  Well, I'll tell you what I think the rationale might be: because 
somehow that makes us safer. Well, let me say to the NSA and to the 
Defense Department, you can rest assured there is no threat to America 
when I talk to my mother.
  Now, what exactly is wrong with this? What's wrong with this, first 
of all, is that there is a firewall between the Defense Department and 
the CIA on the one hand, and the FBI and the Department of Justice on 
the other. One protects us from international threats, the other one 
protects us from domestic threats. That's been the law in America since 
the 1870s when Congress enacted and the President signed the Posse 
Comitatus Act. And this order crushes that distinction. It eliminates 
it, it obliterates it, it kills it now and forever.
  Now, the second thing that is offensive about this court order is 
that it clearly violates the Fourth Amendment. The Fourth Amendment 
reads as follows:

       The right of the people to be secure in their persons, 
     houses, papers, and effects against unreasonable searches and 
     seizures shall not be violated, and no warrants shall issue 
     but upon probable cause supported by oath or affirmation, and 
     particularly describing the place to be searched, and the 
     persons or things to be seized.

  Now, first of all, when the government seizes your phone records, 
unless you happen to be Osama Bin Laden or someone close to him, there 
is no reason why the government would believe or have reason to believe 
probable cause that you've committed a crime or you're going to commit 
a crime or you have any evidence about someone committing a crime. 
There's no probable cause here.
  Secondly, the Fourth Amendment requires particularity. There's no 
particularity when the government insists by court order and under 
threat of further action that Verizon or AT&T or Sprint or anyone else 
be required to turn over their phone records to the government. There's 
no particularity.
  This really is the essence of the matter. Because if you ask the NSA 
for justification, they'll say: Well, it's legal. What do you mean it's 
legal?
  Well, according to their published statements, including a statement 
by their Director last Saturday, they maintain that it's legal because 
of a single Supreme Court case decided in 1979 that said that the 
government, specifically local police authorities, could acquire the 
phone records of one person once. That's the case of Smith v. Maryland 
in 1979.
  Because the Supreme Court says that, at that point, the government 
could acquire the phone records of one person once, the NSA is 
maintaining that its entire program is legal and that it can acquire 
the phone records of everyone, everywhere, forever. That is a farce.
  Now, the other document that came to light last Thursday--in other 
words, 8 days ago as I speak--was a document, again posted at the 
Guardian's and then later at the Washington Post's Web site. This is a 
document that is a PowerPoint presentation, which according to the 
reports was a PowerPoint presentation to analysts working for the NSA. 
This PowerPoint presentation is labeled ``PRISM/US-984XN Overview,'' or 
``the SIGAD Used Most in NSA Reporting.''
  What you see to my right is the reproduction of what was posted at 
the Web site a week ago. First of all, note that there are certain 
logos at the top of the page:
  Gmail, which for those of you who are not familiar, is the largest 
provider of email services and hosting. It's run by Google.
  Facebook. Many of us are familiar with that. I think my children are 
all too familiar with it and spend an awful lot of time on it. Facebook 
allows, among other things, private messaging between friends.
  Hotmail, which is Microsoft's email server and service.
  Yahoo, which performs a variety of functions, including, among other 
things, hosting a large number of Web pages. And by the way, when you 
go to their Web page they can tell who you are from your IP address. 
And also a very widely used email service.
  Google. I think Google needs no introduction, but I've already 
introduced it. Google allows you to do web searches. It, together with 
Microsoft, has almost 90 percent of the Web search market in the United 
States. They keep a record of the searches that you make based upon 
your IP address.
  Skype, which is a telephone company that transmits calls 
electronically over the Internet.
  PalTalk. I'm puzzled. I don't know what that one is.
  YouTube, which is the largest host of videos in the world, and again, 
can tell which videos you're looking at by your IP address.
  And AOL Mail, which, as it sounds, is the America Online email 
service.
  This document is dated at the bottom April of 2013, meaning last 
month--or maybe 2 months ago.
  Let's take a look inside. One of the pages that's been produced on 
the Guardian and Washington Post Web site is this:
  By way of background, it's been reported that this is part of a 
longer document. It's 41-pages long. Only 5 pages have been released to 
the public through the Guardian and through the Washington Post.

[[Page 9173]]



                              {time}  1400

  So I'm sharing with you the five pages that were released a week ago 
and are now public. Let's take a look at this one. This one says that 
the NSA's PRISM program performs the following functions--and bear in 
mind, this is purported to be a training document given to NSA analysts 
to explain what they can do in this program.
  Who are the current providers to the program?
  Microsoft's Hotmail, et cetera, Google, Yahoo!, Facebook, Paltalk, 
YouTube, Skype, AOL, and Apple.
  What are they providing? Specifically, as the document says, What 
will you--meaning the analyst--receive in collection, collection from 
surveillance and stored communications?
  The document says it varies by provider. We don't know how it varies, 
but, in general, what you get is the following: email. The NSA gets 
email from these providers. It gets Video and Voice Chat, videos, 
photos, stored data, VoIP, which is an electronic version of your 
actual words when you are speaking on the phone. VoIP stands for 
``Voice over Internet Protocol.'' It's your voice. It gets file 
transfers, video conferencing, notification of target activity, 
including log-ons--in other words, are you on your computer or not?--et 
cetera, online social network details, and what is beliedly referred to 
as ``special requests,'' as if all of that weren't enough already.
  You might wonder: How does the government actually get this 
information? The five pages that are released give us one answer to 
that question. Let's take a look at that.
  If you look at the bottom, the green rectangle, you'll see that it 
says that PRISM collection is directly from the servers of these U.S. 
service providers: Microsoft, Yahoo!, Google, Facebook, Paltalk, AOL, 
Skype, YouTube, and Apple.
  Since it's addressed to the trainees at the NSA, to the people who 
will actually be doing the analysis of this data--and with the 
injunction on the left which says you should do both--the plain meaning 
of this is that the NSA apparently has the capability to collect 
directly from the servers of these service providers the information on 
the previous page--in other words, our emails, our chats, our videos, 
our photos, our stored data, our Voice over Internet Protocol, our file 
transfers, our video conferencing, our log-ins, et cetera, et cetera.
  Now, there is an interesting distinction between these two documents:
  In the first case, with regard to the court order, the NSA's position 
is that it's a valid court order, and we regard it as legal. If you 
don't like it, that's too bad with you. Go change the law--to which I 
say, fine, I'm going to try to change that law.
  With regard to the second document, the situation is a little more 
ambiguous. What the NSA has said publicly is that the green rectangle 
is actually not correct. Now, bear in mind, no one has said that this 
is not an NSA document. No one has said that it's Photoshopped. No one 
has said that it is anything other than what it purports to be and what 
it was reported as.
  However, the NSA has taken the position that their own document is 
wrong for reasons that we don't know and that the NSA, in fact, does 
not have the capability to directly take-collect from the servers of 
these companies your emails, your Voice over Internet Protocol, your 
photos, and everything else. They say that they just don't do that. 
However, we are still waiting for an explanation of how this green 
rectangle ended up in this document. If it's not true, they need to 
explain how and why it's not true.
  The NSA also says that, for reasons not evident from this document at 
all, they don't do this for U.S. citizens. Now, that raises a host of 
questions. You might think that there might be something else in this 
document that says that, but the NSA hasn't maintained that. In other 
words, they haven't said, If you look somewhere else in this document, 
you'll find that we don't do this for U.S. citizens.
  Unless you think that this is somehow selective on my part or on 
anybody else's part, it has been reported that the whistleblower 
provided this entire document--all, apparently, 41 pages--to The 
Guardian and to The Washington Post, and they decided on their own to 
release only these five.
  So if there is something that indicates that the NSA is only doing 
this for Americans, apparently it's not in this document, and we've 
reached a strange point where people are being trained in the NSA to 
have the ability to get the emails and the other information on 
Americans, but somehow we are told later, separately, that that's not 
correct. In addition to that, the NSA says that there is some process 
by which they can distinguish between the emails of Americans and the 
emails of foreigners.
  Frankly, that is a technology so advanced to me that it seems like it 
might be magic. I used to be the president of a telephone company. I 
have literally no idea how I could distinguish between the email 
accounts of an American and a foreigner. I don't know how to do it. 
Maybe they can tell us how they do it if they're doing it at all. 
That's the real question: if they're doing it at all. I don't know how 
they could possibly say this email account is for a foreigner, and this 
email account is for an American. If they can't, that means they're 
taking all this stuff--American and foreign--and having it, using it, 
looking at it, and destroying our privacy rights.
  That really is the heart of the matter here.
  I don't understand why anyone would think that it's somehow okay for 
the Department of Defense to get every single one of our call records 
regardless of who we are, regardless of whether we are innocent or 
guilty of anything. I venture to say that there are Americans who have 
never even had a parking ticket; yet the Defense Department is pulling 
their call records as well. Eventually, we will find out whether the 
NSA's own document is misleading and whether the NSA is not pulling 
email accounts and emails and photos and VoIP calls on people who are 
Americans, because, if you read this document, it sure looks like they 
are.
  This is not the first time that we have had this problem. This is not 
the first time that the government has entered into surveillance on 
people without probable cause. Many of us remember that there was FBI 
surveillance of Martin Luther King, including the wiretapping and 
bugging of his personal conversations. I thought, perhaps naively, that 
we had moved beyond that. In some sense, we have moved beyond that 
because now they're doing it to everyone. In fact, one could well say 
that we are reaching the point at which Uncle Sam is Big Brother.
  I submit to you that this program, although the proponents picked it 
as American as ``apple spy,'' is an anti-American program. We are not 
North Koreans. We don't live in Nazi Germany. We are Americans and we 
are human beings, and we deserve to have our privacy respected. I have 
no way to call my mother except to employ the services of Verizon or 
AT&T or some other telephone company. I'm not going to string two cups 
between my house and her house 70 miles away. That doesn't mean that 
it's okay with me for the government--and specifically the Department 
of Defense--to be getting information about every telephone call I make 
to her. It's not okay with me.
  I submit to you, Mr. Speaker, it's probably not okay with you, and I 
know that, for most of the people who are listening to me today, it's 
not okay with you either.

                              {time}  1410

  Then Franklin said:

       Those who would give up essential liberty to purchase a 
     little temporary safety, deserve neither liberty nor safety.

  I agree with that. We do not have to give up our liberty to be safe.
  I have already heard from people who tell me that they're afraid that 
they're going to be blown up by some terrorist somewhere, that they're 
afraid their personal safety is at risk, and it's okay with them if the 
government spies on them.
  Well, it's not okay with me. And I stand here on behalf of the 
millions of Americans who are wanting to say, It's not okay with me 
either. I'm fed up, and I'm not going to take it any more.

[[Page 9174]]

  When we had the Civil War and there were 1 million armed men in this 
country who rose up heavily armed to fight against our central 
government, we did not establish a spy network in every city, every 
town, every village, every home; but that's what we've done right now.
  When I was growing up and we had 10,000 nuclear warheads pointed at 
us and some people believed there was a Communist under every bed, even 
then we did not establish a spy network as intrusive as this one.
  I submit to you that this has gone way too far and that it's up to us 
to tell the Defense Department, the NSA, the so-called ``intelligence 
establishment,'' we've had enough. We are human beings. We are a free 
people. And based upon this evidence, we're going to have to work to 
keep it that way. That's what I'll be doing. I hope you'll join me.
  With that, I yield back the balance of my time.

                          ____________________