DEPUTY AG YATES TESTIFIES BEFORE SENATE JUDICIARY COMMITTEE REGARDING PRIVACY RIGHTS AND PUBLIC SAFETY

FROM:  U.S. JUSTICE DEPARTMENT
Deputy Attorney General Sally Quillian Yates Delivers Oral Testimony Before the Senate Judiciary Committee
Washington, DC United States ~ Wednesday, July 8, 2015
Remarks as Prepared for Delivery

Good morning, Chairman [Chuck] Grassley, Ranking Member [Patrick] Leahy and members of the Judiciary Committee.  Thank you for the opportunity to testify today about the information and evidence-collection problem we commonly describe as “going dark.”

Twenty-five years ago, I started my Justice Department career as a line prosecutor in Atlanta.  I worked every kind of case you can imagine—from guns and drugs to financial fraud and terrorism.

During that time, the world has changed in remarkable ways.  Technological innovations have revolutionized the ways we communicate with colleagues and loved ones.  And increasingly sophisticated means of encryption have helped to ensure that these communications remain private.  For many reasons, these have been good developments—and ones that the Department of Justice embraces.

But it’s important that we do not let these technological innovations undermine our ability to protect the community from significant national security and public safety challenges.  The Fourth Amendment of the Constitution and our criminal justice system provides a well-developed framework for a careful balance between privacy rights and public safety by adhering to the basic principle of judicial authorization established by probable cause and determined by a neutral judge.  that framework governs searches of all our communications, regardless of whether they are by private letters or smartphone [messages], and regardless of whether we are wiretapping a landline or intercepting instant messages sent over the latest applications.  This framework has protected the interests that we all have in safety and privacy for many years.

But recent technological innovations threaten that careful balance.  Although we still have the statutory authorities that congress provided to protect the community, like the Wiretap Act and FISA (the Foreign Intelligence Service Act of 1978)—increasingly, we’re finding that even when we have the authority to search certain types of digital communications, we can’t get the information we need because the encryption has been designed so that the information is only available to the user and the providers are unable to comply with the court order or warrant.  The need and justification for the evidence has been established—and yet that evidence cannot be accessed.  Crucial information becomes, in effect, “warrant proof.”

Because of this, we are creating safe zones where dangerous criminals and terrorists can operate and avoid detection.  And it impacts us in two ways: we can’t get access to information that is stored on someone’s smartphone, like a child pornographer’s photographs or a gang member’s saved text messages, known as data at rest.  And we also can no longer effectuate wiretap orders to intercept certain communications as they happen, like ISIL members plotting to carry out an attack in the U.S., or a kidnapper communicating with a coconspirator.  This is known as data in motion.  These technological changes come with real national security and public safety costs.

In the six short months that I’ve served as Deputy Attorney General, I’ve seen the threat picture from ISIL change.  ISIL currently communicates on Twitter, sending communications to thousands of would-be followers right here in our country.  When someone responds and the conversations begin, they are then directed to encrypted platforms for further communication.  And even with a court order, we can’t see those communications.  This is a serious threat and our inability to access these communications, with valid court orders, is a real national security and public safety problem.

The current public debate about how to strike the careful balance between privacy rights and public safety has at times been a challenging and highly charged discussion.  I believe that we have to protect the privacy of our citizens and the safety of the Internet.  But those interests are not absolute.  And they have to be balanced against the risks we face from creating warrant-proof zones of communication.

There are no easy answers to this dilemma, and reasonable people can disagree on where that balance should be struck.  I don’t think that we advance the analysis to vilify those who prioritize privacy for their customers.  But from where I sit, as the Deputy Attorney General, I believe that the balance must be struck in such a way that allows us to continue to enforce court orders to obtain the critical information we need to combat crime and national security threats.  But regardless of how one believes the balance should be struck, we can all agree that we will need ongoing honest and informed public debate about how best to protect both our liberty and our security.

Thank you again for giving us an opportunity to highlight this growing threat to public safety.  We must find a solution to this pressing problem and soon.  The government’s ability to protect our nation from our most pressing threats—both foreign and domestic—depends on it.

I look forward to answering your questions.

JUSTICE OFFICIALS TESTIFY BEFORE SENATE JUDICIARY COMMITTEE ABOUT FISA COURT

FROM:  U.S. JUSTICE DEPARTMENT 
Deputy Attorney General James M. Cole, Director Keith B. Alexander and General Counsel Robert S. Litt Testify Before the U.S. Senate Judiciary Committee

Washington, D.C. ~ Wednesday, December 11, 2013

Thank you for inviting us to continue our discussions with this Committee on our efforts to enhance public confidence in the important intelligence collection programs that have been the subject of unauthorized disclosures since earlier this year: the collection of bulk telephony metadata under the business records provision found in Section 215 of the USA PATRIOT Act, and the targeting of non-U.S. persons overseas under Section 702 of FISA. As we have emphasized in previous appearances before this and other Committees, we remain committed, as we review any modifications to these authorities, both to protecting privacy and civil liberties in the conduct of our intelligence activities, in a manner consistent with the Constitution, the law and our values, and to ensuring that we continue to have the authorities we need to collect important foreign intelligence to protect the country from terrorism and other threats to national security. We also remain committed to working closely with this Committee as any modifications to these activities are considered.

A key step in promoting greater public confidence in these intelligence activities is to provide greater transparency so that the American people, as well as ordinary citizens around the world, understand what the activities are, how they function, and how they are overseen. As you know, many of the reports appearing in the media concerning the scope of the Government’s intelligence collection efforts have been inaccurate, including with respect to the collection carried out under Sections 215 and 702. In response, the Administration has released substantial information since June to increase transparency and public understanding, while also working to ensure that these releases are consistent with national security. We welcome the opportunity to discuss ways to make more information about intelligence activities conducted under FISA available to the public in a meaningful and responsible way. At the same time, we are mindful of the need not to publicly disclose information that our adversaries could exploit to evade surveillance and harm our national security. There is no doubt that the recent unauthorized disclosures about our surveillance capabilities risk causing substantial damage to our national security, and it is essential that we not take steps that will increase that damage.

In keeping with this balance, in June the President directed the Intelligence Community to make as much information about the Section 215 and Section 702 programs available to the public as possible, consistent with the need to protect national security and sensitive sources and methods. Since then, the Director of National Intelligence has declassified and publicly released substantial information in order to facilitate informed public debate about these programs. Among other things, the Government has declassified and disclosed the primary and secondary orders from the FISA Court that describe in detail how the bulk telephony metadata collection program operates and the important restrictions on how the data collected under the program are accessed, retained, and disseminated. The Government has also released two recent FISA Court opinions, as well as an Administration white paper, that articulate in detail the legal authority and rationale for this program. We have also declassified and released to the public several other FISA Court opinions and orders concerning the two programs, including detailed discussions of compliance issues that have arisen during the programs’ history and the Government’s responses to these incidents. We have declassified and released extensive materials that were provided to the Congress in conjunction with its oversight and reauthorization of these authorities. Finally, just this week we have declassified and released additional materials, including FISA Court opinions relating to a separate program (no longer in operation) to collect certain internet metadata in bulk pursuant to court orders issued under the pen register/trap and trace provision of FISA (Section 402). Our efforts to promote greater transparency through declassification and public release of relevant documents are not yet complete. We will continue our efforts to promote greater transparency through declassification and public release of relevant documents, while carefully protecting information that we cannot responsibly release because of national  security concerns. These efforts are an important means of enhancing public confidence that the Intelligence Community is using its legal authorities appropriately, which has become increasingly important in the wake of confusion, concerns, and misunderstandings caused by the recent and continuing unauthorized disclosures of classified information.

As part of our ongoing efforts to increase transparency, the Director of National Intelligence has also committed to providing annual public reports that include nationwide statistical data on the Intelligence Community’s use of certain FISA authorities. Specifically, for each of the following categories of FISA and related authorities, beginning in January 2014 and on an annual basis thereafter, the Intelligence Community will release to the public the total number of orders issued during the prior twelve-month period and the number of targets affected by these orders:

FISA orders based on probable cause (Titles I and III and Sections 703 and 704 of FISA).
Directives under Section 702 of FISA.
FISA Business Records orders (Title V of FISA).
FISA Pen Register/Trap and Trace orders (Title IV of FISA).
National Security Letters issued pursuant to 12 U.S.C. § 3414(a)(5), 15 U.S.C.
This information will enable the public to understand how often the Intelligence Community uses these authorities nationwide, how many persons or entities are targeted by these efforts, and how these figures change over time. The Director of National Intelligence has concluded that providing this information on a nationwide basis is an acceptable course in light of the goal of public transparency, without unduly risking national security.

We also understand the concerns that specific companies have expressed as to their ability to inform their customers of how often data is provided to the Government in response to  legal process. In light of those concerns, we have authorized companies to report within certain ranges the total number of federal, state, and local law enforcement and national security legal demands they receive on a nationwide basis, and the number of user accounts affected by such orders. This allows companies to illustrate that those demands affect only a tiny percentage of their users, even taking all of the demands together, and thus to refute inaccurate reports that companies cooperate with the Government in dragnet surveillance of all of their customers. At the same time, this approach avoids the disclosure of information to our adversaries regarding the extent or existence of FISA coverage of services or communications platforms provided by particular companies

The scope of the voluntary disclosures by the Executive Branch concerning sensitive intelligence collection activities carried out under FISA is unprecedented. We hope that the information we have released, and will continue to release, will allow the public to understand better how our intelligence collection authorities are used. We also hope the public will appreciate the rigorous oversight conducted by all three branches of government over our intelligence activities, a whole of government approach that is unique and exacting in comparison to the many governments that conduct similar intercept programs with substantially less stringent oversight. The extensive oversight that we conduct helps to ensure that our activities protect national security, balance important privacy considerations, and operate lawfully.

In addition to the unprecedented steps we have taken to promote transparency, we are open to working with Congress on legislation designed to increase public confidence in these intelligence activities and enhance the protection of privacy and civil liberties. Regarding Section 215, we would consider statutory restrictions on querying the data that are compatible with operational needs, including perhaps greater limits on contact chaining than what the current FISA Court orders permit. We could also consider a different approach to retention periods for the data—consistent with operational needs—and enhanced statutory oversight and transparency measures, such as annual reporting on the number of identifiers used to query the data. To be clear, we believe the manner in which the bulk telephony metadata collection program has been carried out is lawful, and existing oversight mechanisms protect both privacy and security. However, there are some changes that we believe could be made that would enhance privacy and civil liberties as well as public confidence in the program, consistent with our national security needs.

On the issue of FISA Court reform, we believe that the ex parte nature of proceedings before the FISA Court is fundamentally sound and has worked well for decades in adjudicating the Government’s applications for authority to conduct electronic surveillance or physical searches in the national security context under FISA. However, we understand the concerns that have been raised about the lack of independent views in certain cases, such as cases involving bulk collection, that affect the privacy and civil liberties interests of the American people as a whole.

Therefore, we would be open to discussing legislation authorizing the FISA Court to appoint an amicus , at its discretion, in appropriate cases, such as those that present novel and significant questions of law and that involve the acquisition and retention of information concerning a substantial number of U.S. persons. Establishing a mechanism whereby the FISA Court could solicit independent views of an amicus in cases that raise broader privacy and civil liberties questions, but without compromising classified information, may further assist the Court in making informed and balanced decisions and may also serve to enhance public confidence in the FISA Court process.

While we remain open to working with Congress to effectuate meaningful reforms along the lines just described, we do not support legislation that would have the effect of ending the Section 215 program, which the Government continues to find valuable in protecting national security. And, while we support increased transparency, we do not support legislation that would require or permit public reporting of information concerning intelligence activities under FISA that could be used by our adversaries to evade surveillance, or which otherwise raises practical and operational concerns. The bill approved by the Senate Intelligence Committee includes a number of constructive provisions that we support and that we think will enhance protections for privacy and civil liberties without harming national security.

Finally, we want to address the Committee’s interest in the legal standard for collection of records under Section 215. As the Administration explained in a white paper that it published in August, the telephony metadata program satisfies the statutory requirement that there be “reasonable grounds to believe” that the records collected are “relevant to an authorized investigation . . . to obtain foreign intelligence information . . . or to protect against international terrorist or clandestine intelligence activities.” The text of Section 215, considered in light of the well-developed understanding of “relevance” in the context of civil discovery and criminal and administrative subpoenas, as well as the broader purposes of the statute, indicates that there are “reasonable grounds to believe” that the records at issue here are “relevant to an authorized investigation.” Specifically, in the circumstance where the Government has reason to believe  that conducting a search of a broad collection of telephony metadata records will produce counterterrorism information—and that it is necessary to collect a large volume of data in order to employ the analytic tools needed to identify that information—the standard of relevance under Section 215 is satisfied, particularly in light of the strict limitations on the use of the data collected and the extensive oversight of the program.

As noted above, two decisions of the FISA Court that have recently been declassified by the Government and released publicly by the Court explain why the collection of telephony metadata in bulk is constitutional and is authorized under the statute. These opinions reflect the independent conclusions of two federal judges serving on the FISA Court that the Government’s request for the production of call detail records under Section 215 meets the relevance standard and all other statutory requirements. Moreover, these opinions conclude that because the Government seeks only the production of telephony metadata, and not the content of communications, there are no Fourth Amendment impediments to the collection. Indeed, 15 separate judges of the FISA Court have held on 35 occasions that Section 215 authorizes the collection of telephony metadata in bulk in support of counterterrorism investigations. Last week, a district court in a criminal case in California also held that the collection of telephony metadata in bulk under Section 215 is consistent with the Fourth Amendment.

We appreciate that privacy concerns persist about the telephony metadata collection program, even considering the limited data the Government receives, the stringent constraints set by the FISA Court on how it is used, and the aforementioned legal rulings that have consistently upheld its legality. But we hope you will weigh those concerns against the increased risks to national security if this capability were terminated with no equivalent program that addresses what the 9/11 Commission pointed out as a critical gap in the ability of the intelligence community to detect and “connect the dots” for foreign terror plots against our homeland. This program fills a significant gap in our ability to identify terrorist communications and, together with other authorities, can help us identify and disrupt terrorist plots, thus fulfilling the vision of the 9/11 Commission, which implored the Government to undertake mechanisms and collaboration which would prevent the recurrence of another 9/11.

We look forward to answering any questions you might have about these important intelligence collection programs and related issues. We understand that there are a variety of views in the Congress and among the American people about these activities, and we look forward to discussing these issues with this Committee as new legislation concerning these activities is considered. We hope that, with the assistance of this Committee, we can ensure that these programs are on the strongest possible footing, from the perspective of both national security and privacy, so that they will continue to enjoy Congressional support in the future. Thank you.

OFFICIALS APPEAR BEFORE SENATE COMMITTEE TO DISCUSS INTELLIGENCE PROGRAMS

FROM:  U.S. DEFENSE DEPARTMENT 
Officials Discuss Intelligence Programs at Senate Hearing
By Cheryl Pellerin
American Forces Press Service

WASHINGTON, Sept. 27, 2013 - At a hearing yesterday before the Senate Select Committee on Intelligence, Army Gen. Keith B. Alexander, commander of U.S. Cyber Command and director of the National Security Agency, and Director of National Intelligence James R. Clapper Jr. discussed a NSA-managed classified intelligence program, one of two made public by a security leak in June.

Joining Alexander and Clapper was Deputy Attorney General James Cole. All were called to testify about both programs leaked to the press by former NSA systems administrator Edward Snowden -- Section 215 of the Patriot Act, also known as NSA's 215 business records program, and Section 702 of the Foreign Intelligence Surveillance Act, or FISA.

In the months since the leaks, media reports have said the programs involve secret surveillance by NSA of phone calls and online activities of U.S. citizens, and revealed unauthorized disclosures of information by NSA, generating distrust of the agency and calls for an end to the programs.

Section 702 of FISA and Section 215 of the Patriot Act both were authorized by the Foreign Intelligence Surveillance Act, first approved by Congress in 1978.

Section 702 authorizes access, under court oversight, to records and other items belonging to foreign targets located outside the United States. Section 215 broadens FISA to allow the FBI director or other high-ranking officials there to apply for orders to examine telephone metadata to help with terrorism investigations.

In 2012, these programs resulted in the examination of fewer than 300 selectors, or phone numbers, in the NSA database, Alexander said during a congressional hearing in July.

In his remarks, Cole described the 215 program, explaining that it involves collecting only metadata from telephone calls.

"What is collected as metadata is quite limited. ... It is the number a telephone calls ... It doesn't include the name of the person called," Cole said. "It doesn't include the location of the person called. It doesn't include any content of that communication. It doesn't include financial information ... It is just the number that was called, the date and the length of the call."

"If you want any additional information beyond that, you would have to go and get other legal processes to find that information and acquire it," he added.

Such metadata can only be looked at when there is a reasonable, articulable suspicion for a specific phone number to be queried in the database, Cole said.

"Otherwise," he said, "we do not and cannot just roam through this database looking for whatever connections we may think are interesting or in any way look at it beyond the restrictions in the court order."

Only a small number of analysts can make such a determination, and that determination must be documented so it can be reviewed by a supervisor and later reviewed for compliance purposes, Cole added. The program is conducted according to authorization by the FISA Court, which must reapprove the program every 90 days.

"Since the court originally authorized this program in 2006, it has been reapproved on 34 separate occasions by 14 individual Article Three judges of the FISA Court," Cole said. "Each reapproval indicates the court's conclusion that the collection was permissible under Section 215 and satisfied all constitutional requirements."

Article Three of the U.S. Constitution establishes the judicial branch of the federal government.

Oversight of the 215 program involves all three branches of government, including the FISA Court and the Intelligence and Judiciary Committees of both houses of Congress, Cole said. Every 90 days, the Department of Justice reviews a sample of NSA's queries to determine whether the reasonable articulable requirement has been met.

DOJ lawyers meet every 90 days with NSA operators and with the NSA inspector general to discuss the program's operation and any compliance issues that may arise, Cole explained.

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," he said.

"Those documents have since been declassified and released by the DNI to give the public a better understanding of how the government and the FISA court respond to compliance problems once they're identified," Cole said.

In his testimony, Alexander told the panel that NSA's implementation of Section 215 of the Patriot Act focuses on defending the homeland by linking foreign and domestic threats.

Section 702 of FISA focuses on acquiring foreign intelligence, he said, including critical information concerning international terrorist organizations, by targeting non-U.S. persons who are reasonably believed to be outside the United States.

NSA also operates under other sections of the FISA statute in accordance with the law's provisions, Alexander said.

"To target a U.S. person anywhere in the world, under the FISA statute we are required to obtain a court order based on a probable cause showing that the prospective target of the surveillance is a foreign power or agent of a foreign power," he explained.

"As I have said before, these authorities and capabilities are powerful," Alexander said. "We take our responsibility seriously."

NSA stood up a directorate of compliance in 2009 and regularly trains the entire workforce in privacy protections and the proper use of capabilities, he said.

"We do make mistakes," Alexander noted.

"Compliance incidents, with very rare exceptions, are unintentional and reflect the sorts of errors that occur in any complex system of technical activity," he said.

The press has claimed evidence of thousands of privacy violations but that is false and misleading, Alexander said.

"According to NSA's independent inspector general, there have been only 12 substantiated cases of willful violation over 10 years. Essentially one per year," he said. "Several of these cases were referred to the Department of Justice for potential prosecution, and appropriate disciplinary action in other cases. We hold ourselves accountable every day."

Of 2,776 violations noted in the press, he said, about 75 percent were not violations of court-approved procedures but rather were NSA's detection of valid foreign targets that traveled to the United States. The targets are called roamers and failure to stop collecting on them as soon as they enter the United States from a foreign country is considered a violation that must be reported.

"NSA has a privacy compliance program that any leader of a large, complex organization would be proud of," Alexander said. "We welcome an ongoing discussion about how the public can, going forward, have increased information about NSA's compliance program and its compliance posture, much the same way all three branches of the government have today."

NSA's programs have contributed to understanding and disrupting 54 terrorism-related events, Alexander told the panel, with 25 in Europe, 11 in Asia, five in Africa, and 13 in the United States.

"This was no accident. This was not coincidence. These are the direct results of a dedicated workforce, appropriate policy, and well-scoped authorities created in the wake of 9/11, to make sure 9/11 never happens again," Alexander said.

In the week ending 23 Sept., he said, there were 972 terrorism-related deaths in Kenya, Pakistan, Afghanistan, Syria, Yemen and Iraq. Another 1,030 people were injured in the same countries.

"The programs I've been talking about -- we need these programs to protect this nation, to ensure that we don't have those same statistics here," Alexander said.

With respect to reforms, he said, on Aug. 9 President Barack Obama laid out specific steps to increase the confidence of the American people in the NSA foreign intelligence collection programs.

"We are always looking for ways to better protect privacy and security," Alexander said. "We have improved over time our ability to reconcile our technology with our operations and with the rules and authorities. We will continue to do so as we go forward and strive to improve how we protect the American people, their privacy and their security."

In his remarks to the panel, Clapper said that over past 3 months he's declassified and publicly released a series of documents related to Section 215 Section 702.

"We did that to facilitate informed public debate about the important intelligence collection programs," he said. "We felt in the light of the unauthorized disclosures, the public interest in these documents far outweigh the potential additional damage to national security. These documents [allow them to] see the seriousness, thoroughness and rigor with which the FISA Court exercises its responsibilities."

Even in these documents, Clapper said, officials had to redact some information to protect sensitive sources and methods such as particular targets of surveillance.

"We'll continue to declassify more documents. It's what the American people want," he said. "It's what the president has asked us to do. And I personally believe it's the only way we can reassure our citizens that the intelligence community is using its tools and authorities appropriately."

But, Clapper said, "we also have to remain mindful of potentially negative long-term impact of over-correcting to the authorizations granted to the intelligence community."

Clapper added, "As Americans we face an unending array of threats to our way of life -- more than I've seen in my 50 years in intelligence. We need to sustain our ability to detect these threats. We welcome a balanced discussion about civil liberties but it's not an either-or situation. We need to continue to protect both."