Surveillance Programs Need More Oversight to Prevent Abuse of Power, House Judiciary Members Say

Section 215 of the Patriot Act allows for the collection of metadata from phone calls, but it doesn’t include personal information, location or content, said James Cole, Justice Department deputy attorney general. “It allows the government to collect the data, but not use it. We are only allowed to access data with a court order.” Section 702 of the FISA Amendments Act collects content from communications, said Cole. “Under the 702, the government applies to the FISA court for an order allowing it to collect the communication of non-U.S. persons reasonably believed to be overseas."

The Foreign Intelligence Surveillance Court needs to publicly release its opinions or declassify summarizes of the subpoenas, said Ranking Member John Conyers, D-Mich. “This solution would have the added benefit of subjecting the government’s legal claims to much-needed public scrutiny.” Chairman Bob Goodlatte, R-Va., said he was surprised the Section 215 program hadn’t been disclosed to the public earlier. “A judgment was made that to disclose the existing program would have provided information to people who were seeking to avoid our surveillance to tell them that we are looking for the communication that they are having with Americans and using that a basis of tracking them in the United States,” said Robert Litt, general counsel of the Office of the Director of National Intelligence, during questioning by Goodlatte. If people know “the way we go about trying to identify terrorist networks,” then terrorists will “avoid the ways that we used to do that,” Cole responded to a question by Rep. Hank Johnson, D-Ga.

Goodlatte asked how the National Security Agency deals with information incidentally received about U.S. citizens from Section 702 requests through minimization procedures. “We have an obligation to first discover whether or not that information relates to foreign intelligence,” said John Inglis, NSA chief of operations. “If it relates to foreign intelligence, we would suppress the identity of that person in the report that we would make and if not relevant, we would take action to destroy that communications onsite immediately.” Metadata in the Section 215 program can only be used when there is a reasonable suspicion based on facts that a phone number is associated with a specific terrorist organization, said Inglis. In 2012, the NSA did searches on fewer than 300 identifiers and only 22 people are allowed to approve the selectors used to search the database, and 11 people are authorized to release the query results believed to be associated with the selectors, said Inglis. “Reports are filed every 30 days, with the selectors approved, and the Justice Department conducts onsite review of the program every 90 days."

Several committee members said the collection of metadata could be considered a constitutional violation. Rep. Ted Poe, R-Texas, said the program violates the search and seizure requirements of the Fourth Amendment. Litt responded that “warrants are brought to judges by law enforcement to seek out that person in a specific place.” He cited the 1972 Supreme Court decision in U.S. v. U.S. District Court as evidence that the “Fourth Amendment does not extend to the conduct of foreign intelligence.” Witnesses emphasized how the strict regulations lead to no abuse. “If the FISA court is not satisfied with our requests, we will respond to that. It’s not unlike any other process,” said Cole in response to a question from Rep. Howard Coble, R-N.C. The House Judiciary Committee will have a closed hearing soon to discuss classified information with government officials, said Goodlatte.