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The Obama administration's recently disclosed implementation of sweeping internet and phone surveillance efforts drew bipartisan outrage during a July 17 House Judiciary Committee hearing that provided the panel's first in-depth examination of related legal and privacy questions.
Among other concerns, senior U.S. intelligence officials were grilled over the administration's use of Section 215 of the PATRIOT Act, which is designed to facilitate the tracking of potential terrorists, to justify the mass collection of data on ordinary phone customers across the country.
“This is unsustainable, it's outrageous, and it must be stopped immediately,” Rep. John Conyers (D-Mich.), Judiciary ranking member, said. “It's clear to me that we have a very serious violation of the law.”
Under Section 215, the government can compel U.S. businesses to turn over records that are “relevant” to a terrorism investigation after obtaining an order from the Foreign Intelligence Surveillance Court, which clears such activity through secretive proceedings.
In addition to Conyers, a number of other committee members on both sides of the aisle argued that the administration has interpreted Section 215 too broadly.
“The problem we're hearing is that everything in the world is relevant,” Rep. Jerrold Nadler (D-N.Y.) said.
Rep. Jim Sensenbrenner (R-Wis.), a former chairman of the committee and a chief architect of the PATRIOT Act, warned that the intelligence community is in danger of losing the Section 215 authority, which is due to expire in 2015, because of concerns over how it has been used.
“Unless you realize you've got a problem, that [provision] is not going to be renewed,” Sensenbrenner told administration witnesses.
Rep. Bob Goodlatte (R-Va.), Judiciary chairman, said he was surprised about the administration's decision to implement the phone surveillance program without disclosing it to the public.
“Do you think a program of this magnitude … could be indefinitely kept secret from the American people?” Goodlatte asked.
“Well, we tried,” said Robert Litt, general counsel of the Office of the Director of National Intelligence.
The committee also heard from National Security Agency Deputy Director John Inglis, U.S. Deputy Attorney General James Cole, and Stephanie Douglas, executive assistant director of the FBI's National Security Branch.
The hearing closely examined two controversial surveillance programs that have been acknowledged by the administration in the wake of press reports. One effort involves the collection of vast amounts of “metadata” related to Americans' phone calls--such as numbers dialed--under Section 215 (12 PVLR 1006, 6/10/13), while the other program, known as PRISM, concerns the monitoring of web users overseas under Section 702 of the Foreign Intelligence Surveillance Act (12 PVLR 1051, 6/17/13).
“Many members of Congress and their constituents have expressed concern about how these programs are operated and whether they pose a threat to Americans' civil liberties and privacy,” Goodlatte said in his opening statement.
He added that Congress must ensure that laws are executed “in a manner that is consistent with congressional intent and that protects both our national security and our civil liberties.” But he stopped short of calling for changes.
In the Senate, Sen. Patrick Leahy (D-Vt.), Judiciary Committee chairman, recently introduced a bill (S. 1215) to rein in the government's surveillance powers (12 PVLR 1153, 7/1/13). The bill's co-sponsors include Sens. Mike Lee (R-Utah) and Richard Blumenthal (D-Conn.), who serve on Leahy's committee.
Conyers has introduced similar legislation (H.R. 2399). Although his bill has more than 30 co-sponsors, including other Judiciary Committee Democrats, no Republicans on the panel have signed on yet.
Meanwhile, Sen. Richard Blumenthal (D-Conn.) told BNA July 15 that he is working to unveil legislation as soon as possible that would force the Foreign Intelligence Surveillance Court to hear from some kind of special privacy rights advocate (see related report).
Kate Martin, director of the Center for National Security Studies, an advocacy group in Washington, told House Judiciary members that the current controversy provides an important opportunity to re-examine the existing surveillance regime.
“[We] are concerned that the unprecedented massive collection of information on Americans, the creation of secret databanks which are available for government analysis, queries, and data-mining by ever increasingly sophisticated computerized tools, and the dissemination of both raw information and the results of such analysis or data-mining throughout the executive branch pose unprecedented threats to First and Fourth Amendment liberties,” Martin said in prepared remarks.
Stewart Baker , a partner in the Washington office of Steptoe & Johnson LLP and a former Department of Homeland Security official under the George W. Bush administration, said in his written testimony that press reports related to the government's surveillance efforts have been “hyped and distorted.”
At the same time, he said that U.S. companies that have assisted the government are “seriously at risk” as a result of growing public outrage, particularly overseas.
“2013 is going to be a bad year for companies that complied with U.S. law,” Baker said. “We need to recognize that our government put them in this position.”
Further information on the hearing, including links to witness testimony and an archived webcast of the hearing, is available at http://judiciary.house.gov/hearings/113th/hear_07172013.html.
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