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The Privacy Advisor | US Senate hears arguments on whether to reauthorize surveillance provisions Related reading: Court rules FBI surveillance activities violated FISA, Fourth Amendment

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Editor's Note:

An earlier version of this story stated that PCLOB Chairman Adam Klein urged Congress to reauthorize the government’s “roving wiretap, business records, lone wolf and call detail records” provisions. In fact, Klein said the NSA’s cancellation of the call detail records provision was “the right choice” and whether to keep the program around in the future will require further inquiry into the program’s efficacy given a number of mitigating factors. 

At a U.S. Senate Committee on the Judiciary hearing Wednesday, lawmakers asked members of the intelligence community, academics and the chairman of the Privacy and Civil Liberties Oversight Board whether it should reauthorize provisions of the Foreign Intelligence Surveillance Act in the name of thwarting terrorism. Without Congressional re-approval, the surveillance powers discussed will expire at the end of this year.

Briefly: The "roving wiretap, business records and lone wolf provisions" were added under FISA in 2004, while the "call detail records" provision was added just four years ago under the Freedom Act to replace the National Security Agency's bulk telephone data-collection program, which was highly criticized by privacy and civil liberties advocates.

The roving wiretap allows the government to keep surveilling a national security target when they take steps to avoid surveillance. The “lone wolf” provision allows the government to surveil a foreigner who is "engaged in international terrorism or international proliferation of weapons of mass destruction, but who lacks traditional connections to a terrorist group or other foreign power." The business records authority allows the government to collect records and papers relevant to a national security investigation. 

In general, at the "Reauthorizing the USA Freedom Act of 2015" hearing, government agencies urged Congress to reauthorize, permanently, each of the crime-fighting tools "based not only on the government’s demonstrated record and the importance of the authorities to national security, but also on the significant reforms contained in the Freedom Act. These include authorizing the [Foreign Intelligence Surveillance Court] to appoint amici curiae to address privacy and civil liberties concerns and enhance public transparency and reporting requirements under FISA.

"Four years ago, the Freedom Act was passed after extensive oversight and comprehensive hearings and received strong bipartisan support in the Senate. In the wake of repeated reviews and bipartisan authorizations over nearly two decades, the administration’s view is that the time has come for Congress to extend these authorities permanently," the agencies wrote in their written testimony.

Brad Wiegmann, deputy assistant attorney general at the Department of Justice's National Security Division, said the data it's using "are things you can get with a subpoena. I really don't think ordinary uses of these authorities should be controversial or should raise privacy or civil liberties concerns." 

But Sen. Mike Lee, R-Utah, shared concerns that "on a whim as long as you check a few boxes," the government could obtain someone's medical records, including mental health records. Or records of their searches on Google. Or conversations overheard by Amazon's Alexa.  

Adam Klein, chairman of PCLOB, testified in support of improvements made to the NSA's surveillance programs. PCLOB reviewed the programs in 2014 at the request of President Barack Obama. Its concerns — mainly about the bulk collection of telephone data under Section 702 of the FISA Amendments Act and privacy infringements that may incite against ordinary and innocent Americans — were addressed and repaired in 2015's Freedom Act, Klein testified, agreeing with the administration.

Klein testified that the board's most recent review, ahead of this year's reauthorization deadline, "found no malfeasance or abuse of this authority. Nor did it find any instance in which government officials intentionally sought records that were prohibited under the statute."

Specifically speaking to earlier concerns about metadata swept up in FISA's Section 702 data collection, Klein testified, "The board found no evidence that NSA received any of the statutorily prohibited categories of information: No subscriber names or addresses, no financial information, no cell-site location information, no GPS coordinates."

Jamil Jaffer, a professor at George Mason University's Antonin Scalia Law School, agreed with Klein. 

"We put terrorists on the run for the past 20 years by fighting them overseas," he said. "ISIS remains strong. ... We know ISIS's leader is gone today, and yet they remain committed to attacking us here at home," he offered as reasons to permanently reauthorize the surveillance programs. 

But the controversy at the hearing centered around the "call detail records program," which allows intelligence agencies to collect "telephony metadata but not the content of any communications," according to the agencies' testimony. Lawmakers questioned the NSA's Susan Morgan, who testified that the agency itself suspended the program because of its inefficacy. 

So why would the government reauthorize something that the agency itself has found to be ineffective? Lawmakers posed that question again and again to government agencies at the witness table.

But the NSA's Morgan, specifically, reasoned that the agency can't predict what the terrorism landscape nor the telecommunications industry is going to look like in the future, and for that reason it's worth keeping the authorization. 

But lawmakers weren't satisfied with Morgan's answers and repeatedly asked her to cite specific examples in which the CDR program itself had helped to thwart terrorism in any way. Morgan said she didn't feel comfortable offering examples or even the number of times CDR had assisted in a case, which infuriated lawmakers, including Sens. Dianne Feinstein, D-Calif., and Patrick Leahy, D-Vt. Leahy said there's no reason to reauthorize a program they've got no insight into: "We'd be legislating in the dark." 

But Jaffer disagreed, saying "the right approach to this problem is to at least make it available for use. It would be a mistake to take a tool off the table at a time when terrorist threat remains high." 

But there was one sole witness at the hearing who testified the rosy picture the administration and other witnesses had painted about the efficacy and earnestness of the government's surveillance policies were not accurate. 

Elizabeth Goitein, director of the Liberty and National Security Program at New York University's School of Law, testified that significant reforms are needed. 

"Unfortunately, events over the past four years have made clear that the USA Freedom Act is not fully serving its intended purposes," she wrote in her testimony. "The government has failed to comply with some of the law’s provisions and has interpreted others narrowly to lessen their impact. While the NSA ended its previous bulk collection program, official statistics strongly suggest that the government is continuing to collect massive amounts of personal information about Americans who are not the targets of any authorized investigation."

At the hearing, Goitein said the "new phone records program is a failure. ... It is clearly time for Congress to pull the plug on this noncompliant and ineffective program," adding "agents have been running queries on up to 70,000 subjects at the time. Mr. Klein and Mr. Jaffer are not correct that there are no PCLOB concerns. Congress should end the call detail program and enact strong minimization requirements." 

In the end, Feinstein, for one, wasn't swayed by Goitein's remarks. 

"I believe it is our responsibility to protect us. ... There are a lot of problems out there, and the question I have is how do I keep them from affecting the country. So I am not for canceling out any program that exists ... How we run it better? Yes. How we run it more efficiently? Fine," Feinstein stated. 

To watch the hearing in full, find the video archive here

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