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Washington—Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) today held a public committee hearing on the House-passed FISA reform bill, the USA FREEDOM Act. Following is her opening statement, as delivered:

“Today we meet to receive testimony and discuss the legislation passed by the House of Representatives on May 22 to reform the Foreign Intelligence Surveillance Act.

That legislation, which is called the USA FREEDOM Act, was approved last month by the two committees of jurisdiction in the House: the House Judiciary Committee and the House Permanent Select Committee on Intelligence.

After amendments on the House floor, the bill was passed by a vote of 303-121, that’s about 3 to 1 and it sends a very loud signal, I think, to this house. It was a very large majority voting for it and votes came from both sides of the aisle.

The bill makes major changes to existing intelligence programs conducted under the Foreign Intelligence Surveillance Act, or what we call FISA.

First, the House bill would end the NSA’s collection of telephone metadata, known as the Section 215 program by reference to the Business Records provision in the USA PATRIOT Act. The program has been approved more than 37 times by the FISA Court and upheld a further three times by other federal courts. I happen to believe it is lawful and that it has been effective, but I recognize that the situation is such that change is needed.

The House bill replaces NSA’s acquisition of call records with a process by which the government can obtain a FISA Court order that would compel telecommunications providers to conduct specific queries of the phone metadata that they possess. The government would be required to show that the information sought is relevant to an authorized investigation and that there is a reasonable articulable suspicion that the phone numbers at issue are associated with a foreign power or an agent of a foreign power.

The government would obtain only those records related to telephone calls of the individual of interest. Unlike NSA’s current practice—again, authorized repeatedly by the FISA Court—this legislation would restrict the queries of phone records to two hops instead of three.

The bill prohibits the government from acquiring, through this authority, the names of people involved, their location, or the content of their communication.

The result of this legislation would be to reduce by a significant extent the amount of information in the possession of the government—the vast majority of which would never be seen by NSA personnel.

Some information of intelligence value will be lost, given that telecommunications companies may not all retain their records for the five years that NSA does, and by limiting query results to two hops rather than three hops. However, the NSA has told this committee that the intelligence value of information obtained from a third hop and from records more than 18 to 24 months old has been relatively limited.

As with other titles of FISA, the House bill would provide liability protection for companies that provide information required under the court’s order. It would also allow the attorney general to authorize an order in case of emergency when there is not sufficient time to go to the FISA Court. The same limitations and protections are in place here as in other parts of FISA.

In addition, the bill prohibits the government from conducting any “bulk collection” under the business records authority in FISA, the pen register/trap and trace authority, and through the use of national security letters.

While prohibiting bulk collection is supported strongly by privacy advocates and private sector companies, the language used in the bill is somewhat controversial.

This controversy revolves around the requirement that the government focus its collection of information on what is called a “specific selection term,” meaning that the government may only seek records or other information that is specifically related to its investigation.

The problem comes with the definition of a “specific selection term,” which is not clear on its face, and I believe it is confusing. A specific selection term in the bill is defined as follows, and I quote: “a discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the Government to limit the scope of the information or tangible things sought pursuant to the statute authorizing the provision of such information or tangible things to the Government.”

I understand that the definition has to provide some amount of flexibility in order to give government investigators the ability to gather information needed for a case—especially in the early days of a case—without already knowing where there is about the subject. I hope that our witnesses today will provide some specific examples, and if you have better alternatives, now would be the time to put them forward.

We might, hypothetically, have an intelligence source that tells us that a terrorist is on a specific plane flying to the United States, but we may not know their name. It seems reasonable to me that the FBI would want to be able to find out who is on the flight manifest, even though all but one or two people would certainly be innocent.

There is also concern that the definition I just read might be so broad so as to allow the FBI to get all flight manifests of an entire airline, for example. And I think we need to look at that.

I know that’s not the intention of the House authors, and I believe the government witnesses today will tell us that they do not believe the bill would authorize them to conduct “driftnet” surveillance or records collection.

But I am interested in trying to find a clearer and more understandable definition and make clear that it prohibits bulk collection of information under these authorities.

Finally, let me note that this committee has been looking at the NSA’s business records collection for years. We passed legislation to reauthorize the provision multiple times and debate the legality of the program as well. Last fall, on October 31, we passed a bill that would institute a number of reforms to the NSA phone metadata program, and to make a number of other improvements to intelligence programs operated under FISA and under Executive Order 12333.

I continue to support that legislation. But in the interest of passing legislation now, soonest we can before we get into an election time, that will continue the business records authority past its sunset date of June 1, 2015, and remove the bulk records storage from the government, which is what the administration supports now, the House supports, and numerous citizens and businesses appear to want, I believe we must take a close look at the House legislation with a view to its passage, perhaps as amended, in the Senate.”

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