Senators Question NSA Surveillance Constitutionality, Metadata Storage Location

"I believe [several court rulings] are correct that it is constitutional,” Holder told Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., of the Patriot Act Section 215 bulk collection of phone metadata. But constitutionality deals with only one half of the question, Holder said, pointing to Obama’s question about whether the government should do activities simply because it’s able to. “That’s what Director Clapper and I are going to be wrestling with over the next 60 to 90 days."

Obama delivered a speech earlier this month on surveillance and proposed several tweaks, expressing a desire that the government should no longer hold the phone metadata the government collects in bulk. In the speech, Obama directed Holder and others to investigate alternatives and report back by March 28. Some presidential advisers have recommended either phone companies or a third party store the metadata. CTIA balked at data retention mandates after Obama’s surveillance speech.

As Holder testified and answered questions before Senate Judiciary, the Senate Intelligence Committee was holding a hearing on global security threats, featuring Clapper and other intelligence officials.

"We've got to get a constitutional ruling on this as quickly as possible,” Sen. Barbara Mikulski, D-Md., told Clapper of the phone surveillance program. She pointed out more than 30 court rulings on the issue, most upholding the program and one notably suggesting such surveillance violated the Fourth Amendment (CD Dec 17 p3). She asked whether Clapper, working with Holder, would ask for an expedited Supreme Court review. “We need to determine the constitutionality. Because if it’s not constitutional, that’s it."

"I'll discuss this with the attorney general,” Clapper said, saying he wasn’t sure of the protocol for seeking a Supreme Court ruling. He told Mikulski he thought there would be a “sense of urgency” for such a ruling among intelligence officials, who have acted with the belief that their activities were legal and performed with significant oversight. “I could not agree with you more on the need for clarity on this for the men and women of the intelligence community,” Clapper said.

Leahy questioned Holder on the program’s constitutionality and thinks “Congress has to act” to make sure “this legal theory” wrapped up in Section 215 and the government’s interpretation of “relevance” does not allow the government “to spy indiscriminately on its citizens,” he said. “I'll continue to push for passage of my USA Freedom Act.” That bill would end bulk collection of metadata.

In Senate Intelligence, some lawmakers hammered on the violence they believe necessitates government surveillance. Chairwoman Dianne Feinstein, D-Calif., mentioned many cases of terrorism at the hearing’s outset. Clapper’s written testimony emphasized cyberthreats to the U.S. (http://1.usa.gov/1gqD7ka). Intelligence member Jay Rockefeller, D-W.Va., also chairman of the Commerce Committee, highlighted the dangers and slammed Obama’s desire to move the phone metadata. Telecom companies have zero desire to hold any metadata, without a mission for privacy protection or counterterrorism, and the metadata may be subject to discovery in civil litigation and subject to other abuses, Rockefeller said. Retailer Target’s data breach highlights the security problem in allowing private companies to hold this information, he said.

"The hard fact is that our national security interests do not change just because public opinion on an issue fluctuates,” Rockefeller said in his opening statement. “The collection and querying of this metadata is not a private sector responsibility. It is fundamentally a government function."

"This is a great concern to all of us,” Clapper said, citing the Target breach and the prospect of private companies’ data security.

"How can we put it in a different place and maintain the integrity of the program?” Holder asked in the Senate Judiciary hearing, saying the NSA has done “a pretty good job” with holding the metadata. “I think we need to find out if we can do that,” Holder said of moving the metadata, during questioning that touched heavily on recent data breaches. The Department of Justice is investigating the Target data breach and “takes very seriously” such reports, Holder confirmed.

The government will seek “timely implementation” of Obama’s surveillance proposals, Holder said. “We will be touching base with” the Privacy and Civil Liberties Oversight Board and others who “have been critical” of the program, he added. “On Monday, we took a significant step forward when the Department took action to allow more detailed disclosures about the number of national security orders and requests issued to communications providers, the number of customer accounts targeted under those orders and requests, and the underlying legal authorities,” Holder testified (http://1.usa.gov/1mXVGtK). “Through these new reporting methods, communications providers will be permitted to disclose more information than ever before to their customers."

But that’s not enough, Sen. Al Franken, D-Minn., told Holder, pointing to his own bill that would force the government to give the public a better idea of how much information has been collected and queried. “It would help gain trust.” The DOJ agreement does not affect the Section 215 requests and disclosure is optional, said Franken, chairman of the Senate Privacy Subcommittee. “It was only a first step,” Holder replied.

The effectiveness of the Section 215 program has been highly debated, and Sen. Angus King, I-Maine, questioned Clapper and FBI Director James Comey on that count. Both defended it. Clapper emphasized that “plots foiled” is a bad metric for assessing the value of phone surveillance. “What it does is it allows us to eliminate the possibility of a terrorist nexus in a domestic context."

It’s a “useful tool” that offers “agility,” allowing the FBI to accomplish a task in minutes that would otherwise take hours, Comey said. “I just want folks to understand what the tradeoff would be in any diminution of that ability.”