Fix Section 215 Surveillance or Else, House Judiciary Lawmakers Tell Deputy Attorney General
If the branches of government don’t resolve phone surveillance concerns about Patriot Act Section 215, the section may expire without renewal, House Judiciary Committee members told a Justice Department official at a hearing Tuesday. The committee questioned Deputy Attorney General James Cole and representatives from the Privacy and Civil Liberties Oversight Board and an independent surveillance review group appointed by President Barack Obama last year.
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House Judiciary, which has argued it has primary jurisdiction over the Foreign Intelligence Surveillance Act, is considering multiple surveillance overhaul bills, including the bicameral USA Freedom Act, which would end the government’s bulk collection of phone metadata. Last month, Obama said the government should not hold the metadata and asked his officials to investigate alternative methods of storing the metadata, such as by the providers or a third party.
"The House Judiciary Committee must act,” said ranking member John Conyers, D-Mich., saying the administration can’t act alone. “Section 215 is scheduled to sunset on June 1, 2015. If it expires, all Section 215 programs -- not merely bulk collection -- expire with it. We should address bulk collection today, or we risk losing all of Section 215 this time next year.”
Conyers is one of the original backers of the USA Freedom Act, and he said more than half of House Judiciary members now support the bill. Chairman Bob Goodlatte, R-Va., has not supported or opposed the bill but has strongly questioned the Section 215 program and whether any value has been demonstrated. He questioned Cole strongly on whether Section 215 surveillance is effective and how a path may be forged going forward, with Conyers and others “champing at the bit” to end bulk collection, Goodlatte said.
"Unless Section 215 ends up getting fixed,” Judiciary Crime Subcommittee Chairman Jim Sensenbrenner, R-Wis. -- primary House author of the USA Freedom Act -- told Cole, “you will end up getting nothing.” There won’t be enough votes to reauthorize the section in 2015, Sensenbrenner said. He called the FISA bill introduced by Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif. -- legislation widely seen as codifying bulk collection practices -- “a joke” that “we're smart enough to recognize” for what it is. “The clock, sir, is ticking and it’s ticking rapidly and it’s going to have to be addressed in this year, even though it’s an election year,” Sensenbrenner said. He asked for a yes or no answer on whether the Justice Department would support the USA Freedom Act.
"The Department of Justice is a big place,” Cole said.
"I would ask you to get the big place together,” Sensenbrenner retorted. “There’s nothing else out there to fix this up [than the USA Freedom Act]. … Come June 1, [2015,] there will be no authority for anything under 215. … It’s past time for genuine reform, and I can tell you, sir, if the administration doesn’t want to weigh in on this, I'm sure Congress will do so.”
"The providers already keep these records for a certain period of time, and some keep it for longer than what’s required under regulations,” Cole said. Government officials are trying to “think outside the box,” Cole added. Providers are “required to hold it for about 18 months” under FCC rules, with some holding it longer than required, Cole said, saying a law may be necessary if the government decides it needs longer storage by providers: “I don’t think they really favor that option.” Cole also sees “significant limitations” in shifting metadata to a third party. The government is examining “what the right amount of time is” to hold metadata, Cole said. The government holds metadata for five years now and intelligence officials have called for a minimum of three years.
Bulk metadata collection is “a tip or a lead” in law enforcement investigations, Cole said, defending the metadata’s role. It gets the process started, he said. Many members of Congress, including Goodlatte, have questioned its effectiveness, as have the sets of recommendations from Obama’s review group and PCLOB. In response to questioning, Cole said the government does not, in collecting metadata in bulk, screen out any phone numbers, including those of members of Congress.
"The third-party storage is really an idea that’s still in progress,” Goodlatte said, asking that if it’s not found viable, what’s the administration’s thought -- continue bulk collection or end it? “I don’t want to try to get too far ahead of” the process, Cole said.
Reps. Zoe Lofgren, D-Calif., Jerrold Nadler, D-N.Y., and David Cicilline, D-R.I., back Sensenbrenner’s comments, they said. Letting Section 215 expire “might be the best solution, frankly, from my point of view,” Nadler said. Lofgren asked Cole if the government can collect other items, such as credit card numbers, in bulk under the authority. He didn’t directly answer, causing Lofgren to dismiss Cole and turn to another witness. “You're clearly not going to address this issue,” Lofgren told Cole. “You're trying to use up my time.”