Transcript: Hearing Q&A with Rep. Mike Rogers on possible reforms to the NSA surveillance programs – Oct. 29, 2013

Partial transcript of Rep. Mike Rogers (R-Michigan) Q&A with Stephen I. Vladeck, Professor at American University Washington College of Law, Steven G. Bradbury, Partner at Dechert LLP, and Stewart A. Baker, Partner at Steptoe & Johnson LLP, on possible reforms to the NSA’s surveillance programs before the House Intelligence Committee on Oct. 29, 2013:

Rep. Mike Rogers (R-Michigan): Mr. Vladeck, I was confused when you said the 215 database could correlate all of these separate databases. That would be against the law currently.

Stephen I. Vladeck, Professor at American University Washington College of Law: Yeah, Mr. Chairman. All I was trying to say was that if one believes that the government has access to different data streams, to different forms of metadata – and of course, you sir are privy to more of this information than I am – I think the concern is that whereas we – for third-party doctrine purposes under the Fourth Amendment whereas you and I may lose our expectation of privacy in specific data we turn over to specific third-party. I think there’s a difference between the individual third-party’s ability to look through our data.

Rep. Mike Rogers (R-Michigan): Okay, I understand. So what we’re saying then is if I’m understanding you correctly is we understand the parameters of 215 as it exists today, which has – you cannot put that data against other data streams. You have to do it under – it has to be a counter-terrorism case. It’s only a metadata stream with one hop, not two hops. Excuse me, two hops. Two hops. That is completely different from your description, and I get a little worried that we’re saying “Well, you could be doing” – well, that’s great but that’s not what they’re doing. [Overlapping audio] Help me understand why you think going the other way protects it more than the type of parameters that are on it, that are overseen not just by the court, not just by the NSA, not just by the Department of Justice, but also the United States Congress?

Stephen I. Vladeck, Professor at American University Washington College of Law: I think we’re talking about two different things, Mr. Chairman. I think what you’re talking about, which is entirely correct, is when the government is specifically querying the data it’s collecting and certainly your description of what’s available under 215 is exactly right. What I’m raising is the specter that the data is being collected not necessarily in ways that can be queried but is being collected in ways that are crossing the lines between individual third-parties. Right? That the government is collecting data from multiple vendors and that whether there are sufficient constraints on their ability to query that data or not. If one believes that the expectation of privacy arises from the collection of the data and not merely the querying of the data, then the collection by the government is not just from a specific third-party but from an aggregation of third-parties and that to me is what might change the analysis.

Rep. Mike Rogers (R-Michigan): I see. So you’re arguing that if they went to each one with a legal warrant, which if they do that or not we should leave that to another discussion, but if they – let’s say as a divorce lawyer would do – they’d hit all the companies, right? Because I’m a Verizon customer calling an AT&T customer who calls a Sprint customer. You’re arguing that the legal problem comes when they aggregate that data even though they can legally get all that data separately.

Stephen I. Vladeck, Professor at American University Washington College of Law: No, again, I think the difference there is that there the government is using specific individualized information to obtain that data, right? And so there’s no – we’ve already had decades of case laws suggesting that we have no expectation of privacy when the government is obtaining records on that individualized basis.

Rep. Mike Rogers (R-Michigan): So how would you get to the point that if you do it the way where I think your understanding that I have to have an individual inquiry, which is impossible – that would make the program go away. Do you think that the program should go away?

Stephen I. Vladeck, Professor at American University Washington College of Law: So, I – Mr. Chairman, I elaborated upon this in my statement. I’m actually ambivalent, and I’m ambivalent for two reasons that may seem inconsistent. The first is we the public are not privy to I think all the information that would help us assess whether there are less restrictive alternatives available that would achieve the same cash-out. Right? And I think in that regard we do have to defer to the members of Congress who are privy to that classified information.

Rep. Mike Rogers (R-Michigan): If I understand right, you wouldn’t be opposed if you believe that we could come to some consensus on how to protect privacy under some configuration where they could query – take a selector and query a database and come back with information and then – by the way contains no names or addresses –

Stephen I. Vladeck, Professor at American University Washington College of Law: And Mr. Chairman, if that’s the standard that Congress has codified and that’s the standard that the courts subsequent hold is all the Fourth Amendment requires, then no, I think the program is perfectly fine. I think where there’s room for disagreement, Mr. Chairman, is whether that’s in fact consistent with what Congress wrote when it wrote Section 215 and whether it’s consistent with the Fourth Amendment as the Supreme Court may choose to understand it…That’s where I think the basis for disagreement exists.

Rep. Mike Rogers (R-Michigan): So this doesn’t seem as huge as – maybe I mistook your comments – it seems we’re more – we’ve narrowed the gap of our differences maybe.

Stephen I. Vladeck, Professor at American University Washington College of Law: I think – I didn’t mean to suggest it was a chasm. In all candor, all I was trying to suggest was I do think Congressman Schiff’s point about the retention being on a private server versus a government server is more than just a descriptive distinction, that it may conceivably be a legal and significant one.

Rep. Mike Rogers (R-Michigan): In order for it to work, we’d have to mandate that all of those companies under that scenario would have to aggregate that information, which they do not do and candidly it’s a trust issue right now to aggregate that data right? In order for this to work, you’d have to have – you’ve got to have the haystack to find the needle. What you’d have to do is mandate that they all aggregate their data.

Stephen I. Vladeck, Professor at American University Washington College of Law: So I guess I’m not sure I follow because I had thought that the premise of the question…or the premise of the proposal was that the data would be retained by these companies on their own servers and that if and when the government had a need to query, it would be at that point that the government would be entitled to collect the data from each of these disparate companies and at that point it would be the individualized suspicion that would allow the government to conduct the aggregation.

Rep. Mike Rogers (R-Michigan): …You do want an individualized suspicion. You want us to go with 555-1212 that I collected in fill-in-the-blank and I want to go to each company and say, “Tell me about this particular number.” Is that what you’re saying?

Stephen I. Vladeck, Professor at American University Washington College of Law: I think – all I was trying to suggest was if that’s the proposal Congress wants to follow, the idea is to have the data retained by the – I mean, by my understanding that’s already the standard, that if the government is possession of this data on its own servers, it can’t query it before it has RAS [reasonable, articulable suspicion] on a specific individual or number or a specific person. And so I think it wouldn’t be – the only difference would be who’s storing the data from which you are building the database. All I was doing was responding to Congressman Schiff’s suggestion…

Rep. Mike Rogers (R-Michigan): …I think what the gap here is what your intention is and what the technical capability is are two different places. I think that’s where the gap is and we can work through that…

Rep. Mike Rogers (R-Michigan): Mr. Baker, I just want to follow-up on a point. What we see happening in Europe is a bit concerning to me in the sense that as you described the feigned outrage and an effort on protectionism on products, especially in things like cloud computing and other things. Can you expound on that? I think this is critically important as we move forward here to understand that this may not be about someone wounded of their honor in the sense that there may be espionage going on, which is after all a French word, in the world. Can you help me understand that?

Stewart A. Baker, Partner at Steptoe & Johnson LLP: …For many governments, they see that the President is deeply embarrassed by this and is eager to make amends and offer something to people. That’s a sign of weakness to many of them, and they are looking to see what they can get. What they would love to have and what they are trying to get in a variety of ways using political pressure in Europe as well as concessions by the United States is to get more data stored in, say, France. Because if the data is stored in France, as Yahoo has, then the French government has access to it just by walking up and saying, “S’il vous plait [please].” And Yahoo can’t tell anyone – I don’t know what French for gag is – they can’t tell anyone that they’ve done that. The information is also not available to the United States. They’d have to go ask the French, “Pretty please, can you give us the information”, which increases their authority and their leverage over the United States. And finally, there are more jobs for Frenchmen and fewer jobs for Americans in maintaining those databases, so from their point of view, this is a win-win-win. And you see many indications that the European Union and various officials are trying to structure this so that they can be in a position to benefit from this. The President is offering things to these governments. He’s saying, “No, we are not going to do certain kinds of intercepts for the future.” It’s absolutely critical. There’s no more brutally reciprocal business than the intelligence business. It is “What are you doing for me?” and “I will do something for you.” He’s offering them something he has got to ask for something in return. He’s got to ask for assurances that they’re not spying on Americans or that they’re not stealing American commercial secrets and that they are not pressuring U.S. companies to move their data to France. If he doesn’t ask for those things, then he is unilaterally providing comfort to them as they continue to do all of those things and the net result will be less privacy for Americans.

Rep. Mike Rogers (R-Michigan): …Do you think that the government should have the ability to try to find a nexus between a foreign connection and a business record in the United States that will indicate the identity of someone who may working with a terrorist organization by query into a phone bank? Is that something the government should be able to do to protect its national interests?

Steven G. Bradbury, Partner at Dechert LLP: Absolutely, I believe so.

Rep. Mike Rogers (R-Michigan): Mr. Baker?

Stewart A. Baker, Partner at Steptoe & Johnson LLP: I agree.

Rep. Mike Rogers (R-Michigan): Mr. Vladeck?

Stephen I. Vladeck, Professor at American University Washington College of Law: Unless there’s an easier way to do it, as long as there are enough protections, sure.

Rep. Mike Rogers (R-Michigan): …So you do believe that it’s something we should be doing, you may have some disagreements on how we do it?

Stephen I. Vladeck, Professor at American University Washington College of Law: …Mr. Chairman, I think there’s an analogy that I don’t mean as more than a superficial analogy to how many people feel about the death penalty. Right? There are many people who are not anti-death penalty in principle but who can’t fathom, can’t abide it in a form where there’s so many concerns about the manner in which it’s implemented…[Overlapping audio] The process points – it’s impossible to separate if the substantive validity of the program from the process concerns have been raised by plenty of members of Congress, members of the public. And so until we have some better sense and some better grasp of those process concerns, I think it’s a bit unfair to have to enter the substantive question in the abstract.

Rep. Mike Rogers (R-Michigan): Oh, but it’s not abstract. Do you think we should have the ability to do it or not? I didn’t say how to do it. I just said should we have the ability to do it?

Stephen I. Vladeck, Professor at American University Washington College of Law: But I think the way we do it matters.

Rep. Mike Rogers (R-Michigan): Well, clearly it matters, and being effective matters too, would you not agree with that?

Stephen I. Vladeck, Professor at American University Washington College of Law: 100%. That’s the whole point of process.

Rep. Mike Rogers (R-Michigan): We could make up 5 things that we want to apply to the program, but if it doesn’t work, it doesn’t work.

Stephen I. Vladeck, Professor at American University Washington College of Law: I agree.

Rep. Mike Rogers (R-Michigan): And I would argue that maybe the fact that we haven’t had any complaints come forward with any specificity arguing that their privacy has been violated clearly indicates in 10 years, clearly indicates something must be doing right, somebody must be doing something exactly right.

Stephen I. Vladeck, Professor at American University Washington College of Law: But who would be complaining?

Rep. Mike Rogers (R-Michigan): Somebody’s who’s privacy was violated? You can’t have your privacy violated if you don’t know your privacy is violated, right?

Stephen I. Vladeck, Professor at American University Washington College of Law: I disagree with that. I think that if a tree falls in the forest, it makes noise whether you’re there to see it or not.

Rep. Mike Rogers (R-Michigan): That’s an interesting standard in the law…As you all know, we’re trying to get this right. We want a robust debate. We want to have transparency and oversight, civil liberties protection, that still maintains the ability for us to protect ourselves. We saw what happened prior to 9/11 when we walked away from those principles and we paid a heavy price for it. We’re going to hope that we do this right. As Churchill said he loves America because they always do the right thing after trying everything else. We may be in that process of trying everything else. Thank you all very much.

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