BILL ANALYSIS �
AJR 26
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Date of Hearing: August 27, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AJR 26 (Allen) - As Introduced: June 13, 2013
SUBJECT : FEDERAL SURVEILLANCE PROGRAMS
KEY ISSUES :
1)WHAT IS ACTUALLY GOING ON IN FEDERAL SURVEILLANCE PROGRAMS
TODAY?
2)SHOULD THE LEGISLATURE ADOPT A RESOLUTION, BASED ON INCOMPLETE
AND PERHAPS NOT FULLY ACCURATE MEDIA COVERAGE OF FEDERAL
GOVERNMENT SURVEILLANCE PROGRAMS, URGING CONGRESS AND THE
PRESIDENT TO MAKE PROTECTION OF CIVIL LIBERTIES AND NATIONAL
SECURITY "EQUAL PRIORITIES"?
3)GIVEN THE PAUCITY OF VERIFIABLE INFORMATION OF WHAT IS
ACTUALLY GOING ON IN FEDERAL SURVEILLANCE PROGRAMS TODAY,
MIGHT IT BE MOST PRUDENT FOR THE LEGISLATURE -- SHOULD IT
CHOOSE IN THE FUTURE TO WEIGH IN ON THE CONSTITUTIONALITY OF
FEDERAL GOVERNMENT SURVEILLANCE ACTIVITIES -- TO WAIT UNTIL
THERE IS A MUCH MORE COMPLETE AND ACCURATE UNDERSTANDING OF
THESE ACTIVITIES, AND THE POTENTIALLY VERY TROUBLING QUESTIONS
RAISED BY THEM, BEYOND RELYING ON SOMETIMES CONFLICTING MEDIA
ACCOUNTS WHICH MAY OR MAY NOT BE FULLY ACCURATE?
FISCAL EFFECT : As currently in print this measure is keyed
non-fiscal.
SYNOPSIS
This well-intentioned measure is one of two resolutions before
this Committee today seeking to put the Legislature on record
about federal National Security Administration (NSA)
surveillance programs. This particular measure urges Congress
and the President to make the protection of civil liberties and
national security precisely equal priorities, to comply with the
Fourth Amendment, and to instruct our national security agencies
to ensure that national security be achieved without "invasive"
violations of civil liberties. It was introduced one week after
media reports on federal surveillance programs run by the NSA
first surfaced. These programs apparently have collected
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various telephonic and Internet data since their creation in the
administration of George W. Bush. This surveillance is
reportedly aimed at foreign targets, though information
regarding Americans also appears to be gathered in the process,
but the full extent of these programs remains unclear.
This Committee has long noted that protecting privacy and other
constitutionally protected rights, as well as national security,
are vital priorities of the federal government. However, this
resolution would appear to be premature. Most of the
information about the surveillance programs, which the federal
government began conducting in the wake of the September 11th
attacks and which are at issue in this resolution, is still
classified and not available to the Legislature. While there
clearly are a lot of potentially highly troubling questions
about the surveillance programs that the federal government
began conducting in the wake of the September 11th attacks
during the Bush presidency, and there may well be very
legitimate continuing civil liberties concerns in light of these
programs, a great deal remains unknown and unverified about
these programs, their implications for constitutional rights,
and whether any actual harms to individuals have resulted. This
measure has not been revised since it was introduced and thus
appears to contain incomplete and possibly inaccurate
information. Moreover, its specific recommendations appear to
intrude into a delicate balance between two critical national
priorities without full knowledge of the facts and full
consideration of the relevant issues. In such an important and
delicate area of the law, balancing constitutional rights with
national security, this Committee may providently conclude that
rather than weigh in hastily on a resolution which reflects
inadequate information and understanding of these complex
factual and legal issues, it may be premature to pass this
measure until a much fuller and verifiable understanding is
gained by the Committee about the actual facts surrounding the
surveillance programs and the many troubling questions raised by
them.
SUMMARY : Urges Congress and the President of the United States
to make the protection of civil liberties and national security
equal priorities, to immediately discontinue any practices
contrary to the Fourth Amendment, and to instruct national
security agencies to ensure that national security is achieved
without invasive violations of civil liberties. Specifically,
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this measure makes the following findings, among others:
1)States that the U.S. was founded on the principles of
protecting individual liberties and inalienable rights of
people from infringement by oppressive government.
2)States that public safety, national security, and the
protection of civil liberties are of the utmost importance and
highest priority of government.
3)States that civil liberties and personal privacy must remain
secure and protected, and should not be abridged to pursue
politically or bureaucratically desired initiatives without
oversight and public knowledge.
4)States that in recent weeks, there have been news reports
regarding an ever-pervasive and ever-expansive government
intrusion into the lives of innocent Americans.
5)States that the National Security Administration has allegedly
been operating a clandestine surveillance program that mined
user data transmitted through the servers of nine major
Internet entities for over a decade.
6)States that a mass collection and storage of the Internet,
email, and telephone records of innocent American citizens, as
alleged, is contrary to the Fourth Amendment and a violation
of the civil rights of all Americans.
7)States that potential justification for mass data collection
as increasing national security and thwarting terrorists
should not take precedence over the United States Constitution
and the protection of the civil liberties of American
citizens.
8)States that it is of the utmost importance that governance be
done transparently with the highest emphasis on integrity and
the appropriate establishment of checks and balances.
EXISTING LAW :
1)Provides, "The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or
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affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." (U.S.
Const., 4th Amend. See also Cal. Const. Art. I, Section 13
(nearly identical to 4th Amendment).)
2)Holds that "searches conducted outside the judicial process,
without prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment - subject only to a
few specifically established and well-delineated exceptions."
(Katz v. U.S. (1967) 389 U.S. 347, 357. See also Fed. Rules
Crim.Proc., Rule 41, 18 U.S.C.)
3)Holds that evidence obtained in violation of the Fourth
Amendment is inadmissible in both state and federal criminal
proceedings. (Mapp v. Ohio (1961) 367 U.S. 643.)
4)Provides, in the California Constitution, "All people . . .
have inalienable rights. Among these are . . . pursuing and
obtaining safety, happiness, and privacy." (Cal. Const. Art.
I, Section 1.)
5)Holds that the California constitutional right to privacy
defends against intrusions both by governmental and
nongovernmental actors. (Hill v. National Collegiate Athletic
Assn. (1994) 7 Cal.4th 1, 16.)
COMMENTS : This resolution urges Congress and the President to
make the protection of civil liberties and national security
equal priorities, to immediately discontinue any practices
contrary to the Fourth Amendment, and to instruct national
security agencies to ensure that national security is achieved
without invasive violations of civil liberties. In support of
the measure, the author writes:
Recently there have been reports that the National Security
Agency (NSA) has been collecting and storing Internet,
phone and financial data of American citizens in an alleged
attempt to stop terrorist activities. This revelation that
the NSA has been collecting these records from unaware,
innocent American citizens has raised questions amongst the
public about the constitutionality of the government's
actions.
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The Federal Government And The State Of California Already Are
Required to Strike A Careful and Difficult Balance Protecting
Constitutional Rights And Promoting Public Safety : The
California Constitution affirms the importance of civil
liberties, both with its protection against unreasonable
searches and seizures (Cal. Const. Art. I, Section 13) and its
specific guarantee of the inalienable right to privacy (Cal.
Const. Art. I, Section 1). The federal government recognizes
the former right in the Fourth Amendment and the latter right in
a variety of Supreme Court decisions. (See, e.g., Griswold v.
Connecticut (1965) 381 U.S. 479; Roe v. Wade (1973) 410 U.S.
113; Lawrence v. Texas (2003) 539 U.S. 558.) The United States
has a long history of protecting civil liberties, and California
has of course been at the forefront of this fight. These
constitutional rights are the cornerstone of our democracy.
At the same time, however, it is important to note that Congress
has the power to "provide for the common defense and general
welfare of the United States" (U.S. Const. Art. I, Section 8),
and the President's Oath of Office includes a pledge to "protect
and defend the Constitution of the United States" (U.S. Const.
Art. II, Section 1). Keeping the country safe and secure is
also an extremely important responsibility of both Congress and
the President. Both those institutions repeatedly note that
protecting the nation's security is among their top priorities.
The Relationship Between Civil Liberties And National Security
Has Long Been The Subject Of Delicate Balancing, And That
Balancing Act Has Been Made Even More Complex With Newer
Electronic Means For Both Communication And Surveillance :
Surveillance by the National Security Agency (NSA) has been in
the public discourse since even before the September 11, 2001
terrorist attacks. In 1978, Congress enacted the Foreign
Intelligence Surveillance Act (FISA), which regulated the
surveillance of foreign targets and created the Foreign
Intelligence Surveillance Court (FISC). The FISC is a
specialized court designed to review, and when appropriate,
approve court orders for foreign surveillance. FISA has been
amended several times since September 11, 2001, including by the
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Patriot Act of 2001, which was spearheaded by President Bush and
enacted just six weeks after the September 11th attacks. FISA
allows the surveillance of "agents of foreign powers," and,
among other things, the Patriot Act extended the definition to
include terrorists not working for any specific foreign
government.
A New York Times article in December, 2005, revealed that
President Bush had signed a presidential order in 2002
permitting the NSA to monitor, without a warrant, international
phone calls and emails from the United States. This
surveillance led to many lawsuits, including Hepting v. AT&T
(N.D.Cal. 2006), which sought to prevent AT&T from cooperating
with domestic surveillance by the NSA. That case was dismissed
as a result of the FISA Amendments Act (FAA) of 2008, which
granted immunity to any person who provided assistance to the
intelligence community. (See In re National Sec. Agency
Telecommunications Records Litigation (9th Cir. 2011) 671 F.3d
881, 894 cert. denied (2012) 133 S.Ct. 421; other cases, such as
Jewel v. National Security Agency (N.D.Cal. 2008), are ongoing.)
In addition to the grant of immunity, the FAA made a number of
other changes to government surveillance requirements. It
overhauled FISA monitoring, including requiring the FISC to
review and approve annual surveillance plans. Because the
FISC's opinions generally are classified, much remains
completely unknown, but the FISC has sometimes reportedly
required the NSA to revise its approach to certain programs.
The FISC's involvement brings judicial oversight to surveillance
that was previously conducted and monitored solely by the
federal executive branch, and while getting approval from the
FISC likely does not involve the same level of scrutiny as
obtaining a warrant in an ordinary court, the FISC's
participation does purportedly provide some judicial oversight
over surveillance programs and the NSA.
New Questions About Federal Surveillance Programs Have Again
Been Raised By The Latest Media Reports On The Reach Of NSA
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Surveillance: This past June, information about federal
surveillance programs was leaked to news organizations by Edward
Snowden, a former CIA employee and former NSA contractor, who
has now been granted temporary asylum in Russia. First revealed
was a court order requesting all metadata from Verizon's phone
records. Much about the context of this order is not known, but
varying news reports suggest that such orders have been given
regularly since about 2007. Based on publicly available
information, it appears - but we do not yet know for sure since
the reports about this issue are changing daily -- that the
federal government does not receive recordings of phone calls or
listen in on calls under this program. As of now, reports
suggest that the NSA currently simply receives information
regarding phone numbers dialed, call duration, and other such
metadata. But of course, this is a developing national event
and it is not yet known with any confidence what exactly is
going on in federal surveillance programs.
Second, the Prism program was disclosed to the public. Prism
began around 2007 under the Bush administration. It involves
retrieving data from leading technology and communications
companies, such as Facebook, Google, and Microsoft. Varying
news reports suggest that these may not be open-ended sweeps
from direct access to company servers; reportedly, the
government issues directives that name specific users or groups
whose information is sought. However, some recent media reports
dispute this characterization, while others do not. The program
is alleged to target foreign suspects, although information
regarding Americans may be included in the data accessed,
especially if the Americans were in contact with foreign
suspects. Again however, none of this information is verifiable
due to its classified nature to protect the national security.
Additional Media Reports On Government Surveillance Programs,
Based Apparently On Ongoing Revelations From Edward Snowden,
Continue To Dribble Out : More recently, the media have reported
on a variety of additional programs that purportedly collect
data or allow analysts to search collected data on Americans.
One such reported program is XKeyscore, which has been alleged
to cover "nearly everything a typical user does on the
internet," according to a presentation cited by the Guardian
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newspaper. However, it is purported to store data for only
three days and metadata for only 30 days, and it allows only
queries that target individuals who are probably foreign, based
on information that the system has. Additionally, according to
some news accounts, XKeyscore may not itself collect data; it is
supposedly merely a query tool. It is, again clear however,
that only one thing is clear about this program -- that there is
still much that is unknown about the underlying collection
systems.
Federal Assurances That The Nation's Surveillance Programs Are
In Fact Saving American Lives : In response to reports on the
surveillance programs, and massive media coverage raising
concerns about their scope, various government officials have
stated that these surveillance programs have helped to foil
numerous specific terror plots and catch dozens of terrorists.
In addition, they note that Congress has been briefed regularly,
and a federal court has approved the surveillance requests, as
required. Thus, they argue that all three branches of the
federal government have had some role in overseeing programs
critical to protect national security and have helped to ensure
their constitutional legitimacy.
However, most recently some reports have reportedly surfaced on
a number of errors made by the federal government when seeking
information through these programs. According to the Washington
Post, an NSA audit from May 2012 purportedly counted 2,776
incidents of unauthorized collection in the preceding 12 months,
most of which were allegedly unintended, and one in ten of which
were due to typographical errors in analyst queries.
Reportedly, too, about two-thirds of these incidents occurred in
relation to foreign calls, not domestic calls. Only a few
serious violations have been publicly disclosed however.
President Obama's Recent Announcement About Federal Reforms in
This Area : This month, on August 9, 2013, in response to
ongoing press reports and controversies, President Obama
announced that he would pursue reforms of these programs.
Conceding, "It's not enough for me, as president, to have
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confidence in these programs; the American people need to have
confidence in them as well," the President announced several
steps that his Administration would take to improve the
programs, increase their transparency, and ensure their
constitutionality. These steps include: working with Congress
to pursue appropriate reforms to the section of the Patriot Act
that authorizes the NSA program that collects telephone records;
pursuing reforms that improve the public's confidence in the
oversight conducted by the FISC; providing the public as much
information about surveillance programs as possible; and forming
a high level group of outside experts to review the entire
intelligence and communications technologies. The NSA also has
recently released new information on its practices and may
continue to release more. Thus, the federal government is
currently taking steps to make its surveillance programs more
transparent and accountable.
It is obviously not yet known to what extent these new reforms
in federal surveillance programs might undermine the need for
the California Legislature to weigh in on any particular
legislation in this area proposed in Congress.
As the Result of Incomplete Information on NSA Surveillance
Programs, This Well-Intentioned Resolution Appears to Contain
Possible Inaccuracies and Confusing Directives, Potentially
Inserting the Legislature into an Area That is Not Yet
Sufficiently Understood: While all three branches of the
federal government are involved in the federal surveillance
programs and possess substantial information about their nature
and scope, state elected officials do not have access to
classified information about these programs. As a result,
information about these programs that is contained in this
measure comes, it appears, from media reports. This resolution
was introduced on June 13, 2013, just one week after the first
media reports were printed; and it has not been amended since.
Thus, it appears that this measure, as drafted, is based on news
reports of uncertain accuracy and questionable completeness.
For example, the resolution states that the NSA "has allegedly
been operating a clandestine surveillance program that mined
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user data transmitted through the servers of nine major Internet
entities for over a decade." The original Guardian newspaper
article on June 6 claimed, "The National Security Agency has
obtained direct access to the systems of Google, Facebook, Apple
and other US internet giants," which appears to have been
significantly overstated or perhaps even false; apparently the
NSA issues directives requesting information from these
companies, to which the companies respond, but the NSA does not
appear to have direct access to these companies' servers.
Similarly, Wired UK stated on June 10 that as a result of the
Prism program: "In essence, everything that you do online can be
accessed, tracked and recorded by the US government," which may
not be accurate; the NSA appears only to request information
regarding certain individuals, not the entire Internet, although
publically available information is contradictory. Quite a lot
of potentially unreliable or even possibly inaccurate
information was being reported at the time that this measure was
introduced, and even now, conflicting reports make it very
difficult to get a complete, accurate and verifiable
understanding of the NSA surveillance programs. Thus, the
wording of this measure appears to reflect inadequate
understanding of the nature of the programs that the measure
criticizes.
Because of the lack of accurate information available on the NSA
surveillance programs, this resolution strikes an unusual
balance between generality and specificity, and the result does
not appear to advance the important debate on how the federal
government should protect both constitutional rights and
national security. In particular, the measure has the
Legislature urging Congress and the President to "make the
protection of civil liberties and national security equal
priorities." This assigns very specific ("equal") weight to
crucial national priorities, a generalization that is unlikely
to hold true for each and every situation. There may be
situations in which it is impossible to make them equal
priorities, with civil liberties taking priority in most
situations, but national security may need to take priority in
some situations to protect American lives, without violating the
constitution.
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The measure also seeks to "instruct our national security
agencies to ensure that national security will be achieved
without invasive violations of civil liberties." As an initial
matter, what constitutes an "invasive" violation of civil
liberties is a matter of judgment.
Many Potentially Troubling and Fundamental Questions Remain
About Federal Surveillance Programs, Making It Seemingly
Perilous At This Time for the Legislature To Seek to Legislate
In This Area Until More Verifiable Facts Are Known and New
Reforms to Existing Programs Are Better Understood : In addition
to any other concerns, this measure addressing federal
surveillance programs would appear to be premature because there
are so many troubling unanswered questions about these programs
that clearly require more understanding and analysis. This is
particularly true given that the vast majority of the
information on these programs comes from often conflicting media
reports that cannot as yet be verified. These questions
include:
Exactly what personal identifying information has been
collected by the NSA, and when? Has any such personal
identifying information that has been collected changed
over the last 10 years, and if so how? How has that
information been collected? How has it been analyzed? Is
it kept and only later analyzed when there is a specific
search, or is it analyzed when received, by whom and how
broadly? Is it analyzed using computer algorithms? Or is
it analyzed by intelligence workers or technology workers
who could breach its confidentiality? How much access do
individual NSA employees or contractors have to the
information? What information is kept and what is
discarded? How long is the information kept?
While some initial press reports focused on just a few
surveillance programs, it appears that the NSA operates
other programs and they likely operate differently. How do
they operate and what constitutional questions may be
raised about their operation?
How exactly does the FISC oversight operate? What
information is provided to the FISC? How often and for
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what reason are government requests denied or modified as a
result of the FISC? Most of the FISC opinions are
classified, so it is impossible to know how robust the
court's analysis is. Apparently at least one surveillance
program has had to be changed because the court ruled the
program unconstitutional. How often does this happen? How
substantive were the changes made to the program? Did any
actual harms to any individuals result thereby?
How serious have the improper data collections been?
Have any of the improper collection activities been
intentional? Are most inadvertent? How have these
mistakes been realized and how have they been corrected?
Did anyone actually use this information, or was it just
collected and then deleted? What protections are now in
place to prevent improper collection? Is this a problem
that has been corrected, or is there ongoing potential for
unlawful collection?
What are the details of the terrorist plots that have
been reportedly foiled, and the terrorists who have been
captured because of this surveillance? Was the information
obtained through surveillance programs necessary to foil
these potential attacks? If so, would restricting any of
these federal national security surveillance programs
unduly raise the risk of potential terrorist attacks on the
nation's soil?
Thus it certainly is clear that there may well be very
legitimate and potentially troubling civil liberties concerns in
light of the cyber-surveillance that the federal government
began conducting during the Bush presidency in the wake of the
September 11th attacks. Without doubt many troubling questions
have been raised - and likely will continue to be raised --
about these programs. As of yet, however, far fewer questions
have been fully answered with any consistency or real
understanding.
In such an important and delicate area of the law and public
policy and security, this Committee may therefore prudently
decide that rather than weigh in hastily on this resolution that
reflects the reality that there is still very inadequate
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information and understanding of the complex underlying factual
and legal issues in this area, it may be premature to pass this
measure without a greater understanding of the surveillance
programs and the many potentially troubling questions raised by
them.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Leora Gershenzon and Tom Watts / JUD. /
(916) 319-2334