BILL ANALYSIS Ó
AJR 27
Page 1
Date of Hearing: August 27, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AJR 27 (Donnelly) - As Amended: August 22, 2013
SUBJECT : Limiting Internet and Blanket Electronic Review of
Telecommunications and Email Act
KEY ISSUES :
1)WHAT IS ACTUALLY GOING ON IN FEDERAL SURVEILLANCE PROGRAMS
TODAY?
2)SHOULD THE LEGISLATURE ADOPT A RESOLUTION SUPPORTING THE
PASSAGE OF THE "LIBERT-E" ACT IN CONGRESS, WHICH SOUGHT TO
RESTRICT FEDERAL SURVEILLANCE ACTIVITIES BUT WAS RECENTLY
DEFEATED?
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, specifically seeking to express the
Legislature's support for a bill in Congress that was recently
defeated. Specifically, this measure urges Congress to pass and
the President to sign into law the Limiting Internet and Blanket
Electronic Review of Telecommunications and Email Act (LIBERT-E
Act or the Act), which if enacted into law could severely
curtail federal surveillance activities. The Act would require
that applications to the Foreign Intelligence Surveillance Court
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(FISC) for an order to produce certain kinds of information be
limited to producing information that pertains only to an
individual that is the subject of an investigation. That
defeated measure would purportedly likely end government
surveillance programs that federal officials have stated
continue to be absolutely vital to protect Americans from
terrorist attacks.
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 for two reasons. First,
given the defeat of the measure the resolution refers to, it
seems improvident for the State of California to weigh in on the
debate surrounding that particular measure at this time. Should
it be revitalized at some time in the future there will be time
to review its latest approach and consider the merits on the
Legislature formally expressing its views about it. Secondly,
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. 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 whose references may no longer be timely and which
reflect 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 to pass and the President to sign into
law the Limiting Internet and Blanket Electronic Review of
Telecommunications and Email Act (LIBERT-E Act). Specifically,
this measure , amongst other things seeks to put the Legislature
on record urging Congress to pass and the President to sign into
law the Limiting Internet and Blanket
Electronic Review of Telecommunications and Email Act.
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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
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 the U.S. Constitution implies a right to privacy in
various aspects of one's personal life. (See, e.g., Griswold
v. Connecticut (1965) 381 U.S. 479; Roe v. Wade (1973) 410
U.S. 113).)
3)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)
4)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 to pass and the
President to sign the LIBERT-E Act to protect Americans from
"massive invasions of their privacy." In support of the
resolution, the author writes:
The LIBERT-E Act restricts the federal government's
ability, under the USA Patriot Act, to collect information
on Americans who are not connected to an ongoing
investigation. The bill also requires that secret Foreign
Intelligence Surveillance Act (FISA) court opinions be made
available to Congress and summaries of the opinions be made
available to the public.
It also imposes reasonable limits on the federal
government's surveillance by establishing stricter language
with respect to FISA court's determination of whether
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records the government wants are actually relevant to an
investigation. It also makes sure that innocent Americans'
information is not needlessly swept up into a government
database. LIBERT-E prohibits the type of government dragnet
that the leaked Verizon order revealed.
AJR 27 will ensure that the California delegation knows of
the State Legislature's commitment to maintain the privacy
rights of all Californians and our support of HR 2399.
Background : As noted above, the LIBERT-E Act, which would
restrict federal surveillance programs, was recently defeated,
the bipartisan defeat occurring in the House of Representatives.
Among other things, that Act would have purportedly restricted
applications to a court for an order requiring the production of
information relevant to an authorized investigation by requiring
that the information sought pertain only to an individual that
is the subject of such an investigation. Since not all federal
surveillance programs are known and understood, it is of course
not at all clear what other limitations this defeated measure
might have had on efforts to protect against terrorist attacks.
Last month, the LIBERT-E Act was offered as an amendment to the
annual defense spending bill. There was not insignificant
support for the amendment. However, as described in Roll Call,
House Intelligence Committee Chair Mike Rogers (R-Michigan)
argued against the amendment:
But it was Intelligence Chairman Mike Rogers, a fellow
Michigan Republican, who led the charge against the
proposal as a matter of life and death. He referenced
9/11 and said that, after the 2001 terrorist attack,
Americans asked "what if" there were a way we could
have prevented the attack. "What if we had caught
it?" Rogers asked. "The good news it's not
theoretical. Fifty-four times this program stopped and
thwarted terrorist attacks here and in Europe, saving
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real lives. This isn't a game. This is real."
Rogers said the amendment would have returned the
nation to where it was on "Sept. 10."
(Matt Fuller, Amash NSA Push Falls Just Short after Spirited
Debate, Roll Call (July 24, 2013).)
In the end, the amendment was narrowly defeated on a bipartisan
207-217 vote. Given that defeat, and the fact that the
President has now announced many significant reforms to the
nation's surveillance programs that may make that measure
outdated, it would appear to be imprudent at best for the
Legislature to retroactively weigh in on the debate surrounding
that defeated measure.
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
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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
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.)
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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
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
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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
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
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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
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.
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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 appearing not timely, 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
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
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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 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 a resolution that
may no longer be timely (especially given its defeat in the
Congress and the President's new surveillance reform
initiatives), and that reflects a reality that there is still
very inadequate 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
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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