Mr. Chairman, I rise today to discuss shocking revelations reported in the media starting last Wednesday—that is nine days ago—and continuing for several days afterward, regarding the scope of the NSA spying program, including both foreigners and Americans. The NSA is the National Security Agency, its duty, as part of DoD, is to protect us from foreign attacks, just as DoD itself is supposed to protect us against foreign attacks. And DoD, like the CIA, is on the side of the firewall dealing with foreign threats, as opposed to the FBI and the Justice Department, who deal with domestic threats.
As of a week ago last Wednesday, The Guardian reported that a particular court order had ordered Verizon, the largest cellular company in America, to turn over its call records for all of its calls. All of its calls. I have the document from The Guardian’s website here in front of me. It is a document that was issued as a secondary order, by what’s known as the FISA court. That court is the Foreign Intelligence Surveillance Court, established under the Foreign Intelligence Surveillance Act.
Let’s start with the name of the court: the Foreign Intelligence Surveillance Court. As the name implies, as the name of the Act implies, the jurisdiction of the court is limited to foreign surveillance and foreign threats. This is by statute.
The order itself was printed and posted at the website. Millions of people have seen it since then. What it purports to be—and I say, “purports to be” but in fact the agency involved, the NSA, has not denied that this is a valid, real document—it says that the court, having found application of the Federal Bureau of Investigation for an order requiring the production of tangible things from Verizon, specifically Verizon business network services, etc., etc., orders that the custodian of records produces not to the FBI, but to the National Security Agency, a component of the Defense Department, upon service of this order continued production on an ongoing, daily basis, thereafter for the duration of this order unless otherwise ordered by the court, an electronic copy of the following tangible things [gestures to board] right here take a look at it. These tangible things are identified in the order as follows: one, “all call detail records or telephony metadata created by Verizon for communications between the United States and abroad,” which sounds like it might be international, and two, “wholly within the United States, including local telephone calls.”
On its face, this is an order for Verizon, our largest cellular telephone company, to turn over call records for every single call in its possession. Mr. Chairman, that includes calls by you. It also includes calls by me. In fact, it includes calls by me when I’m calling my mother, or my wife, or my daughter. And for those who are listening on C-SPAN or otherwise, it includes every call by you.
Now, the first question that comes to mind is, first, is this just for Verizon? Well, we don’t know for sure at this point, but the NSA has not denied that there are similar orders in extant for MCI, for AT&T, for Sprint, for every telephone company that carries a significant amount of data or calls in this country.
Another question is how far back does this order go? The order itself is dated, on its face, April 25, 2013. One of the more interesting things about this order, posted on The Guardian’s website, is that it has no starting date.Under this order, under the plain terms of this order, Verizon has to go and give the federal government, specifically the Department of Defense, the NSA, all of its call records, of all of its calls, going back to the beginning of time.And this obligation continues until July 19, 2013, presumably because the order will be renewed at that point upon request of the NSA and the FBI.
Let’s be clear about this: this appears to be an order providing that our telephone companies providing service to us, to turn over phone records for every single telephone call regardless of whether it is international or not. Now if somebody had come to me nine days ago and said to me, “Congressman Grayson, do you think that the Defense Department is taking records of every telephone call that you make, or I make, or everyone else makes?” I would say, “No. I have no reason to believe that. It would shock me if that were true.”
Well, it is true, and it does shock me. Why should we have our personal telephone records, the records of whom we call, when we speak to them, how long we’re talking, why should we have that turned over to the Defense Department? What possible rationale could there be for that?
Well, I’ll tell you what I think the rationale might be: because somehow, that makes us safer.
Well, let me say to the NSA and to the Defense Department: you can rest assured that there is no threat to America when I talk to my mother.
Now what exactly is wrong with this? What’s wrong with this, first of all, is that there is a firewall between the Defense Department and the CIA on one hand, and the FBI and the Department of Justice, on the other. One protects us from international threats. The other one protects us from domestic threats. That’s been the law in America since the 1870s, when Congress enacted and the President signed the Posse Comitatus Act.
And this order crushes that distinction. It eliminates it. It obliterates it. It kills it, now and forever.
Now, the second thing that is offensive about this court order is that it clearly violates the Fourth Amendment. The Fourth Amendment reads as follows: “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.”
Now, first of all, when the government seizes your phone records, unless you happen to be Osama Bin Laden, or someone close to him, there is no reason why the government would believe, or have reason to believe probable cause that you’ve committed a crime, or you’re going to commit a crime, or you have any evidence about someone committing a crime. There is no probable cause here.
Secondly, the Fourth Amendment requires particularity. There’s no particularity when the government insists by court order, and under threat of further action that Verizon, or AT&T, or Sprint, or anyone else be required to turn over their phone records to the government. There’s no particularity. And this, really, is the essence of the matter because if you ask the NSA for a justification, they’ll say, “Well, it’s legal.”
What do you mean its legal? Well, according to their published statements, including a statement by their director last Saturday, they maintain that it’s legal because of a single Supreme Court case decided in 1979, that said that the government, specifically local police authorities could acquire the phone records of one person, once. That’s the case of Smith v. Maryland, 1979. And because the Supreme Court says that at that point, the government could acquire the phone records of one person, once, the NSA is maintaining that its entire program is legal and that it can acquire the phone records of everyone, everywhere, forever.
That is a farce.
Now, the other document that came to light last Thursday, in other words eight days ago as I speak, was a document again posted at The Guardian’s and later at The Washington Post‘s website, and this is a document that is a PowerPoint presentation, which according to the reports, was a PowerPoint presentation to analysts working for the NSA. This PowerPoint presentation is labeled “PRISM/US-984XN Overview on The SIGAD Used Most in NSA Reporting Overview.”
What you see to my right is a reproduction of what was posted at the website a week ago. First of all, note that there are certain logos at the top of the page. Gmail, which for those of you not familiar, is the largest provider of email services and hosting; it’s run by Google. Facebook, many of us are familiar with that. I think my children are all too familiar with it—spend an awful lot of time on it. Facebook allows, among other things, private messaging between “friends.” Hotmail, which is Microsoft’s email server and service. Yahoo, which performs a variety of functions, including, among other things, hosting a large number of web pages—and, by the way, when you go to their web page, they can tell who you are from your IP address—and also, a very widely used email service. Google (and Google needs no introduction, I’ve already introduced it) Google allows you to do web searches—it, together with Microsoft, has almost 90% of the web search market in the United States. They keep a record of the searches that you make based upon your IP address. Skype, which is a telephone company that transmits calls electronically over the Internet. PalTalk, I’m puzzled—I don’t know what that one is. YouTube, which is the largest host of videos in the world, and again, can tell which videos you’re looking at by your IP address. And AOL Mail, which, as it sounds, is the America Online email service.
This document is dated at the bottom, April of 2013, meaning last month (or maybe two months ago). Let’s take a look inside [gestures to posters.]
One of the pages that’s been produced on The Guardian’s and The Washington Post’s website is this. By way of background, its been reported that this is a part of a longer document, it’s 41-pages long, only 5-pages have been released to the public through The Guardian and The Washington Post. So, I’m sharing with you the five pages that were released a week ago and are now public.
Let’s take a look at this one. This one says that the NSA’s PRISM program performs the following functions. Bear in mind that this is reported to be a training document given to NSA analysts to explain what they can do in this program. Who are the current providers to the program? “Microsoft, Hotmail, etc. Google, Yahoo, Facebook, PalTalk, YouTube, Skype, AOL, Apple.”
And what are they providing, specifically? As the document said, what will “you”, meaning the analyst, receive in collection? Collection from surveillance and stored communications. The document says that it varies by provider—we don’t know how it varies, but in general, what you get is the following: email, the NSA gets email from these providers; video and voice chats; videos; photos; stored data; VOIP, which is an electronic version of your actual words when you are speaking on the phone, VOIP stands for Voice Over Internet Protocol, it’s your voice; file transfers; video conferencing; notification of target activity, including logons, in other words, are you on your computer or not, etc.; online social network details; and what is blithely referred to as, “special requests.” As if all of that weren’t enough already.
Now, you might wonder, “How does the government actually get that information?” Well, the five pages that were released give us one answer to that question; let’s take a look at that.
If you look at the bottom, the green rectangle, you’ll see that it says that PRISM data collection is “directly from the servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.” The plain meaning of this—since its addressed to the trainees at the NSA, the people who will actually be doing the analysis of this data, and the injunction on the left which says, “You Should Use Both”—the plain meaning of this is that the NSA apparently has the capability to collect directly from the servers of these service providers, the information from the previous page. In other words, our emails, our chats, our videos, our photos, our stored data, our Voice Over Internet Protocol, our file transfers, our video conferencing, our logins, etc., etc.
Now, there’s an interesting distinction between these two documents. In the first case, with regard to the court order, the NSA’s position is this, “This is a valid court order, we view it as legal, if you don’t like it, that’s too bad for you, go change the law.” To which I say, “Fine, I’m going to try to change that law.” With regard to the second document, the situation is a little more ambiguous. What the NSA has said publicly is that the green rectangle is actually not correct. Now, bear in mind that no one said that this is not an NSA document. No one has said that it is Photoshopped. No one has said that it is anything other than what it purports to be and what it was reported as. However, the NSA has taken the position that its own document is wrong, for reasons that we don’t know, and the NSA in fact does not have the capability to directly take, collect, from these servers of these companies your emails, your Voice Over Internet Protocol, your photos, and everything else. They say that they just don’t do that. However, we’re still waiting for an explanation about how this green rectangle ended up in this document. If it’s not true, they need to explain how and why it’s not true.
The NSA also says that for reasons not evident from this document at all, they don’t do this for U.S. citizens. Now, that raises a host of questions. You might think that there might be something else in this document that says that, but the NSA hasn’t maintained that. In other words, they haven’t said, “If you look somewhere else in this document, you’ll find that we don’t do this for U.S. citizens.” And lest you think that this is somehow selective, on my part or anybody else’s part, it’s been reported that the whistleblower provided the this entire document, all apparently 41-pages, to the The Guardian and The Washington Post and they decided on their own to only release these five. So, if there is something that indicates that the NSA is only doing this for Americans [sic], apparently it’s not in this document, and we’ve reached this strange point where people are being trained in the NSA that they will have the ability to get the emails and the other information on Americans, but somehow were told later separately that’s not correct.
In addition to that, the NSA says that there is some process by which they can distinguish between the emails of Americans and the emails of foreigners. Frankly, that is a technology so advanced to me, it seems like it might be magic. I used to be the President of a telephone company. I have no idea—I have literally no idea—how I could distinguish between the email accounts of an American and a foreigner. I don’t know how to do it. Maybe they can tell us how they’re doing it, if they’re doing it at all.
That’s the real question: if they’re doing it at all. I don’t know how they can possibly say, “This email account is for a foreigner. This email account is for an American.” If they can’t, that means they’re taking all the stuff, American and foreign, and having it, using it, looking at it, and destroying our privacy rights. That really is the heart of the matter here.
I don’t understand why anyone would think, anyone would think, that it’s somehow okay for the Department of Defense to get every single one of our call records, regardless of who we are, regardless of whether we are innocent or guilty of anything—I’d venture to say that there are Americans who have never even had a parking ticket, yet the Department of Defense is pulling their call records as well.
Now, eventually we will find out whether the NSA’s own document is misleading, and the NSA is not pulling email accounts, and emails, and photos, and VOIP calls on people who are Americans. Because if you read this document, it sure looks like they are.
You know, this is not the first time that we’ve had this problem. This is not the first time that the government has entered into surveillance on people without probable cause. Many of us remember that there was FBI surveillance of Martin Luther King, including wiretapping and bugging his personal conversations. I thought, perhaps naively, that we’ve moved beyond that. And in some sense, we have moved beyond that because now, they’re doing it to everyone.
In fact, one could well say that we are reaching the point where Uncle Sam is Big Brother.
I submit to you that this program, although the proponents depict it as American as apple spy, this program is an anti-American program.
We are not North Koreans. We don’t live in Nazi Germany. We are Americans, and we are human beings. And we deserve to have our privacy respected.
I have no way to call my mother except to employ the services of Verizon, or AT&T, or some other telephone company. I’m not going to string two cups between my house and her house, 70 miles away. That doesn’t mean that it’s okay with me, for the government, and specifically the Department of Defense, to be getting information about every telephone call I make to her.
It’s not okay with me, and I submit to you Mr. Chairman, it’s probably not okay with you. And I know that for most of the people who are listening to me today, it’s not okay with you either.
Ben Franklin said, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty, nor safety.” I agree with that. We do not have to give up our liberty to be safe. I have already heard from people who tell me that they’re afraid. They’re afraid they’re going to be blown up by a terrorist somewhere—that their personal safety is at risk. And it’s okay with them if the government spies on them.
Well, it’s not okay with me. And I stand here on behalf of the millions and millions of Americans, who are willing to say, “It’s not okay with me either.” I’m fed up. I’m not going to take it anymore.
When we had a civil war and there were one million armed men in this country, who rose up heavily armed, to fight against our central government, we did not establish a spy network in every city, every village, every town, every home. But that’s what we’ve done right now.
When we had—when I was growing up—ten thousand nuclear warheads pointed at us, and some people believed there was a communist under every bed, even then, we did not establish a spy network as intrusive as this one.
I submit to you that this has gone way too far. And that it’s up to us to tell the Defense Department, the NSA, the so-called intelligence establishment, “We’ve had enough. We are human beings and we are a free people.” And based upon this evidence, we’re going to have to work to keep it that way.
That’s what I’ll be doing. I hope you’ll join me.
Thank you Mr. Chairman, I yield back the remainder of my time.
