Hearing of the Senate Committee on the Judiciary Panel I - FISA Amendments

Interview

Hearing of the Senate Committee on the Judiciary Panel I - FISA Amendments: How to Protect Americans' Security and Privacy and Preserve the Rule of Law and Government Accountability

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SEN. DURBIN: Thank you, Madame Chair.

Mr. Wainstein, when I use this little piece of technology to make a phone call or to send an e-mail message, I think I have a reasonable right to expect that that communication, and my identity, are going to be protected, confidential, private -- except with some notable statutory exceptions.

If the company that I'm doing business with receives a warrant to search or obtain records, that's understandable. At that point, their obligation to me as a customer is secondary to this warrant that they've received.

Now in this context of national security, under the statutes written, there's a second possibility. And that is, in addition to a warrant there could be the so-called certification, that the government has the right to request this information that -- who I am, and what I said, what I did.

Now you've stated this in the most general terms in your testimony, in terms of the responsibility of the telecommunications provider to me, or any other customer, and you said, "The committee's considered judgment reflects a principle in common law that private citizens who respond in good faith to a request for assistance by public officials should not be held liable for their actions."

And so let me ask you this: In the course of our government's reaching out to telecommunications providers, asking for information about communications for the purpose of national security, did any of those telecommunications providers refuse to cooperate -- refuse to provide the information?

MR. WAINSTEIN: Senator, I'm just not going to be at liberty, or equipped for that matter, to answer that question. Obviously it's classified. I wasn't even around during most of that time, at least in the -- in Main Justice. But I think that's something that you -- I'm not sure if you went to the hearing yesterday -- or the briefing yesterday, but colleagues of mine were up there yesterday explaining the chronology and the history of the whole program, Terrorist Surveillance Program, the interaction with the providers, and we would be happy to come up and answer any more questions.

SEN. DURBIN: So in order to protect what was said at that hearing, let me continue on in a hypothetical way -- noting that there has been one telecommunications provider, through one of its officers, who has reported publicly that they refused to cooperate. But let me ask you this, if the question is good faith on the part of the providers, and we come to learn that a telecommunications provider refused to cooperate, saying that the certification that was provided by the government was not adequate under the law, is that something we should take into consideration?

MR. WAINSTEIN: In deciding what sort of immunity, and whether or not --

SEN. DURBIN: In deciding whether or not it's a good-faith effort by a company to cooperate with government.

MR. WAINSTEIN: Well, not knowing the fact and not being able to -- (inaudible) -- I knew them. I mean, the fact that a company refused doesn't necessarily make the rightness of their position.

What I -- what I see is that there were letters that went out to these companies that said very forcefully, this is being directed -- this is directed by the president, and this has been deemed lawful at the very highest levels of the government. And that's a pretty strong assurance.

And so I guess, in terms of good faith, that's very strong evidence of good faith. The fact that one company refused to cooperate -- if that's, in fact, the case, I don't think that necessarily undercuts the strength of those assurances.

SEN. DURBIN: I disagree. If a telecommunications provider looked at the same certification as another telecommunications provider, and concluded it was not sufficient under the statute to waive that company's responsibility to protect the privacy and communications of its customers, I think that's relevant to the discussion here.

And assuming, for the sake of discussion, that this company that has already publicly disclosed what happened is factual in what they've said, we at least know that one telecommunications provider took a look at what was being said, and said, that's not good enough, I have a responsibility to my customers to protect their identity.

So that raises a question of fact, doesn't it -- as to what is good faith and what isn't? Which company operated in good faith? Where do we resole questions of fact in America? Questions of fact in law are resolved in court. And what you're suggesting from your testimony is, "We don't want to resolve this. We don't want to have these telecommunications providers held accountable to explain their conduct." Now that troubles me. It troubles me because, from my point of view, it's going to have a chilling effect on the relationship of telecommunications providers, their customers, and our government.

How much can I trust in the future if I know that telecommunications providers can disclose my conversations, information about me, with impunity, with immunity, under the law? What do you think?

MR. WAINSTEIN: Well, Senator, thanks for that line of questions.

Back to the fact that one company might have refused -- and keeping it in the abstract, I don't know the facts, it can be characterized that they did a good-faith job, and they determined that this wasn't good for their -- this wasn't sufficient.

It also could be an example of the phenomenon I just described to Senator Graham, which is a company saying, "Boy, I'm just not going to go out -- I'm not going to do anything to assist the government. I'm just going to play it easy, go into my cell, and not -- and not try to help because I'm going to be risk-averse." Well, the problem is is that the more that these companies are exposed, the more you're going to have companies doing exactly that.

Now I don't know what the thought process was in this particular case, but I'm saying that it could be --

SEN. DURBIN: Interesting --

MR. WAINSTEIN: -- it could be looked at that way.

SEN. DURBIN: Interesting and relevant question, isn't it? The -- (inaudible) -- usually resolved in a court, by a judge. And the point that was made earlier by Senator Leahy, is that some moment in time, after the public disclosure of the so-called secret program, our government decided, you know, the safest thing to do is to go through the FISA Court. If we hand them a court order, we don't have to worry about whether or not this authorization document is really going to carry the day.

That, to me, was a conclusion and admission of the obvious. And that is an admission which, I think, shows where our government should have been from the start. They knew that if they went through the FISA Court with a court order, the telecommunications provider would have no argument. But when you get to this so-called authorization, there clearly was an argument, at least for one telephone -- or telecommunications provider.

So, you know, it strikes me as strange, middling-strange here, that we're in a position saying that this company that is supposed to protect my identity, and my communications, if it asserts my privacy -- my right to privacy over a government request, that somehow they're obviously not doing their, quote "patriotic duty" -- that's how you referred to it, "their patriotic duty."

It's even been suggested by one of my colleagues here that these lawyers bringing this lawsuit, we got a question whether they might be connected with terrorist organizations -- remember that? Remember that statement that was made earlier? Hasn't this gone pretty far afield from the fundamental question, the conflict between privacy and security?

Isn't it reasonable to say, that company has a statutory and personal obligation to me to protect my identity, and only to give it up for a legitimate statutorily-recognized purpose -- a court order or a certification that they can stand behind?

MR. WAINSTEIN: I don't -- just to, just to be clear, I've not heard, and -- (inaudible) -- in the newspapers, of bad faith on the part of any companies. And I don't -- and we're not trying to suggest -- I'm not suggesting that at all. I think, actually the companies acted in good faith, and I do believe they acted out of patriotic duty, or a sense of patriotic duty.

I think though that the legislation now that Senate Intelligence ( ?) -- (inaudible) -- (and ?) the Senate Intelligence bill, I think is a good middle ground where it gives targeted immunity for the events after 9/11 -- where companies did act on these assurances, but then lays out, prescribes a course for those kind of defenses in the future.

And there's a second part which does that, which I think is quite sound because it says, look we're going to deal with this one-shot problem, post-9/11 -- between 9/11 and when we went to the FISA Court, or got FISA Court approval -- but then from here on out, this is the mechanism that we're going to use, and we'll do that without having to resort to the -- (inaudible) -- . I think that's a very sound approach.

SEN. DURBIN: Thank you very much.

Thank you, Madame Chair.

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