Federal News Service - A Joint Hearing of the Commercial and Administrative Law and Constitution Subcommittees of the House Judiciary Committee

Federal News Service

HEADLINE: A JOINT HEARING OF THE COMMERCIAL AND ADMINISTRATIVE LAW AND CONSTITUTION SUBCOMMITTEES OF THE HOUSE JUDICIARY COMMITTEE

SUBJECT: PRIVACY AND CIVIL LIBERTIES POST-SEPTEMBER 11TH

CHAIRED BY: REPRESENTATIVE CHRIS CANNON (R-UT); REPRESENTATIVE STEVE CHABOT (R-OH)

WITNESSES: LEE HAMILTON, VICE CHAIRMAN, AND SLADE GORTON, MEMBER, 9/11 COMMISSION; JOHN MARSH JR., TECHNOLOGY AND PRIVACY ADVISORY COMMITTEE; NUALA O'CONNOR KELLY, CHIEF PRIVACY OFFICER, HOMELAND SECURITY DEPARTMENT

LOCATION: 2141 RAYBURN HOUSE OFFICE BUILDING, WASHINGTON, D.C.

BODY:

BREAK IN TRANSCRIPT

Mr. Scott, would you like to take five minutes? Before you do so, let me just point out that the ranking member has graciously agreed to defer in the event that others need to leave. So we have not skipped over Mr. Watt, but he's been gracious in letting others go first. Mr. Scott?

REP. BOBBY SCOTT (D-VA): Thank you, Mr. Chairman. Mr. Hamilton, with the extra powers for information gathering, wiretapping, data mining and what not, did the commission limit these extra powers to terrorism-related investigations? The Patriot Act was not limited to terrorism, and some of us had some concerns about that. If it had been confined to terrorism it might not have been controversial. These extra powers may be extended to any kind of criminal investigation.

MR. HAMILTON: Well, Mr. Scott, our focus was on terrorism, and when we recommended as we do in several places an expansion of government power we were limiting it to terrorism.

REP. SCOTT: Do I understand that you did not recommend a national ID card?

MR. HAMILTON: We did not.

REP. SCOTT: The no-fly lists have obviously been overinclusive from time to time as the recent-the recent situation with Senator Kennedy is just one of the most recent examples. How many false positives should we be tolerating before we-just because-I mean, the more people you stop and keep off the plane, the more likely it is that one of them might actually be a terrorist.

What kind of tolerance should we have for these false positives? Senator?

MR. GORTON: Our goals should be no false positives. But one of the reasons we were so interested in this subject was on 9/11 the FAA's no-fly list had 16 or 18 names on it-that's all. Part of our reason for a national intelligence director and a National Counterterrorism Center was at the same time the State Department had a list of several thousand people that it suspected to be terrorists. The FAA didn't even know the list existed. They learned about it at one of our hearings, you know, earlier this year. So we do think that there should be an integration of valid terrorist information with the very form that these terrorists use to attack the United States.

Bit it is obviously wrong to confuse one name for another. You know, just because there's one bad guy named Edward Kennedy doesn't mean Senator Kennedy should be kept off. We've got to be very careful, it seems to me, to try to see to it that the lists are real lists and identify real people, and don't have a significant number of false positives.

REP. SCOTT: Thank you. Secretary Marsh, a lot of the data- mining information went to the level of personalization of the lists and the information, but didn't really go to the kind of information that we're talking about. What kind of information can be obtained in this data mining? Are we talking about I guess library records, travel records, credit, medical? Exactly what are we talking about?

MR. MARSH: The databases actually can cover a very broad range of different subjects-cover travel, cover finance, it can cover probably possibly health records, if you get an exception. The data mining is an accepted and a very effective process. It's not new. We did data mining with fingerprints and law records years ago. But it is now so sophisticated because of computerization, and it can reach so far and it reach across boundaries, and it can be international.

What we need are methodologies-and I think a number are being developed-whereby we can confine those lists very quickly and minimize what we have to have, and then anonymize, so that there's no disclosure of who you're looking at until you reach a more final conclusion --

REP. SCOTT: Well, one of the things that we had-I'm not sure what the status of it is now-the FBI guidelines used to be that you wouldn't gather information unless you were actually investigating a specific crime or had some specific investigation. You just wouldn't gather information.

MR. MARSH: I believe that was in law enforcement, wasn't it?

REP. SCOTT: Well, are we mining this data just for generalized --

MR. MARSH: That which is done-defense criteria on data mining is different than law enforcement, but in the defense you had-that's done toward a specific objective and inside the NSA you'll find that they are very specifically oriented. I think there are 650 million intercepts a day that are filtered through, but they are very specific, and they're looking at a suspicious threatening person and using a general pattern search to try to find that person.

REP. CANNON: Does the gentleman desire additional time?

REP. SCOTT: Can I follow through on that, Mr. Chairman?

REP. CANNON: Without objection, the gentleman is recognized for an additional two minutes.

REP. SCOTT: Thank you. Are we talking about-we're looking after a specific person to find out-to track him down in terms of travel and who he is contacting? That is still you are looking at one specific person --

MR. MARSH: Right.

REP. SCOTT: -- not just going into a database and seeing what pops out.

MR. MARSH: That's right, correct.

REP. SCOTT: So you mentioned in law enforcement we're relegated to waiting until you're actually investigating a crime. In this case are you just gathering information?

MR. MARSH: For intelligence purposes, yes. The criminal --

REP. SCOTT: Is this United States citizens?

MR. MARSH: United States citizens comes under court order. It would come under --

REP. SCOTT: So you have to have particularized suspicion --

MR. MARSH: That's right.

REP. SCOTT: -- and probable cause?

MR. MARSH: Whenever you're dealing-all the rules change when you have U.S. persons, which is a United States citizen, a permanent foreign resident or a U.S. corporation that's not foreign controlled.

REP. SCOTT: Thank you, Mr. Chairman.