WASHINGTON -- Rep. Blake Farenthold (R-Texas) tore into administration officials testifying before the House Judiciary Committee Wednesday over the National Security Agency's use of broad surveillance programs to monitor the phone and electronic communications of Americans.
The exchange came during a hearing on oversight of the Foreign Intelligence Surveillance Court amid criticism of its increasingly secret nature. The court authorized the NSA surveillance programs under Section 702 in classified rulings.
Farenthold asked Deputy Attorney General James Cole, one of four administration witnesses present, why "having every phone call that I make to my wife, to my daughter" could be "relevant to any terror investigation." Cole attempted to answer that every call might not be relevant, but he was quickly cut off by Farenthold.
"But you’ve got 'em," the Texas Republican said.
"I don’t know that they would be relevant, and we would probably not seek to query them because we wouldn’t have the information that we would need to make that query," Cole responded. When the NSA makes a "query" on a call, it can secure metadata like the length of the conversation and to whom the call it was placed.
Farenthold was unconvinced, suggesting that NSA leaker Edward Snowden might be able to query Farenthold's personal phone calls without the administration's knowledge. When Cole replied that it was unlikely Snowden would have that kind of access or be able to make such a query, Farenthold quipped, "That's slightly reassuring."
The Texas Republican went on the argue that the FISA ruling authorizing the NSA surveillance equates to a general warrant -- something the Fourth Amendment was designed to prohibit.
Cole countered that according to the Supreme Court, the phone data "is not something within which citizens have a reasonable expectation of privacy."
"So do I have a reasonable expectation of privacy in any information that I share with any company?" Farenthold shot back. "My Google searches, the email I send … do I have a reasonable expectation of privacy in anything but maybe a letter I hand deliver to my wife?"
Cole reiterated that the Supreme Court has ruled that metadata is not covered under the Fourth Amendment because there is "no reasonable expectation of privacy." He added that such expectations would be contingent upon the "facts and circumstances of the documents."
A visibly frustrated Farenthold issued some final words before yielding back his time.
"I just want to point out how concerned I am about this data being so easily available, and just with the stroke of a pen Congress and the president could change the search criteria … change the definition of a terrorist," he said.
Like Farenthold, several other lawmakers present at the hearing grew testy while grilling officials on the government's surveillance programs.
Rep. Jerrold Nadler (D-N.Y.), an outspoken defender of civil liberties, asked Cole to name other instances in history of similar metadata collection. The abuse, he said, came from the collection itself -- not whether or not the data was used.
"The fact that a secret court -- unaccountable to the public -- may join you in abuse, is of no comfort whatsoever," Nadler said.
Perhaps the biggest moment of the hearing came when Rep. Jim Sensenbrenner (R-Wis.), the author of the Patriot Act, threatened to allow Section 215, under which the NSA programs are lawful, to expire.
Sensenbrenner pointed out that it seems like a double standard for the government to argue that it's necessary to use general sweeps of Americans' phone records to fight terrorism, and then to also say that the widespread collection isn't a problem because records aren't used.
When Cole said the government wasn't trying to have it both ways, Sensenbrenner disagreed.
"You sure are because you’re saying, 'Have the court authorized to get the records of all the phone calls that are made to and from phones in the United States -- including people who have nothing to do with any kind of terrorist investigation,'" he said. "You gobble up all of those records, and then you turn around and say, 'Well, we’ll pick out maybe 300 phone numbers' out of the billions of records that you have every day and you store for five years there."
It was then that the Wisconsin Republican, who slammed the government's interpretation of his legislation, issued his threat, noting that Section 215 of the Patriot Act expires at the end of 2015.
"Unless you realize you’ve got a problem, that is not going to be renewed," Sensenbrenner said. "There are not the votes in the House of Representatives to renew Section 215. You have to change how you operate Section 215, otherwise in two and a half years you’re not going to have it anymore."
Whether or not Sensenbrenner would have enough bipartisan support to allow a key provision of the Patriot Act to expire, however, remains uncertain. At least for now, Congress is unlikely to make significant changes to the structure of the NSA programs. Several bills have been introduced since the NSA revelations last month to address concerns over data collection and transparency -- including legislation that would declassify FISA Court opinions -- but the vast majority of them have picked up little steam.
A recent report found that the FISA Court broadened the definition of the word "relevant" to justify the NSA's sweeping surveillance programs.
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