that having independent counsel review of government applications before it it would be necessary or desirable, and the pope. this appears to be an approach reflected in legislation passed by the senate intelligence committee. in contrast as i understand it, the freedom act requires the government to provide every application to the advocate. question. between the different advocate proposals in the u.s. freedom that in the senate intelligence committee bill, which do you believe is a better perched in making the fisa court process more adversarial and why? >> senator grassley, sent the department of justice at the age of the conduct the litigation before the fisa court, i am going to do for the answer that to deputy attorney general cole, although there's a lot of interagency discussion about the appropriate approach, which i think he can layout.

>> senator grassley, we set a member number of occasions we find it there is a use and value to having an independent legal representative in the fisa court process in the appropriate circumstances. we would not advocate or recommend having one for all of the procedures that go on there. many of them like a normal criminal cases are routinely done in an expert databases. they are done usually with a fair degree of asked etienne and efficiency and we think a permanent public advocate might impede that process if it is applied to every single thing that they are. they would also be some constitutional issues facing our public advocate on every single issue. we would propose that it be an amicus appointed by the court when the court feels that they have the need for another event another point of view when it's a significant issue involving

privacy issues, civil liberty issues that the court would like to have another view on. that would be a good example of a time. something like both data collection programs for somebody may want to have a view of what the law is other than the governments view. we think it would be a good area. the court is in the best position to determine when and where it's going to need this kind aims into it only only for those issues. >> general alexander, taking five seconds to ask this question. here are director testified the nsa was conducting an investigation to have so highly classified information was compromised by single contractor. he said the nsa would report back to congress about individual and systemic responsibilities of what occurred. when can we expect the report? >> we will pass them on up right away. who taken 41 different actions and will get you report on what bizarre. >> what is right away? >> over the next week.

>> so we'll have it by wednesday. >> thank you, mr. chairman. >> guys. thank you. i'm going to ask another question about 215 phone records and fisa court and so on. it says these are authorized in the appeal. we've never had a court rwandan. the bill i had is not required and advocate in every fisa court case. it would be only when the court agreed it might be helpful. we also have statements from judges that if that was the case, there may be more credibility with the court or at least more of a willingness on the part of the public to accept

courts to operate in secret. would you agree with that, mr. cole? >> i think that would help the public have better confidence. i think the court does run well. i think there's a great deal of independence from my experience with the court in its ruling. it is not, by any means, it rubbers am. but i think there is a value to the public to having some other person, some other advocate in the appropriate kinds of cases. i think there's a value to that, senator. that is a good idea as long as we keep it in the right matters. so i would agree with that. >> senator klobuchar will submit her questions for the record. i has to be answered as quickly as possible. now, we get the press account the cell phone location records every day. it's gathering information for communication and information online gaming site.

the stories directed abroad. i know the nsa was making plans under section 215. we also note the nsa engage in internet mad at data under the registers. suggest to me that under that kind of legal interpretation the nsa would have information and they suggest -- [inaudible] >> mr. litt, i know the program authorized e-mail and other internet metadata who shared down in 2011 because it was an operationally useful. under the current law, the nsa will be able to restock the collection of internet data.

>> if the nsa and department of justice were able to make the showing to the fisa court that the collection of internet metadata in bulk, which of course is the category of information that is not protected by the fourth amendment, but if it were relevant to an authorized investigation, could convince the fisa court of that. and yes it would be authorized. >> to shut down his not being operationally useful. would you have to go to the court? >> to restart the collection internet data which are to go to the court? >> i believe we would. >> mr. cole. >> yes, mr. chairman, i think you have to get court authority just like under 215 to do that and that would only last a period of time and have to be renewed periodically. there's no lack of authority. >> technological limitations. the fisa registered statute

maintain all internet metadata. not just e-mail of the data. >> i think that is correct. again, it would be limited to the meta-data in that regard. >> just make sure i can mr. cole answer. limitation would be metadata. >> you cannot be content. in the latest order of the fisa court under 215, is specifically excluded locations. the mac is going to have only you would have to show the categories that you're seeking was in fact relevant to the authorized investigation. >> mr. cole coming of talked about the legislation by senator leahy and i have talked about to have it the privacy act. we want to require criminal matters that they obtain a

probable cause in access to the content electronic communication stored by a third-party provider. section 215 the u.s.a. patriot act requires government show only relevant to an authorized intelligence at best edition for two chain records. i am not talking about the more standard usage of 215. in section 215 never been relied upon to obtain the contents of stored communications of a third-party provider? >> not that i'm aware of, mr. chairman. >> mr. litt. >> i'm hesitant to give an answer to send a question i've ever asked. i prefer to get back to you. >> can you get back to me by the end of the week? >> i will try.

>> if they haven't as a legal matter, could section 215 be used to obtain the contents of communication? >> i would have to think about that. considering it is limited to the types of information you can give it a grand jury subpoena. i'd have to look because of the aspect of stored communications and things of that nature, i would have to check, but i'm not sure. i have to go back and look at that. without a check of the legal authorities, i'll get back to you on that, mr. chairman. >> i appreciate you checking. >> yes. >> are serious legal ramifications to your answer. >> i agree. i'm going to yield to senator franken, but general alexander, utah about using -- amounted to you in my next round about going

to the private sector looking for best practices for them. you can imagine i'm going to ask that those were part of his had been used with a 29-year-old sub contractor been able to walk away with all your secrets that mr. snowden did? >> are you going to ask that in the next round? do you wanted answered now? >> that's okay. you've been waiting patiently. zero wait my turn. >> well, okay, y'all plenty of time to think about that. i have a question for you. we'll see if you can do both at the same time. i have the surveillance, transparency act or think you are all familiar with. among other things, general alexander, the bill would require nsa to tell the american people how many of them have had

their communications collect and pay the nsa. do you think the american people have the right to know roughly how many of them have had their information collected by the nsa collects >> i do, senator. the issue is how do you describe it? goes under a court order. under fire that has enough to click a contents of communications, we have to get a warrant. the issue would be almost in a title iii court you tell someone, a u.s. person who may not be a u.s. citizen that we are tracking them here in the united states or that we've identified that. >> i'm not suggesting you have to tell people they're being surveilled. what i'm saying is the american people have a right to know how many american people have that

information collect it. it's a different question. i wasn't suggesting we picked people off. >> in broad terms, absolutely. for example, under 215 today, less than 200 numbers approved for suspicion been searching a database. >> 200? >> 200 orders or 200 people? >> 200 numbers. some of those may be multiple numbers per person. those numbers could be both foreign and domestic. in fact, they are. but that's the total number for that category for section 215 today under that program. the other one that i think and i think the deputy attorney general mentioned as we can also put out more about what we're doing under the fa 702 programs that we've compelled industry to do in a more transparent manner.

the issue is how do we do that without revealing some of our own capabilities? are working to the interagency to get the resolution on that. >> okay. i am being told by staff there is actually number of people that have had their phone number searched, not collected. >> so under 215, all the data is going into a repository. so if for example i am talking to a foreign terrorist, my number would automatically hit that. in fact come you probably want to know that. >> we need to know that. >> the issue would be how many of those. what we would do is look at those and based on our analysis, give those numbers are read to the fbi for them to then go through their probe or process to look at those numbers. >> there's a difference between collective and thirst. but let's talk about the 702.

this was to target non-americans, right? >> people believe to be outside the united states. >> bright. should the american people know how many of the americans have gotten caught up in that? >> that again -- and i don't mean to hedge. let me tell you the difficulties that if the terrorists we are going after is talking to another person, and that communication is nothing that says i'm an american and here's my social security numbers. the fact is when we're tracking the terrorists, after talking to find people in one of those is american, the visit was knowing that are very small. if we find out that an american in their procedures the attorney

general and the courts have given us that we have to do to minimize the data on that american. >> okay, i guess my question is, is that my bill calls for the nsa to report how many americans information housed in searched, husband looked at at by each and. and i'm not talking not necessarily a precise number, but 702 says he can only look at non-american -- non-americans. look. my feeling is that the american people are skeptical of executive power, that when there is a lack of trained parent be, they tend to suspect that something -- they tend to be very skeptical and suspect

abuse. the part of the reason to have transparency is for people to be able to make their decisions based on some real information about whether or not this power is being abused or not. i believe you gentlemen have our national security interests -- that's your interests. i also believe that coming in now, you keep saying there's oversight from all three branches of government. we are one of the branches. >> we are feeling it. >> and my feeling doing the oversight is that i would do more comfortable and the american people would be more comfortable and feel they can write for themselves if they knew how many americans are being caught up in a program

like 702 that is designed by law not to target americans. >> senator, absolutely. i would just put into this if i were going to be a comment -fest to do that, we will give you a philly and truthfully that with which we know. my concern would be two days later we find out that was also an american. so we can report that later. do you see what i mean? >> what i'm talking about in my legislation isn't a precise number. it is the range. what i've been told is that producing this estimate would be very difficult. but i don't think it would be that difficult. >> so maybe i would just offer, senator, to have you come out. we can sit down and show you this and then come up with perhaps a way to do that. i actually agree with you. i think this is the right thing to do because the numbers in that big.

if we could explain it to the american people and you as one of our three elements of our government can say here's what we see and here's what the administration administration sees and hears a course in all three of us together say the best number we can come up with when you see that, when the american people understand that, they'll know we're doing this right. so i agree with you. >> i see mr. litt, who i know quite well. we discuss this a lot, sort of jumping out of his seat. >> firmly planted, sir. >> eager to answer. that's why i'm afraid i've -- no, go ahead. [laughter] i've never seen him this eager, frankly. >> mr. chairman, fmi for a minute, this is a good example of the kind of thing i was talking about in my opening remarks. we all agree the question you pose is a reasonable one, which is how many americans are caught up in this? the problem is trying to find a

way to provide the information in a way that is most operationally feasible and doesn't compromise sources and methods. we got some ideas in that regard. they're not fully fleshed out yet. we do want to work with your staff in theaters ways we can arrive at some thing that will give at least some sort of reasonable proxy against americans in i.t. of what the impact of their surveillances. >> i'm glad i've got this answer today because this has been part of my discussion with faux dni, where you have said this may be too difficult to do. sounds like we got movement on this. i want to ask a question about what you were referring to, mr. chairman, about location information. i really am way over my time. thank you for your indulgence. this is on the issue.

general alexander in a hearing hearing -- let me go beyond that. last week the "washington post" asked intelligence official speaking on the record to ask how many americans have had their location information collected by the nsa. the official answer, quote, it is awkward for us to try to provide any specific numbers. right after he said that, the article says that an nsa spokesman interrupted the converse nation to change that answer. do you believe it is difficult for this administration to estimate how many americans about their information collected or do you think it is awkward? >> i think it is difficult, but i think we are talking by each other at the medics name. under the business record highs, there is a series of questions that senator wyden and others have asked.

we have locked down that road. as you know, that is on the court said we are not doing that. we don't do that. a few records were done to check to see if technically could be done. that was the first set of issues on the business record. there is no location data that were using today. second, if an american travels overseas in its communications are collected, the chance siren that collection they may not know that's been collected, but it was an american person. but chances are if you collect a coming out that the location was that because that some units also collected. the issue would be how many of those have been collected. the answers were not looking for may have been collected because they talk to -- and i don't mean any of these people. >> even the point -- >> i want you to be careful that they are right behind you.

>> i am concerned, senator, that in that case we won't know that all who are the americans and who aren't in those issues for the same reason before. good numbers on those that would target overseas that we have. we can give you those numbers that fall into that. i think that is perhaps what we are really looking for. does that make sense? >> yes. mr. chairman, thank you for your indulgence. i also want to go down to the briefing. thank you, gentlemen. >> say hello to everybody for me. >> general, go back to the question asked not facetiously i assure you, when you said that you work with private industry unproven techniques and so

forth. let's go back to the snowdon case. as you know, i expressed grave concerns about how a 29-year-old subcontractor can come walking in and that your system of checks and balances was not good enough to stop them from walking out was huge amount of data. i see something mulliner, although a different type of data when our own state department and department of defense put huge numbers of highly classified and highly sensitive cable traffic from some of our embassies into one location, where private first class simply was able to go in and take it all out on a lady

icd. we know the enormous, enormous problems caused to our diplomacy and security a lot of americans and allies because of that. that situation. i never found anybody to say what we ever gained by putting all that material in one place. so now we go to the snowdon case. whether somebody thinks he's the hero or a villain is not so much the question said is that we can all agree that a lot of the material that has released because of it has been very damaging to the united states. it certainly has been damaging to our allies, our relationship to our allies.

i realized as you and others do that, by allies have said how terrible it is for doing this. makes me think of the scene in the movie casablanca, knowing they're doing very similar in. but, having said that, there were things that created great problems for us. so my question is first, can you say with confidence that you now have checks and balances that nsa to stop something like this from happening again? secondly, has anybody been disciplined at nsa for dropping the ball so badly? >> so first, chairman, on the checks and balances and the things we've done, that is the

41 different actions that i discussed for senator grassley better technology directories using. that doesn't play best industry and best practices that we have. as drastically improved that capability. >> these are subsequent -- >> this is also an snowdon thing. this gets into compartmentalizing and encrypting data to creating communities of interest. we do have three cases we are currently reviewing, working our way through but i don't want to prejudge given my position, that we will fully inform this committee of action that we've taken once that action is complete. >> first off, 41 steps are 35 or

whatever. i would hope that this makes it better. the obvious question comes up, why weren't these steps taken before? was it because there is a sense of confidence that we are the nsa, we will not make a mistake, or was it just -- >> actually chairman, the reason it happened is his job was to move data. he was the person who is to move the books from point a to point b. he was the share of point web server administrator. his job was to do what he did. therein lies part of the problem. we had one individual who lets a response ability to move that data of the betrayed that trust. we believe they would execute that duty faithfully in a manner that everybody had agreed to be done. >> to use your analogy, general,

let us say a company that sells millions of dollars worth of diamonds and i went to transfer from my warehouse in this state to my warehouse in this state. now, look, we've got this 29 of subcontractor here. here's a track that carries all the time is getting there safely. by the way, here's a map or said that her off not having two or three people to check on how it gets there? >> prior to this event, it was standard that one person would do one job i need a backup out. it's very difficult if not impossible to see that person replicates a copy of what he took come a little bit different

in the diamond case, but your point is well taken. you wouldn't give the guy the keys. we input eight rule that you would for that for these specific issues. i would also point out from the wikileaks, we are already implementing the issues that have been found through the interagency process. so we were implementing not. this specific order ability exploited was not found in wikileaks and there were some specific things that i prefer not to go into here. >> can i suggest there's people out there who want to find more at things? .. believe this,

are very honest and would not want to do anything to betray the country they serve. is that correct? >> absolutely, chairman. >> thank you. i talked about the collection programs. that's one thing. the other thing is do we really need to be collecting massive amounts of data on innocent americans just to keep us safe? just simply because you can do something, does it make sense to do it? we had a question entirely different before this committee once when i raised the question about roadblocks being set up by our border people in vermont and one of our interstate highways about 40 or 50 miles from the canadian border. they said with great enthusiasm that, well, over a period of "x"

amount of time, they found four or five illegal immigrants and collected "x" amount of marijuana and some cocaine. i said, wonderful. they spent a huge amount of money to set up this roadblock inconveniencing everybody. i said, look how much more you could collect if we set those roadblocks on every single bridge coming into washington, d.c. in the morning. a couple hundred thousand, 200,000 people come in from maryland. a number from virginia and west virginia. unless we have something cataclysmic like two inches of snow. then of course we have to close. vermont, anything under five inches of snow is called a dusting. i digress. but the fact is -- but not much. the fact is, if we set those kind of roadblocks, we'd collect hundreds of illegal immigrants.

we would collect huge amounts of illegal drugs. band. would we do it? no. i mean, the place would come to a screaming halt, and there would be those people who are totally innocent who might be screaming about it, including chairs of various oversight committees. but my point is, we've already established that the 215 section phone records program was uniquely valuable in one terrorism case. the nsa shut down a collection program related to internet metadata because it wasn't meeting operational expectations. and i was concerned learning nsa has done an assessment on the effectiveness of about collection under section 702

despite the fact the program mistakenly led to the collection of thousands of domestic e-mails, including their contents. we can do a huge amount, but then at some point you have to ask, what did we get out of it? so general, i'd ask you this. shouldn't the nsa assess the utility of its various collection methods in a systematic way, especially if they pose a risk of obtaining americans' communications? i mean, the question would be very simple if we were talking about going into everybody's home to look at their letters and their files and their -- those personal things. but somehow we're looking at it different by because it's out there electronically. >> senator, chairman, that was exactly why under the pen register trap and trade the e-mail metadata program when we

looked at that, we -- and i was the key nsa official to say this program does not meet the operational requirements for the amount that we're putting in, and we recommend to the dni and the white house that we stop that and inform congress. so we made that operational decision based on what we got for what we put into it to what it cost us. we're doing the same on the business records, fisa, the metadata program. here's the issue quite candidly -- >> you're doing that now on the prtt? >> we did the prtt back in 2011 when we stopped that program. that was based on my recommendation based on working with our people to look at what we're doing. >> did you find any terrorism plots? >> with the pen register trap and trade? i'd have to go back and get you the specifics on that. that'll take more than

wednesday, though. but i will get you that answer. >> okay. because i'm thinking when the deputy director testified, there was only one time where section 215 -- >> right, so now we're going to 215. the issue i have on 215 and why i am so concerned, i agree that what congress, the courts and the administration had given us here is extremely intrusive taken in its whole, but the way we've put the oversight in compliance and the regiment we have around it and the oversighted in congress ensure we're doing this right. the frequency that we look at that, less than 200 numbers now approved, and less than 300 for all of 2012, from my perspective, that shows that we're being judicious in how we do it. there is oversight by all three branches of the government and complete audit ability in every action that we do.

we can't -- we don't have a better way of doing this. that goes into that question of industry. so my question is, i don't know a better way to do it. and i'm being completely candid. i'm concerned with all that our country's going to face, that we will have failed the nation if an attack gets through. so you've asked us to do that. i can't think of a better way. i think this is where industry -- do they have a better way of doing it? we ought to put it on the table and argue that through all branches of the government. nobody has come up with a better way. and so that's my concern with the metadata program we have today. i can't think of a better way. it's like holding on to a hornet's nest. you know, we're getting stung. you've asked us to do this for the good of the nation, to defend the nation, to get the intelligence we need. nobody's come up with a better way. if we let this down, i think we'll have let the nation down. so that's why i'm concerned.

>> general, i realize the world changes, but i think back to my days as a young prosecutor, and without going into war stories, i remember when as a member of the executive board of the national da's association, we had a meeting with j. edgar hoover. four or five of us, we went across the spectrum politically. we were all chilled by what we heard from him, his disregard of the constitution, his willingness to do things -- he explained to us, there's no such thing as organized crime in america, even though of course there's a massive organized crime operation at that time. but we had to fear communists. he even suggested to us that "the new york times" in its editorial policy was very close to becoming a communist newspaper and he was about to investigate it as such.

i'm serious. i'm thinking what it would have been like if he had the power that you and the nsa have. and that's -- i had a friend who died in the towers, 9/11. i think about that all the time. i think of my wife who is a medical surgical nurse at arlington hospital going there, even though she'd retired, to volunteer to help with the wounded coming from the pentagon and told there were no wounded. you were either alive and walking or you were dead. there was nothing in between. these things sere in your mind. you don't want this to ever happen again. but i also think of the j. edgar hoover type thing. i think as an american, it's very easy to go to another country and complain to them about their police state. i'm not suggesting that's what you are, but their ability to go and listen in on everybody,

search everybody. we give up a lot of our privacy in this country. and frankly, i worry about giving up too much. and can we be totally secure? of course we cannot. you can't be totally secure going out to dinner in the evening from some random shooter, who isn't even aiming for you. so, i mean, i look at the administration declassifying a number of fisa court opinions. they get credit for doing that, but there's been no release of any fisa court opinion from the 2006 time period contending legal and constitutional analysis of the section 215 phone records program. is that because it didn't exist or hasn't been declassified? and i ask this question -- and

i'll let mr. cole give me an answer to that at some appropriate point, but i really feel that our oversight has not been adequate or that so much of it is done secretly that it's too easy to say, if you knew what we knew, you wouldn't ask us questions. and i worry as technology gets greater and greater the temptation, whether it's this administration, the next administration, or the administration after that, for people to misuse it. so i know i've been critical of these things. i hope none of you take it personally. but as a vermonter, i'm very concerned about my privacy and everybody els. did you want to add anything mr. cole, mr. litt, or general? >> mr. chairman, you know, i think that we are all concerned to make sure that we get this

balance right and that an important part of that balance is transparency to the american public, keeping their trust in what we're doing, making sure that while doing that we don't compromise our abilities to be able to use classified techniques that will help keep them safe. but that's -- there's a tension between those two. and there always has been. and finding that right balance is always something that is difficult, but it is our job. and it is our collective job in all three branches of government, including with oversight from the united states congress as a very important part of that. so i think the path that we are on now is very much the one you're describing of trying to make sure that we find that line and find that balance of giving the information that we can give providing the transparency while maintaining the operational integrity of what we're doing. we shouldn't be saying to you, particularly from an oversight function, if you only knew what we knew, you would say we're

doing fine. we should be in a position to be able to tell you what we're doing. >> mr. chairman, if i can just add a couple points. the first is, as i'm sure you know, there's nobody in the intelligence community today who operates on the assumption that you ascribed to j. edgar hoover before that i don't care what the constitution says. everybody is singularly in focus on complying with the constitution and the law. as you know, in all the material that's come out, there's been no suggestion of any willful abuse or violation of privacy of people. the compliance violations that have occurred have been technical. they've been unintentional. nobody's been out there attempting to illegally spy on americans or anything else. but the other point i want to make is sort of a more philosophical one. because the point you raise about worrying about the next person is of course something that was a concern all the way back to the framers of the constitution, which is why they set up the constitution with

checks and balances to try to ensure that the innate fen den si of human beings with power to seek to abuse that power is checked. that's what we've tried to accomplish within the intelligence community with the degree of oversight that we have. the number of people who are looking over other people's shoulders, the number of reports that have to be done, the technological controls we have in place. as general alexander said earlier, if there are ways we can do that better, we're open to that. we'd like to ensure that there's oversight that is sufficient to persuade the american people that we are doing the right thing on their behalf. but we do think it's important that the -- in considering what to do we don't throw out that the baby of national security with the bath water of oversight. >> and if there are better ways of doing things, if there's any silver lining in the snowden matter, you are taking, as i

understand from general alexander's testimony, you are taking the steps to make sure that colossal mistake wouldn't happen again. >> we're going to do our best. >> general? >> chairman -- >> and after you speak, general, i'm going to turn the gavel over to senator whitehouse. he's a nicer person. >> chairman, first, two things. as you correctly stated, there was one unique case under 215 where the metadata helped. there were seven others where it contributed and four where it didn't find anything of value and we were able to tell the fbi that. now, that last part of value, i want to point that out. this summer there was a big issue on terrorism that we all went through. this program helped us understand was that focused on the united states or elsewhere. we used that program to determine none of those leads were coming into this country and were able to focus our efforts elsewhere, which really

helped both the intelligence community and the fbi in that case. the second part, you know, i've been in this job for a little over eight years. and my experience from dealing with the people that we have, dealing with congress, the courts, and the administration on this is our folks take the constitution to heart. we have to -- we see this as two roles. defend the nation and protect our civil liberties and privacy. everybody at nsa, including myself, takes an oath to that constitution that we'll support and defend the constitution. and you know the rest of that. and i would tell you that the oversight we have, especially by the courts, ensures that what happened that you brought up will not happen here. from my perspective, we have great oversight in this program. and at times, i complain that the oversight was so robust that it was crippling, but now you can see that everything that we've done, all the things that have come out, were either self-reported or brought out.

they weren't revealed by snowden. we had already reported those incidents. i think you can see that we're acting well and faithfully to discharge those duties. just to correct one thing to add to what bob said. there have been no willful or intentional violations under the 215 or 702. as you do know, there were 12 under executive order 12333. in both cases, all the violations we know about we've self-reported. some of those we knew would be significant. we brought them up to the white house, to the dni, to the department of justice, to the courts and to congress. we made a mistake. these were not intentional. they were significant. and you've read the court things and you read some of those. but from my perspective, i think we should take great pride in the fact this agency in every case reports on itself, tells you what it did wrong, and does everything we can to correct it.

>> thank you. senator, why don't you take over here. i apologize to the next panel that i'm going to -- i may not be able to get back. i'm going to try to. you want to take the seat here? >> sure. i'll do that when the panels shift. but let me just take a little bit of time myself right now with this panel before they're excused. first of all, we are at a time where we have entered a new technological era. the era of big data. and i'll loosely and unprofessionally define big data as the ability to have enormous amounts of data that don't get looked at and figure out once they're aggregated how to search for things in that big heap of data. that raises questions about whether the aggregation is a search or not a search until a

human being actually asks a question and the information gets to another human mind. some of these are pretty difficult questions we have to work our way through. i think the attention the committee is paying to this is a very sensible attention. but our national intelligence establishment is not the only group that is playing in this big data area. we all know that google and other private sector providers are very, very actively in big data, data mining and doing things like that. what can you tell me about what other governments are doing without ses if iing names and releasing any security information. i take it that other foreign sovereigns are doing very aggressive things in this space to try to pull as much information as they can as well out of the cloud and out of the capacities of big data. who'd like to take that?

general? >> senator, i have some experience in that. my opinion, none of them have the oversight by all three branches like we do. either their parliaments, congress, courts and their administration. >> understood. my point is that they're all out there doing it. >> they do. well, not all. >> well, the ones who have capability. the most powerful ones all do it. >> that's right. >> and if we were to pass a law that prevented our intelligence and defense establishment from operating in that big data atmosphere, we would be essentially unilaterally disarming in an arena in which other governments are very active. is that true? >> that's true. in fact, i think some have likened it to -- because we have a powerful intel community or powerful navy, we would tell our submarines to surface in those areas where people -- their subs aren't as good.

>> so they're -- and the actual collection of data in the sense that it is brought to the awareness of a human mind somewhere has to be overseen very scrupulously. as i understand it, this operation is overseen by multiple inspectors general, multiple general councils, multiple federal executive agencies, nsa connects in ways that provide varying levels of visibility, but in most cases complete visibility to our department of defense, to the fbi, to the department of justice, jim, to the odni, the office of -- the director of national intelligence, to the president, to the national security council. so there's considerable

attention that is being dedicated to this. we have a court that is dedicated to this that reports to the supreme court. we have this legislative committee, the senate intelligence committee and the house committees. so it's hard for me to think of whatever we might do to add to the level of oversight. i think we may make it more efficient and effective, but i don't want anybody to leave this hearing thinking we just kind of leave this question to the nsa. we have built a system in which every branch of government and within those branches of government, in many cases multiple different agencies and in some cases within those agencies and some independent sectors all compete to have a look and make sure the right things are being done. so i'll let you all go. i appreciate what you're doing. i understand that we need to get

this right. but i think it would be a mistake to yunilaterally walk away from the realm of big data to protect our national security when we're perfectly comfortable with private companies doing that to make money and to find out more about us so they can market to us better and when foreign governments are energetically penetrating this space in order to accomplish similar results. and i think nobody should leave this hearing not aware that the layers of oversight and checking and double checking and triple checking that are done here are very, very rigorous and considerable. i know you have to live with that all the time. if you'd like to make any closing comment to that, you can do that. otherwise, i'll let you go. >> i think you summarized it very well, senator. >> all right. we'll leave with that. i appreciate very much you all being here. thank you for your service to our country. >> thank you, senator. >> we'll take a minute and call up the next panel.

[inaudible conversations] [inaudible conversations] >> it was hard to get bob litt out of here, professor. he loves it so much being in all right.s. let me ask let me ask the panel to stand to be sworn. do you affirm that the testimony you're about to give to this committee will be the truth, the whole truth, and nothing but the truth so help you god? thank you very much. please be seated. i am delighted to welcome our second panel on this important issue, and why don't i just go

right across the table and ask each of you to make your opening statements and we'll do collective questions at the end. we may be rejoined by a number of my colleagues. this is the time that the administration briefing on iran is taking place in the classified area. so obviously that's of interest. we'll start with ed black, who has been the president and ceo of the computer and communications industry association since 1995. he previously served as chairman of the state department's advisory commit' on international communications and information policy, and he worked as chief of staff and legislative director for two members of congress. mr. black, welcome. please proceed. >> thank you, senator whiteho e whitehouse -- for the opportunity to be here. thank you, senator whitehouse. this is an important subject.

i want to start out by just pointing out that 16 years ago the white house charted a course for a vibrant internet economy into perceptive magazine report. the first u.s. government policy statement addressing the needs of internet commerce. that policy statement correctly identified user trust as the foundation of internet commerce. it noted, quote, if internet users do not have confidence their communications and data are safe from unauthorized access or modification, they will be unlikely to use the internet on a routine basis for commerce. that may sound rudimentary today, but we should not take for granted decades of progress in kree yagt security and fostering user trust. and we should not discount out easily that foundation can be damaged. the broad nsa surveillance regime and the way it has been received internationally has harmed u.s. companies, u.s. competitiveness, and the internet itself. the u.s. government must be

proactive in addressing these concerns. the status quo is no longer an option. if we do not act, we will put at risk our economic security and undercut our diplomatic ability to influence the future of the internet. therefore, mr. chairman, c, i supports the usa freedom act and look forward to working with the commit' and staff on this important piece of legislation. a healthy global internet is a source of american competitive advantage. the u.s. itc documented a growing digital trade surplus. our global competitiveness is not just good for commerce. it is an essential component of our long-term national security. the internet doesn't only benefit the u.s., however. the open internet provides great global commercial benefits. the internet economy in g-20 countries is expected to reach $4.2 trillion by 2016. 21% of economic growth in mature economies over the past five

years is attributed to the internet. traditional industries are the beneficiary of 75% of the economic value derived from the internet. thus, we should not underestimate the internet's role in global economic development, which in turn has its own security benefits for the united states and the rest of the world. the nsa's practices clearly impact the business of u.s. internet companies. so much of online commerce today is fundamentally based on trust. if users are going to turn over very sensitive, personal, and confidential information to accompany e-mail and other cloud services, they need to believe the company will act as a responsible steward of their data. although, traditional debate on utility of broad surveillance has focused on hard power arguments, one must not overlook the effect on soft power. it is important to recognize the dramatic effect these revelations have had on our international and diplomatic authority.

particularly in regard to the future of internet governance. last year's conference showed us that through this deep international division of over whether to subordinate the open internet to world governments, including repressive regimes, the u.s. needs to be a beacon for freedom and openness in this battle. given these risks, we propose enhanced transparency and procedural reform, clearer protection for americans, and baseline protections for international users. with regard to transparency and procedural reform, we think all governments should share with citizens meaningful information about their surveillance laws, their legal interpretations, and judicial procedures that govern the exercise of this powerful authority. of course, the u.s. cannot demand this from others unless it leads by example. furthermore, companies should be permitted to disclose publicly to their users the precise volumes of requests from

governments. businesses should not only be prermted to release transparency reports but encouraged to do so. we categorically reject the notion that open government will cause undue damage to security. transparency and criminal surveillance have been the norm for years and have not appeared to materially affected law enforcement. in order to present a robust check on the government, the fisc must also evolve to include a well-resourced advocate to provide an alternative view point, particularly in situations involving novel questions of law. second, focusing on protection for americans. federal laws addressing the circumstances in which the government may collect american data for national security purposes are badly in need of reform. collection of metadata is one area that is most obvious as it reveals a great deal of sensitive, private information. furthermore, important first amendment rights of association are implicated by the government assembling its own version of

your social network and their own analysis. the usa freedom act addresses this problem by explicitly prohibiting this type of collection, both on the internet and on telephone net works. that's one of the reasons we are supporting it. third and finally, protections for foreigners. a difficult subject to deal with but despite the global interconnected nature of the internet, the u.s. national security policy continues to presume u.s. citizens deserve protection from unwanted surveillance while others do not. if foreigners lack baseline privacy assurances, foreign competitors will supplant u.s. leadership in internet innovation and digital commerce. thus, undermining strategic economic and other security interests. this is especially true going forward as foreign markets are increasingly important. thank you very much for the opportunity to testify. look forward to your questions. >> thank you very much, mr. black. our next witness is julian sanchez, who is currently a

research fellow at the cato institute, focusing on the intersection of technology, prooif circumstances and civil liberties with a focus on national security and surveillance issues. he previously served as the washington editor for a technology news site and has written for a wide array of publications. mr. sanchez, welcome. >> thank you, senator whitehouse. it's a privilege to address this committee. i want to begin my suggestion to step back from the details of the disclosures in recent months, we find a disturbing pattern across multiple programs and authorities focusing in particular on the metadata program, the now defunct internet metadata program and upstream collection under section 702 of the fisa amendments act. in each of these cases what we see is extraordinary but nevertheless limited authorities were secretly interpreted in

ways that permitted far more extensive collection than certainly members of the general public and even i think many legislators believed at the time of passage had been authorized. this was done in part because the fisa court, which was established on the premise that it would be authorizing and finding probable cause in cases of specific and traditional targeted surveillance, instead found itself in the position of addressing broad programs of surveillance, often involving novel, legal, or technological issues. it's not clear that body was well established to consider. in the metadata cases, these interpretations took to form of an unprecedented reading of relevance that held entire databases containing information about millions of admittedly innocent americans to be relevant on the grounds that a fishing expedition through those records might ultimately turn up evidence that would not otherwise be detected in the

absence of some specific grounds for suspicion. that is probably true, but it is of course true of any phishing expediti expedition. there is no real limiting principle in that argument for any type of records. i was particularly disturbed to hear earlier, mr. litt refuse to reassure us that the scope of the records obtainable under section 215 does not exclude the contents of digital communications or cloud stored documents. it's also particularly troubling to see this applied in the case of the internet metadata program, because in that case, the short-sighted holding of smith versus maryland was applied as though it referred to metadata generally, which is certainly not a term we find in had the 1975 decision. when in this case, it involved e ma e-mail metadata that's never processed by the internet

backbone provider from whom it was presumably obtained. there's an additional constitutional question in that case. in the case of 702, we know the supreme court relied on the recent ruling in amnesty v. clapper on representations that only communications to or from specific overseas targets were being intercepted. we now learned, of course, that also communications referring to overseas targets would be intercepted and in many cases for technical reasons, a single e-mail meeting selection criteria would lead to the entire inbox of the commune cant being obtained, including again potentially entirely domestic e-mails on what the court believed could be a scale of many tens of thousands per year under that one collection program. in each case, additionally, we learned that for months or years the actual technical details of how these programs operated were misrepresented to the fisa court, which was of course therefore not able to

effectively conduct oversight and in each case, again, elaborate safeguards and restrictions imposed by the fisa court as a condition of authorizing those programs were effectively neglected because of the vast scale and complexity of those programs. additionally in many cases, we found that the claims of efficacy made at the time don't appear to have held up well over scrutiny from many dozens of foiled terror plots we've gotten down in the case of the metadata case to one instance involving funding and material support where it appears to have played some uniquely valuable role. given the limitations imposed by the fisc, it's not clear why more traditional targeted records -- orders could not have been used without incidentally sweeping in millions of innocent persons' records. we are assured that the problems detected with these programs have not been willful or intentional. this is not especially comforting to me for several reasons. the first is that if we look to

history, we find that in general, abuses of intelligence powers were committed by people who were well aware of the oversight mechanisms in place who often took elaborate steps to gain those restrictions. in the cases of bradley manning and edward snowden, steps were taken to evade oversight mechanisms. we know that certainly happened many times in the past. it's why abuses went undetected for so long. additionally, the scale of collection itself makes abuse more difficult to detect and less likely to be detected when it does occur. think of the case of illegal wiretaps it of the southern christian leadership conferences' offices. that at least was halted by an attorney general who found the suspicious fact the wiretap existed and there was record of it. when you're doing collection on this scale, the mere existence of communications or records about an innocent party are not themselves that kind of essential indicator. finally and most generally, i would just encourage the

committee to think architectu l architecturally. we should not authorize extraordinary architectures of surveillance on the basis that we now have great confidence in the probity of the persons controlling the levers. james otis, whose condemnation of the writ of assistance was part of the inspiration for the fourth amendment, condemned those writs saying it is from their mere existence that every household or in the province becomes less secure. and there is a sense in which while they may serve some role in protecting us against foreign attacks, we are less secure when the government maintains vast databases on americans without particularized suspicion. i thank you and look forward to your questions. >> thank you, mr. sanchez. our final witness is professor kerry cordero, whose bio i have just mislayed, but i'm sure you can get me another one very

quickly. thank you. she is an adjunct professor of law and the director of national security studies at the georgetown university law school. she's previously held several national security related positions with the department of justice and the office of director of national intelligence. she's also testified before this committee before. welcome back, professor. please proceed. >> mr. chairman, thanks very much. thanks for the opportunity to return to the committee. since the october hearing, the conversation, i would suggest, has shifted somewhat from where it first was. first, i would suggest that the conversation has evolved from objections to specific programs to a discussion of our understanding of intolerance for foreign intelligence surveillance activities more broadly. second, the legislative proposals are coming closer to scaling back national security legal authorities in a way that might take the country back to pre-9/11 standards. and third, the path forward on authorized public disclosure in a way that's responsive to the concerns of the previous sector remains a worthy goal but still

a significant challenge. with respect to the metadata collection under the business records provision of fisa, the power of metadata. basically, this argument is that metadata is a powerful tool, can reveal an awful lot about us and there should be limits on the collection and use of it. i don't disagree with the general proposition, but the problem with the argument made on 215 is that the worrisome assemblage of americans' metadata bears no relation to the existing 215 program congress is currently considers. it does collect an enormous volume of americans' telephone detail records, but the collected information does not appear to include content of phone calls, names of subscribe subscribers, payment information or location information. the vast majority of it is never viewed by human eyes and the records are handled under court order rules. so of the arguments that congress should outlaw collection altogether for better or for worse, every day

americansout-law bulk communication all together, we all, regular people, government leaders, as well as those who are national security threats, use the internet, computers and smart phones to communicate. and so just as everyday citizens should not with expected to con ve convert to the postal service or land lines. it is just as unrealistic to expect citizens to unplug as it is to expect or require the nsa or the fbi to use 20th century collection, analytic or investigative techniques to protect the nation from 21st century threats. a few observations on s-1599, the usa freedom act that has been submitted. sections 101 and 201 would change the legal standards to implement devices by applying connection to an agent of a

foreign power. the likely intended effect of these provisions is to eliminate the 215 bulk telephone program. it would have far more existing consequences. the standardings are currently aligned on the national security side with investigative authorities in the criminal context which operate on a relevant standard. by raising the standard, these zexzs would render these techniques nearly useless which is when they are precisely most useful. these changes could return us to the days prior to 9/11. similarly, section 501 would amend the national security letters by requiring the requested record to also have a connection to an agent of a foreign power. this would have a similar effect in sterms of severely limiting

the fbi's ability to kublgt investigation. 301 would appear to inhibit the intelligence community from section 702 of fisa to search for u.s. personifications. the nsa can query the communications already acquired under 702. the proposed legislation would only take place with a criminal warrant prior to judicial approval based on probable cause. and in my written statement, i give an example of how this could po tenl shlly play out in practice. a few words just on a particular

proposal to enhance transparency that's in the bill. in my view, there's substantial value with the executive branch of the private sector to rebuild confidence between them. but a particularly problematic proposal is section 502. i believe that this is not only targets but persons of communications who are incidentally collected. if that's the sbent, it would actual actually grade the sbel juns community personnel, look at, grade, keep records aport and record on information for records that they would otherwise be in pursuit of discovering, analyzing and reporting only foreign

intelligence information. so, again, thank you for the opportunity to be hear today and i look forward to your questions. >> thank you very much. let me start with a question for mr. black. there is legitimate concern that the knowledge of our national security activities cast a shadow on the ability of american companies to compete internationally. that was the basis of your testimony. do you believe that foreign customers, if they sign up for a service with waweah, that the chinese government is not looking into this data? or the russian government, if they sign up, in areas under its jurisdiction, or the french government, for that matter? do you think that the yiegts government is the only government that's frying to take

advantage of big government? >> ill do think the reality is that governments in general are inclined to want more and more information. too much. it's what we address in our testimony is, in fact, all government should be asked to undertake disclosure in terms of limits. the difficulty is that the united states is in a difficult position in credibility when we are seen to have an extremely pervasive, effect of, widespread and some would say not effectively limited process. by no means. >> the russians are more effectively limited? >> no, i'm not saying that at all. >> than the united states is? >> i'm not doing a comparison. i'm simply saying i don't think most the low, the citizens and the customers of the world think that the united states laws,

first of all i believe we do have some checks and balances that have some effectiveness area don't get me wrong. >> is of more than any other country's checks and balances engaged in this kind of behavior? >> not all of the countries and i certainly hope we have better ones. >> is there a country that has a better one? >> i think there are countries that don't do as much collection as we do. >> i can name some tiny countries that barely run a phone system but in terms of our major competitors in terms of the major economic and political actors on the world stage, the ones we are all thinking of. >> i know what you're trying to say. what kind of future do we want? do we want in internet that provides tremendous economic growth, tremendous empowerment, tremendous diplomatic and lyrical --

billions of people round the world and where people can of association with other people without being spied on by their government or our government or any other government? is that the desirable outcome and if so how do we take steps to move in that direction or do we accept the reality that all governments are going to do a maximum collection and go in the big brother direction and we are just in an arms race to do that. that's not a feature i look forward to. it's difficult to want to restrain a government's desire for more information especially i think our government will beam well motivated people prepared by national security who really do believe in the motivation of what they're doing but they are zealous and effective and they are in fact in a position where they are able to gather a great deal of information. >> so you think our government security services are more dangerous to civil liberties than the governmental services

of china and russia? >> absolutely. no doubt about it. >> you agree that our government oversight of our national security establishment is far more interested in protecting civil liberties for countries like china and russia? >> i can't compare to other people and i don't know the details. they have a presumption about how ineffective and in control they are. i would hope that our constitution we would have a really affect system. do i think we have with the to the best intent and good faith of our constitution with the legal structures we have created that allow surveillance? i don't think we have lived up to the principles. the core principles of the first amendment and the fourth amendment as faithfully as we could. regarding are we better than totalitarian regimes? of course. that's not a question that i think is fair. >> you take a different view than the courts that overlooks this that have not found

violations in any of this. >> i think courts have the historical position -- business records for example. >> there is no present decision by any court that suggests there has -- this is operated in violation of the fourth amendment? it would take a new decision to make that conclusion but it not not -- has not been rendered by any court? is that correct? >> i have great counsel the works for me. i would suggest the various efforts to get those questions raised. >> you are the one that said this was being operated by the fourth amendment and i'm asking if you could cite this case that supports that proposition? >> you know is there a specific one? i believe the fisa court haps done practices that violate the orders. a.

>> professor cordero, for how long has incidental collection of communications with people who are not the subject of the warrant and a fact of life in long enforcement? >> both on the criminal side and the national security side there are is going to be incidental collections. the national security side is handled through minimization procedures for u.s. communication. the minimization procedures on any of the fisa procedures are approved by the court including on the 702 collection. >> for as long as there has been any authorized conception of communications incidental collection has always been a part of that necessarily? i have gone over my time and

senator blumenthal is here. let me yield to the senator from connecticut. >> thank you mr. chairman. thank you all for being here. let me focus on fisa court reforms . >> that's right. >> i wonder if you could tell me your position on some kind of adversarial process and other reforms in the fisa court that might be feasible. >> i would step back from that for a moment and just say that in cases where you have something that is an authority that is clearly envisioned a something that is relatively targeted acquisition of records with access to terror or espionage suspects the appropriate move at that point if it's believe that some kind of there is more programmatic

use of that authority is to turn to congress and not leave that decision in the hands of the fisa court. >> in other words the fisa court should not be making law. >> i think anyone conceived as the authority would be better have congressional authorization. in closer cases while we can see from you what i think benefits the courts proceeding to have some kind of adversary or to raise opposing arguments but also i think in particular to have technical expertise i alluded briefly earlier to a kind of tricky constitutional wrangle with respect to these authorities to intercept method data where you don't just have as the phonecall that number and the content but layers of metadata and content.

>> do you think that we ought to have it constitutional advocate? >> it would be extraordinarily helpful but a technical in azra capacity of some kind with a useful because sometimes i think the most difficult questions turn not just on the details of large technology that the way they intersect in surprising ways. >> thank you and professor cordero i gather you feel there is no need for a constitutional advocate or some kind of adversarial process but you would be willing to support some kind of amicus cure i process. >> thank you senator. since the october hearing this conversation has evolved and so there are different proposals. in my view as we discussed at the prior hearing, based on the the -- that take place between the department of justice and the intelligence community and the

cord in my view i think the current process is the nation that the court has independent legal advisers and independent article iii judges to make judgments on their own. in my view there doesn't need to be an adversarial process and i think the current process is sufficient however between the competing legislative proposals between establishing an offer versus the proposal to enable the court to call upon an amicus if the court leaves it needs that i believe the second option would be the better of the two options. and that's because you are loath to create a bureaucracy or what is a recent? >> several reasons. one is the fisa process is heavily bureaucratic and heavily lawyered. there are multiple offices and legal offices in different layers of management that are involved in reviewing fisa matter so it already is

bureaucracy heavy and i think the way that the office of special advocate is described in these legislative proposals it was simply add to that process. i also am concerned that over time there has been a relationship of trust and a very constructive relationship he between the executive branch and the fisa court and i actually worried that an office of special advocate would in some way harm that sort of established relationship of trust by being in the middle. with respect to the proposals to add an amicus, again. >> isn't the problem this relationship of trust has actually undermined trust in the american public and really threatens to completely eviscerate confidence and a system that operates in secret and make secret law and in the

end the relationship of trust may undermine the whole system. relationship of trust would undermine the whole system? it will have to operate in secret, too. so just as the creation of the fisa court in 1978 and the creation of the office that worked in the justice department that was an independent, not political office at the time was created to be this independent participant in the process. now, people don't put -- in terms of the meeds future, i don't actually think in the long term, because it will operate in secret.

>> it will operate in secret that could provide for some greater measure of transparency. it affects americans around the world or at least in our country. but anyway, my time is expired and thank you to the witnesses for being here today. thank you, senate tosh. i'm also grateful to the witnesses to help conform about this committee. we go about our decisions. i welcome them. and we have two weeks? we will hold the record of this hearing open for wasn't additional week for any further materials anybody wishes to submit. and with that, we will adjourn the hearing.

[inaudible conversations] [inaudible conversations] [inaudible conversations]

[inaudible conversations] [inaudible conversations] >> this is a train depot. the hustle and bustle of all the activities here in the campaign. you had tables and desks and phones going off and letters coming in and out of the area. ms. roosevelt was here helping

run a campaign from the small business. this is where rosalyn carter helped organize the peanut brigade. the pain it brigade was an offshoot of the high neighborhood technique used during his run for governor. it was basically a way to get the word out about jimmy carter using volunteers going door-to-door shaking hands giving out literature and spreading the word. it was a method so effective that helped him get elected to the presidency. a a

[inaudible conversations] [inaudible conversations] >> please take your seats and i would ask you all to come to the dais. [inaudible conversations] >> the committee will come to order. the oversight committee exists to secure fundamental principles. first americans have a right to know that the money washington takes from them as well spent

and second americans deserve an efficient effective government that works for them. our duty on the oversight and government reform committee is to protect these rights. our solemn responsibility is to hold government cut the taxpayers. taxpayers have a right to know that they can afford. it's our job to work tirelessly in partnership as watchdogs to deliver the facts to the american people and bring genuine reform to the federal bureaucracy. today as we view the continued rollout of the affordable care at, we deal with the administration's selling tech meet, the administration helped lots of the american people with a simple, clear promise. if you like your plan you can keep your plan. if you like your doctor you can keep your doctor. after millions of americans receive notices that their plans were being canceled the president was forced to

acknowledge just how misleading he had been. the president apologized for his his -- the president apologized for people who were misled by his claim and found themselves in difficult circumstances. a the quote is i am sorry that they are finding themselves in this situation based on assurances they got for me. we have got to work hard to make sure that they know we hear them and we are going to do everything we can to deal with folks who find themselves in tough positions as a consequence of this. end quote. now there is mounting evidence

that the president's second promise is also untrue. americans cannot keep the plan they like. they cannot keep the doctor they like and it's increasingly clear that more needs to be done to keep the president's assurance that we will do for folks everything we can. americans deserve to hear the truth. the administration has been stringing them along with promises that every day are being broken. many of these promises were predictable. many of these occurrences cannot be reversed but to the extent that we can bring the american of the truth of what is happening and reverse in any case the candle will bring of to care we must do it very and initially, in minnesota for example the mayo clinic was only going to be open to people virtually within watching distance. now it is open because of the

backlash to at least people in minnesota. as the california and the ability to get reimbursed on a california exchange for the mayo clinic does not exist and this is true throughout the country. just last month thousands of doctors were terminated from medicare advantage plan networks including 2250 in connecticut alone. thousands of seniors were facing a loss of decisions they relied on interested. in florida there were areas of southwest florida in which no oncologist exists for patients who currently have life-threatening cancer. many americans who were shopping for plants on the upon the care or for the care exchanges have found they offer extremely limited provider networks that exclude their preferred physicians, physicians who they have the relationships with.

many parents are finding out that their child, their child's pediatrician is no longer covered by their insurance plan. we know no exchange plans exclude our nation's best hospitals, hospitals like seattle's sloan-kettering the m.d. anderson cancer city -- center and the like. unfortunately millions of americans are likely to find out early next year that their new health insurance plan doesn't cover the doctors they most value and trust. such limited plans demand that we asked the question, what quality of care will obamacare actually provide? the access shock has prompted many americans to ask didn't the president promised me that i could keep my doctor. too?

on november 19 the white house press secretary explained that the president meant by that, you can keep your doctor was that if you want coverage from your doctor you can look and see if they are on your plan. excuse me. see if there is a plan in which your doctor or dissipates. clearly in the case of federal exchanges it is unlikely that the best and perhaps the most expensive physicians will ever be available. just this past sunday, a key architect of the law explained if you like your doctor you can pay more for that doctor. before the affordable care act was passed, you have that right and you have the right to pick a plan that suited you and paid for that doctor area and in

essence, the public is now being told if you like your doctor then you can try to find a plan that carries them and then you can pay more for that plan. you are already paying more for plans that include items you don't want, items you didn't need and likely will not need. this is so unacceptable to the american people that there is no question both republic polls and if you will even by democrats no longer touting the benefits of the affordable care act with the improvement of health care there is no doubt at all that if you pass this bill again you couldn't pass it in this congress. even if you have not read it and you knew what was going to happen, you would not vote for it. when our government including the congress passed this law we have a solemn duty to honestly

informed the american people of what is going to happen. in this case clearly the american people were misled. this duty is more -- no more solemn when it affects america's relationship with their physicians. that is a sacred trust. it is a most important thing in life or death situations for many americans and a trust that has been broken. today we will hear testimony from experts and think-tanks and institutions that will be on our second panel. we have concluded that the first panel should include three doctors who have actual life experience practicing with patience and realizing what can or cannot be done, what should or should not be done and direct experience of what is have a thing under the affordable care act not just in their practices but businesses in patients who are human beings in need of their care.

today the testimony will describe in the most candid and personal terms exactly how the affordable care act or obamacare has affected these patients and their practices. i am sure these doctors will agree that there were problems in the health care system that needed to be reformed. the fact is, america had an imperfect system developed with the number of public and private forms of money, tremendous federal taxes, insurance companies that were often difficult to work and the like. but a broken system that is repaired by crashing it into a wall is not a infected fix system and with that i would recognize as gentleman from maryland for his opening statement. >> thank you very much misters chairman and thank you for calling this hearing. this week i have a tremendous honor to the go to south africa

as part of our nation's delegation to honor the life of the late president nelson mandela. it was an inspirational trip, a life-altering trip. i have the opportunity to reflect on the imaging -- amazing changes of one individual working with determination over a lifetime can bring to millions of others. there will always be forces aligned against progress, against equality and against a sick human dignity but nelson mandela's life reminds us that our mission on life is in these destructive forces on always pursued the betterment of our federal man -- fellow man. the travel back yesterday on the 20 hour flight i thought about today's hearing and i was amazed at the significance of what our nation accomplished with the

affordable care act. before we pass this landmark law millions of our own citizens cannot obtain health insurance because they had pre-existing conditions. we allowed insurance companies to discriminate against them. they charged exorbitant premiums that were prohibitively expensive. they attached riders for these illnesses and in many cases they did not access health insurance altogether. think about this. before we pass the affordable care act, there were about 50 million people in the united states without health insurance, 50 million. that's almost exactly the population of the entire country of south africa. before the affordable care act we have in our entire nation within a nation and a people without coverage.

no insurance for doctors visits, cancer treatments, prescription drugs, hospital care. that was a shameful and moral legacy or a nation is ours. three years ago after decades of inaction congress and the president has the affordable care act. we finally banned insurance companies from discriminating against people with pre-existing conditions. we prohibited insurance companies from charging higher prices for women than for men. we eliminated junk plans that collected premiums but then did not pay hospital bills when the people got sick. the result today is that tens of millions of people now have something they did not have before we passed this law. the opportunity and the ability to afford and obtain quality health insurance that will

safeguard their financial security and recognize that dignity as human beings. congress understood when we pass the affordable care act that these changes would tend to increase premiums for a subset of people who already have insurance under the old discriminatory rules. so we put in places several measures including subsidies to help people buy insurance in a requirement that insurance companies spend at least 80% of premiums on health care services or offer rebates for insurance and use proposals by insurance companies to raise their rates by more than 10% in a year. the good news is that the annual premium rates have now been submitted by insurance companies and they have come in much lower than expected. in september the department of health and human services issued a report explaining premium

rates now being offered to the will care at our 16% lower than projected. a they stunned the premium data the center for american progress issued a report in october showing that these lower premiums will save the federal government 190 million dollars over the next 10 years meaning 700,000 additional people will be able to obtain coverage. more broadly the centers for medicare and medicaid services issued a report saying national health spending has slowed to more than 3.9% in a last three years which is the lowest rate since the government began keeping statistics in 1960. i understand that we will consider two studies today that premiums are increasing for people in the exchanges. both reports have very

significant flaws. first the report completely disregards the subsidies provided by the affordable care act, completely. as a result it and accurately inflates the cost of coverage for consumers across the country. second although the institute study is better because it includes subsidies, it still compares him that quote apples to avocados end quote as one commenter explained. it compares five plants under the affordable care act with the five plants offered before the law passed. the obvious problem is that the old chief plans offered vastly inferior coverage. to me the most significant problem with comparing premiums before and after the affordable care act is that it disregards the 50 million people who could not get insurance. if someone cannot afford a

policy that covers a pre-existing condition the price of that prohibitively expensive plan is not considered. let me close by offering a final thought harriet one of the things that nelson mandela is known for is his push for reconciliation. i respect the viewpoints of my colleagues on this committee as well as those of our witnesses and i understand the affordable care act is not perfect. i have said that many times. in that spirit i hope that we can work together in a bipartisan way to improve the affordable care act rather than continuing to fight over its very existence. one of the things that the late resident mandela said and i have thought about this because it's so true. he says it always seems impossible until it is done. it always seems impossible until it is done. we can no longer disregard the experiences of 50 million members of our population.

we can no longer ignore the paie fundamental inequality of this nation within a nation. and without mr. chairman i yield that. >> i think the gentleman. members may have seven days to submit opening statements and other extraneous -- there patricia mclaughlin m.d. is an ophthalmologist in a private practice in new york city. dr. eric novack m.d. is an orthopedic surgeon with the ortho arizona practice in phoenix, arizona and i would like to recognize the gentleman from georgia mr. woodall to introduce his constituents dr. amos. >> thank you mr. chairman. i appreciate that courtesy. we do have the great pleasure of having dr. jeffrey english with us. he has been a tremendous

resource to the georgia delegation. i want to tell you a little bit about his background. he has a bachelor of arts in psychology and -- from boston college in 1991 and graduated from dartmouth medical school in 1995. he served relatively close by as chief resident at the university of maryland to the great pleasure of all georgians has chosen to call at home where he is the director of clinical research at the multiple sclerosis center in atlanta and president of the georgia chapter 4 patient care. it is with great pleasure that i will come dr. english and thank you so much for what you do not just for us on the committee but for everyone back home. >> pursuant to committee rules i would ask all three of our witnesses to rise to 2 feet of. please raise your right hands. do you solemnly swear or from

the testimony you're about to give up the truth, the whole truth and nothing but the truth? please be seated. let the record reflect that all witnesses answered in the affirmative. dr. english do you have time in your practice to watch c-span? for all of you i will give you the brief. we have asked with unanimous consent all of your opening statement in its entirety be placed in the record and in addition any pertinent or extraneous material you would like to submit now or over the next seven days will be put in america. that we should reduce the entire five minutes on the clocks in front of you to say anything you would like to say but i would ask us that runs down you would try to wrap up. dr. english. >> mr. chairman and members the committee want to thank you for inviting me to talk about how the affordable care act is going to affect practicing physicians like myself and members on the

panel in doctor-patient care who have read and understand the law we have already predicted some of these outcomes that you mentioned earlier. none of what you're seeing and the art about to see is unforeseen. the affordable care act problem is not a computer oversight. it would be common sense to me that a program designed in washington d.c. by people who don't take your patience that is supposed to affect people from maine to oregon and it's sort of a top-down fashion with patient variables can have a lot of unintended consequences as you mentioned before. and were generally those unintended consequences or the patience we are going to talk about and also your constituents of aloe citizens. half of what i do is in a salaried position at them nonprofit for patients with ms. what i'm going to talk about is not isolated to ms. ms can be very disabling and affects half a million americans. most of the patients are female

and it affects them at a young age, 20s to 40s. in 1990s we had no medications and now we have 10. the response is highly variable and they get life-threatening side effects. the ms patients require twice the number of staff and twice the amount of time to take care of them. these people can present as young teachers for working mothers who all of a sudden can't walk. a typical presentation. ms doctors might be able to identify risk testers -- risks that your spirit takes a lot of experience to not do that which is why we have about a thousand patients in 28 states and 118 or 150 in counties in georgia. they look at us as primary providers because they see us so often. we are now set up with a health care plan looking at things like metrics that different positions will be weighed against and i think my colleagues will probably touch on this too. metrics are set up by people

mostly in washington d.c. who don't take care of patients. if you comply with these metrics they these metrics their own and if you don't they are penalties. the health care law state some of those penalties states removing those positions from government approved assurance. i will give you a couple of stories and i don't know if i can finish in five minutes. number one was support by cms february 2012 and it said i was in overutilized her of mris compared to my peers to look at brain injuries and routine protocol for msn not to do so can lead to to disability family odyssey don't want to do the mris. i called cms and i said first of all who are my peers? the peers included orthopedic surgeons and i also said are you aware that i am and ms doctor and this is routine protocol and i got nose as well.

they told me this would be on the medicare web site in the future and people would look and see that i am -- a it will be on their web site. i heard earlier testimonies about united health care. united health care dropped quite a few providers and according to "the wall street journal" article it mentions this is in part due to managing its network using medicare's five-star rating system that ties bonus on cost and quality. you are looking at a downgraded position. i'm not off united health care but i'm downgraded because it again being compared to my peers which are fellow general neurologist. they looked at cost and quality and want you to know my quality was literally off the chart. there was a bell-shaped curve and i was over here thanks to my staff however because of cost i was also too high so that is what downgraded me. the two areas of cost were the

mri which we talked about in the other was drug costs. ms drugs are expensive and i have absolute control over that. my peers are sending me these complicated patients. i asim is a question i want to ask united health care but the december 2 deadline to repeal we still four weeks out have not gotten united health care to repeal after the deadline. what i want to know as a provider my supposed to not take care of ms patients or do i just take care of them but limiting my mris and medications to meet metrics? this is just an example. i think physicians will be stuck with the way the laws written law is written now but will be penalized for taking care of complicated patients. i will close by saying i submitted testimony in the state exchanges. they are going to have the were difficult times as far as access to medications and providers who know how to care for certain types of patients like that to

myself and with that i look close and i thank you for this opportunity. >> thank you dr. english. dr. mclaughlin. >> good morning could i want to thank you for the invitation to be here and i welcome that opportunity. i submitted a testimony which i hope you'll all take the time to read. it is packed with details about the nuances of how these plans were designed in architecture with her hats improper thoughts of the drive it's in the battlefield and that being the patient and the doctor. we are all generals and we respect the hard work you have done to to get the to get the slot past and as mr. cummins said even in my own family i can personally attest to the fear that came when my father passed away and my mother at the age of 61 with a terrible medical history, lost her insurance because it was company based with my father's company.

for four years she was essentially uninsured so i have walked that road and i understand where you are coming from and the president in to do something for the citizens of this nation who have the cheers as well. however, in taking care of that unintentionally there were horrific events that are only starting to come to light which is the part that concerns me so much. in my state society in ophthalmology i service a third-party liaison and i look at all things insurance is due as a pattern behavior and i report on them and then we take appropriate action if necessary and most times with good negotiations we can sometimes make great strides. i am an optimist at heart but i believe that everything can be fixed. my former training in college in my graduate work work was an aerospace engineer and i hope to become an astronaut but because of my mother's health might life

took a fast change. i must tell you as a little divergent comment, the pay performance structure we have now in medicare for bonus pay to most physician colleagues i think we can honestly say should he scrapped. we are trained to give our best to our patients. we are paid supposedly to give our best to patients. we shouldn't be doing metrics that have no bearing on the field that we do. in my field of ophthalmology some of the pay-for performance measures could include something as ridiculous as doing a body-mass index. what does that have to do with the health of the eye or with the eye says about other conditions in the body? nothing. you are spending medicare money for ridiculous measures. taking her time in clinical practice to document this for someone who is a statistician

who wants to run numbers. this is not what the doctor-patient relationship is about and that is the only thing that this is about. my comments have no bearing on politics or what it is to this point. we are now at t-minus 20 days and counting. the doctors and the patients are going to be having extreme difficulties in accessing care and yes mr. cummings i agree with you, it's nice to carry a plastic insurance card to say you are insured. it's quite another thing to access to care. to ever allow the insurance companies to devise the current plans and how they are structured on the affordable care act and i might say affecting small businesses as well outsider off the affordable care act v