RON WYDEN COMMITTEES:

RANKING MEMBER OF COMMITTEE ON

FINANCE JANIted State§ Senoter SELECT COMMITTEE ON INTELLIGENCE

OREGON COMMITTEE ON FINANCE

COMMITTEE ON BUDGET

COMMITTEE ON ENERGY & NATURAL RESOURCES

WASHINGTON,DC 20510-3703 HOI .@MNETTIEE SY TARAGN221 DIRKSEN SENATE OFFICE BUILDING

WASHINGTON,DC 20510

(202) 224-5244

July 30, 2019

The Honorable Daniel CoatsDirectorOffice of the Director of National IntelligenceWashington DC, 20511

Dear Director Coats:

I write to ask that you clarify whether the intelligence community currently interprets Section215 of the USA PATRIOT Actto permit the collection of location data about Americans’phones.

Eversince the revelation in 2013 that the government was abusing Section 215 to collect recordsof millions of Americans’ phonecalls, the public debate about this surveillance law has beenalmost entirely focused on phone metadata — that is, records about when and with whom

Americans communicate. However,this is not the only use of Section 215. The government hasalso used Section 215 to collect location data from Americans’ phones.

In 2014, then-Director Clapper and the Federal Bureau of Investigation each separately sent me

the attachedletters revealing that the government used Section 215 (also knownasTitle V of theForeign Intelligence Surveillance Act) to obtain historical cell phone location data. In 2015,

Congress passed the USA FREEDOM Act, whichsignificantly constrained the use of Section

215. This law not only prohibited the government from conducting the type of bulk-surveillancethat had been revealed to the public, but specifically prohibited the governmentfrom collecting

location data when using Section 215 to obtain call detail records.

The Supreme Court has also sought to protect location data. In the case of Carpenter v. United

States last year, the Court held that the collection of significant quantities of historical location

data from Americans’ cell phonesis a search under the Fourth Amendmentand thereforerequires a warrant. On March 21, 2019, a bipartisan group of four U.S. Senators, including

myself, wrote Attorney General Barr asking how the Carpenter decision was being applied to theintelligence community. We have not received a response. However, following your appearance

at the Senate Select Committee on Intelligence’s public Worldwide Threat hearing, I sent you asimilar question for the record. In your unclassified response, you revealed that, as of March of

this year, you still have not provided guidanceto the intelligence community.

If Congressis to reauthorize Section 215 before it expires in December, it needs to know howthis law is being interpreted now,as well as how it could be interpreted in the future. While

Congress and the Supreme Court have both soughtto constrain the government’s warrantless

surveillance of location data, it remains unclear if the governmentbelievesit can still use Section

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215 to track the location of Americans’ cell phones. I therefore request that you respond publicly

to the following questions by September6, 2019:

1. Does Section 215 (50 U.S.C. 1861) preclude the intelligence community’s collection of

cell site location information, not just with regard to the call detail program but with

regard to the collection of any “tangible things” underthe statute?2. Does the Carpenter decision preclude the intelligence community’s collection of cell site

location information without a probable cause warrant?

Thank you for your attention to this important matter.

Sincerely,

(LanWfRon WydenUnited States Senator

DIRECTOR OF NATIONAL INTELLIGENCE

WASHINGTON, DC 20511

The Honorable Ron Wyden FEB 24 2014

United States SenateWashington, DC 20510

Dear Senator Wyden:

Si 2 ~

Enclosed please find my response to your three post-hearing Questions for the Record

from the 12 March 2013 Worldwide Threat Hearing.

For further assistance, please do not hesitate to contact Ms. Deborah Barger, Director of

Legislative Affairs, at (703) 275-2474.

Sincerely,

Sim

James R. Clapper

Enclosure:Response to QFRs

cc:

The Honorable Dianne Feinstein

The Honorable Saxby Chambliss

My aupel ogee Wee delan in

esp dan \ odyi Wy ranlee

Ge yo Dabbence.

UNCLASSIFIED

Hearing Date: 12 March 2013

Committee: SSCIMember QFR: Senator Wyden

Witness: Director Clapper

Question #1: If a federal agency wantsto collect GPSorcell-site location data of a person

inside the United States for intelligence purposes, how much evidence does that agency

need? Please provide an unclassified answer.

Question #2: To the extent that it is not addressed by the answerto the previous question,if

a federal agency wants to collect the GPSorcell-site location data of a person inside the

United States for intelligence purposes, does that agency need to obtain a warrant? Please

provide an unclassified answer.

Question #3: To the extent that it is not addressed by the answerto the previous questions,

if a federal agency wants to collect the GPSorcell-site location data of a person inside the

United States for intelligence purposes, is that agency required to have individual suspicion

of that person? Please provide an unclassified answer.

Answer: (U) The current practice of the Federal Government is to obtain prospective cell-site

and GPS-basedlocation information for intelligence purposes only under authorizations for

electronic surveillance, and upon showingof probable cause, pursuantto Title I of the Foreign

Intelligence Surveillance Act (FISA). The Governmentis not currently seeking prospective cell-

site location information pursuantto Titles IV or V of FISA, although it may seek authority to do

so in the future. ODNI and the Departmentof Justice will continue to monitor developments and

adoptpractices accordingly. If the Federal Governmentuses its authority to obtain prospective

cell-site and GPS-based location information for intelligence purposes under Titles IV orV,it

will notify SSCL

(U) If the governmentseeksto obtain historical cell-site location information from a person's cell

phoneprovider in the United States for intelligence purposes, the government would currently

seek a court order pursuant to Title V of FISA based on a showing of reasonable groundsto

believe that the records sought are relevant to an authorized investigation.

UNCLASSIFIED

U.S. Departmentof Justice

Federal Bureau of Investigation

Washington, D.C. 20535

March6, 2014

The Honorable Ron Wyden

Senate Select Committee on IntelligenceUnited States SenateWashington, D.C. 20510

Dear Senator Wyden:

Thisis in response to your questions to Director Comey during the Committee’s annualthreat hearing on January 29, 2014. Specifically, you asked whether the FBI is required to haveprobable cause in order to acquire Americans’ cell site location information (CSLI) for

intelligence purposesandif the legal standardis different if the governmentis collecting locationinformation from a smartphone application rather than a cell phone tower.

In responding to your questions, we understand the term “intelligence purposes”to refer

to “foreign intelligence” purposes and the term “American”to have the same definition as theterm “U.S. Person”as defined in the Foreign Intelligence Surveillance Act (FISA). We

understand the term “CSLI” to mean the records ofthe tower and whichofthree pie-piece-

shaped sectors covered by the towerthat serves a user’s phoneat the time of a phonecall,textmessage, or data transmission. Providers collect and maintain these recordsin their ordinary

course of business. Based on your second question, we’ve assumedthat you are referring to

both:(a) historical and prospective collection of CSLI from a cell phoneservice provider,i.e., athird party, that obtains the CSLI via a cell phone tower, and (b) the collection of location

information from the owner/user of the smartphone by accessing the smartphoneitself. Ourresponses will apply to U.S. Persons anywherein the world, as well as anyone located within the

U.S. Finally, although in certain instances the FBI will use criminal legal authorities in national

security investigations, we assume that your questions are focused on national security legalauthorities such as FISA. If any ofthese understandingsare incorrect, please let us know and wewill provide you with additional responsive information.

L CSLI From a Cell Phone Service Provider

In order to obtain historical CSLI records pertaining to a U.S. Person from cell phoneproviderfor a national security investigation, the FBI currently would seek a FISA court order

for business records based upon a showing of reasonable grounds to believe that the records

soughtare relevant to an authorized FBIinvestigation. In order to obtain prospective CSLIpertaining to a U.S. Person from a cell phone providerfor a nationalsecurity investigation, theFBI would seek a different FISA court order, often described as a “full-content FISA,” based

upon a showingof probable cause.

Although the FBI’s current practice is to seek prospective CSLI pursuant to a full-contentFISA order based upon a showing ofprobable cause for a national security investigation, we areaware that in many jurisdictions U.S. district courts authorize court orders in the criminal contextto legally obtain prospective CSLI from a cell phone provider pursuantto other legal authoritiesthat do not require a showingof probable cause. Nevertheless, because a few U.S. district courtsrequire probable cause-based warrants to obtain prospective CSLIin the criminal context, as aprudential matter the FBI elects to seek prospective CSLI pursuantto a full-content FISA order,thus matching the higher standard imposed in some U.S. districts.

Il. Location Information From an Owner/User of a Smartphone

There are a variety of different types of location information that can be obtained viasurveillance or search of a smartphone. Whichlegal authority we would useis very muchdependent uponthe type of information we are seeking and how weintendto obtain thatinformation. Questions considered include whetheror not the information sought would targetan individual in an area in whichthat person has a reasonable expectation of privacy, what typeof data weintend to obtain (GPSorothersimilarly precise location information), and how weintend to obtain the data (via a request for records from the service provider or from the mobiledevice itself). When obtaining prospective orhistorical location information pertaining to a U.S.Person from the smartphoneitself which is possessed by a U.S. Person (or in other circumstancesgoverned by FISA), the FBI would seek a full-content FISA court order based upon a showing ofprobable cause, absent any exception to the Fourth Amendment.

The law and technologyin this area are complex, and we have endeavoredto respond toyour questions based on the understandings referenced above. If you have additional questions,we would be happyto briefyou regarding these other collection techniquesandthe legalauthorities under which we operate. Weappreciate yourinterest in this issue and your continuedsupport for the FBI’s intelligence mission. Please contact the Office of Congressional Affairs at202-324-5051 if you have questions concerningthis or other matters.

Sincerely,

Assistant Director

Office of Congressional Affairs

1 - The Honorable DianneFeinsteinChairmanSenate Select Committee on IntelligenceUnited States Senate

Washington, D.C. 20510

1 - The Honorable Saxby ChamblissVice ChairmanSenate Select Committee on IntelligenceUnited States Senate

Washington, D.C. 20510