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enterprise, private or public, should not by overly granular codification be transformed into
statutory violations, triggering disproportionate consequences and undesirable risk-aversion.
(U) In my view, however, FISA generally achieves the right balance in this regard by
requiring agencies to create minimization, targeting, and querying rules, requiring the FISA court
to review them, and requiring the intelligence community to declassify them as far as possible. 320
Congress has not sought to supply this intricate web of permissions and prohibitions by statute,
but instead opted to mandate that they exist and provide mechanisms to verify their adequacy.

(U) Finally, we should remember that the possibility of unintended consequences runs
both ways: it arises equally when Congress declines to act, allowing agencies to develop
domestic surveillance programs without explicit statutory authority or boundaries. To legislate,
or merely to oversee: there is no universally right choice.

(U) My colleagues also consider the disadvantages created by the USA Freedom Act’s
limitation of two-hop collection to telephone metadata, rather than other, newer technologies.
Technology-neutrality, is, of course, often well-advised in crafting statues in this era of rapid
technological change. I agree with my colleagues on that. Yet I see the implications somewhat
differently, both with respect to this statute and the principle of technology neutrality more
generally.

(U) First, it is true, as my colleagues note, that by tying the USA Freedom Act’s two-hop
authority to telephone metadata, Congress “limited the statute’s usefulness.” 321 But we should
also remember why it did that. It is not because Congress was unaware of the benefits of
technology-neutral authorities: witness Section 702, a technology-neutral collection authority
that has proved “highly valuable.” 322 FISA’s business-records provision, which is also up for
reauthorization this March, provides technology-neutral authority to collect one hop of metadata.
The government reports that that provision is very useful, precisely because it embraces the latest
communication technologies. 323 Rather, Congress limited two-hop collection in the USA

320 (U) See, e.g., 50 U.S.C. § 1881a(e) (requirement to adopt, submit for judicial review, declassify, and publish
minimization procedures for Section 702).
321 (U) Statement of Aditya Bamzai and Jane Nitze, Part II.
322 (U) See Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program Operated Pursuant to
Section 702 of the Foreign Intelligence Surveillance Act 104–10 (2014) (“Since 2008, the number of signals
intelligence reports based in whole or in part on Section 702 has increased exponentially,” and 702 is “highly
valuable” for other foreign-intelligence purposes.”).

323 (S//NF) FBI briefing to the Board (Mar. 12, 2019). Specifically, the Bureau told the Board of the 56
business records requests in 2018 sought electronic communications transaction records, or ECTRs, which FBI
described to the Board as arguably the most valuable use of this authority.

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