“I think there was one which was a material support case that was filed based on the 215 metadata where we were able to identify someone,” Cole told Rep. Ted Poe (R-Texas) at a hearing on intelligence-gathering recommendations when asked to name “one criminal case that has been filed based upon this vast surveillance and metadata collection.”
Metadata is information collected by wireless phone companies that tell where, when and to whom customers call. It does not include recordings of the phone call itself, but it may contain phone numbers, time and duration of calls, and the location of the caller and recipient, CNN Money reported.
“How many criminal cases have been filed based upon this massive seizure?” Poe asked him again.
“Well the criminal support statute is a criminal—the material support statute—” Cole said.
“I know. My question is how many?” Poe said.
Cole said he didn’t know off the top of his head.
“There’s one?” Poe asked.
“There may be one,” Cole responded.
“So we have this vast metadata collection on Americans, and the reason is, Oh, we have to seize this information or we’re gonna all die because of terrorists, and you’re telling me as a former prosecutor – I’m a former judge and prosecutor – all this information has collected us one criminal case? Is that what you’re saying – that you know of?” Poe asked.
“Well, congressman, the point of this is not necessarily to make criminal cases. The point of it is to gather intelligence,” Cole said.
“I’m not asking you about gathering— reclaiming my time. My question is one criminal case – that is all you can show for criminal cases being filed against individuals, right?” Poe asked.
“I think that’s the correct number, but I’d have to go back and check to be sure,” Cole said.
“It may not even be one then?” Poe asked.
Cole clarified that the point of the statute was not to do criminal investigations – it was to do foreign intelligence investigations.
“But it’s a—the collection is on American citizens. When a warrant is served – I signed a lot of warrants – Fourth Amendment – you know I actually believe in the Fourth Amendment. When a warrant is served, police officers go out and investigate,” Poe said.
“They return the warrant, and it is filed as a public document – state courts and in federal courts – but when collection on American citizens of their information, this is not made public to them. They never know that this information was seized from them, do they?” Poe asked.
Cole said that the Privacy and Civil Liberties Oversight Board (PCLOB) and the president’s review board have noted that the Fourth Amendment does not cover the collection of metadata under the current law. “So it wouldn’t have those requirements,” he added.
“I know that’s the current law,” Poe said, “but that’s not my question. My question is the information is seized from them. They do not know that their personal information was seized by the federal government. They don’t know that. They’re not protected under our current statute under the Patriot Act. Is that correct or not?”
Cole pointed out that the metadata is collected through a third-party – phone companies.
“The information doesn’t come from them. It comes from the companies that they have phone service with, and no, they’re not informed directly that that metadata from those phone companies has been collected,” he said.
Poe asked if Cole had a personal problem with information being seized on Americans through a third party and Americans never knowing they are the subject of such a collection.
“These are the issues we grapple with everyday, Congressman, as far as trying to do national security investigations and trying to protect people’s civil liberties, and we take leads from the court as to the scope of the Fourth Amendment and where people’s reasonable expectations of privacy are, and these are difficult lines to deal with. And it’s just what we’re doing right now, is trying to find where that right line is,” Cole said.
Poe called the metadata collection “an invasion of personal privacy” that is justified by the idea that it will capture terrorists, and Cole’s testimony that it “has resulted in one bad guy having criminal charges filed on him” makes that justification “a bit overreaching.”