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U.S. House of Representatives
Washington, DC 20515

February 28, 2000

Major General Michael V. Hayden
Director
National Security Agency
Fort Meade, Maryland 20755-6000

Dear General Hayden:

Thank you for your agency's letter of February 24, 2000 addressed to Members of Congress. While I am pleased the National Security Agency (NSA) has begun to respond to widespread public concerns about its activities, your response points out several problems with the existing legal and oversight structure.

First, I agree the Fourth Amendment's protections supersede any technological changes that may impact surveillance activities. However, your assurances that privacy cannot be violated by NSA simply because "the Fourth Amendment transcends whatever technology happens to be involved in a particular form of electronic surveillance," grossly oversimplifies the difficulty of protecting privacy in light of recent technological advances.

For example, there is debate about the precise meaning of the phrase "persons, houses, papers, and effects," which helps define the perimeters of the Fourth Amendment. As American citizens begin to use an array of new technologies to communicate, it is incumbent on our federal government to make sure communications such as e-mail, faxes, and telephone calls receive the same protections the Founders clearly sought for written mail. Further, as more domestic communications cross international borders, the Intelligence Community has a responsibility to ensure they are accorded the same protection as other communications that begin and end in the United States, without crossing an international border in the process.

Additionally, your letter points out how little legislative authority backs the National Security Agency's activities. At numerous points in your attached fact sheets, you make reference to Executive Orders regulating and authorizing NSA activities. As you know, an Executive Order can be rewritten or revoked on a moment's notice, whereas legislative restrictions are more permanent. As past NSA abuses have shown, privacy rights are better protected by relying on an evolving, explicit legal structure than by counting solely on the good faith of government employees wielding massive power and reciting generalities.

In light of these facts, I would ask the NSA to join our efforts to meaningfully and objectively review the effectiveness of existing law and regulation at protecting the privacy rights of Americans both now and in the future. Such a comprehensive review would build far more public confidence in your agency and its vital mission than simply offering pat assurances that the privacy rights of Americans are being protected in surveillance activities.

With kind regards, I am,

very truly yours,

BOB BARR
Member of Congress

cc:

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