    [Senate Hearing 114-878]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 114-878

                        OVERSIGHT OF THE FEDERAL BUREAU
                                OF INVESTIGATION

    =======================================================================

                                    HEARING

                                   BEFORE THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                DECEMBER 9, 2015

                                   __________

                               Serial No. J-114-45

                                   __________

             Printed for the use of the Committee on the Judiciary

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                                    __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    52-546                 WASHINGTON : 2025

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                           COMMITTEE ON THE JUDICIARY

                      CHARLES E. GRASSLEY, Iowa, Chairman
    ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont, Ranking
    JEFF SESSIONS, Alabama                   Member
    LINDSEY O. GRAHAM, South Carolina    DIANNE FEINSTEIN, California
    JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
    MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
    TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
    JEFF FLAKE, Arizona                  AMY KLOBUCHAR, Minnesota
    DAVID VITTER, Louisiana              AL FRANKEN, Minnesota
    DAVID PERDUE, Georgia                CHRISTOPHER A. COONS, Delaware
    THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut

          Kolan L. Davis, Republican Chief Counsel and Staff Director
          Kristine Lucius, Democratic Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Grassley, Hon. Charles E.........................................     1
        Prepared statement...........................................    53
    Leahy, Hon. Patrick J............................................     4
        Prepared statement...........................................    58

                                    WITNESS

    Comey, James B...................................................     6
        Prepared statement...........................................    60
        Questions submitted, classified responses received...........    79

                        OVERSIGHT OF THE FEDERAL BUREAU
                                OF INVESTIGATION

                                  ----------

                          WEDNESDAY, DECEMBER 9, 2015

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:01 a.m., in
    Room 226, Dirksen Senate Office Building, Hon. Charles E.
    Grassley, Chairman of the Committee, presiding.
        Present: Senators Grassley [presiding], Hatch, Sessions,
    Graham, Cornyn, Lee, Flake, Perdue, Tillis, Leahy, Feinstein,
    Schumer, Durbin, Whitehouse, Klobuchar, Franken, Coons, and
    Blumenthal.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,

                 A U.S. SENATOR FROM THE STATE OF IOWA

        Chairman Grassley. Before I give my opening remarks and
    Senator Leahy gives his opening remarks--and my opening remarks
    are a little longer than normal--I would like to say that there
    is a vote at 10:45, and I hope that between the Republicans and
    Democrats that we can keep the meeting going while we go over
    to vote at 10:45. That's my intention. And we'll have 7-minute
    rounds--7-minute questions for at least the first round. And if
    people want a second round, that is permissible.
        Director Comey, we welcome you and thank you for coming.
    The FBI's mission is to protect us from the most dangerous
    threats facing our Nation. The deadly attacks in Paris last
    week--last month and in California last week confirmed that the
    radical Islamic terrorism continues to be such a threat,
    regardless of whether that's politically correct or convenient
    for our President.
        ISIS is a determined enemy executing a plan to gain and
    hold territory, enrich itself, inspire followers worldwide, and
    launch deadly attacks against the West. And the American people
    are very worried--not just about terrorism, but about our
    President's inability or unwillingness to rally the country, to
    lead our international partners, to develop a credible strategy
    to destroy ISIS, and to execute that strategy. We are now
    paying a price for that weakness.
        At almost every turn, events have proven the President
    wrong about ISIS. In August 2012, he drew a ``red line,''
    warning the Assad regime not to use chemical weapons in Syria.
    But the President backed down after Assad gassed his own
    people, and ISIS blossomed in the chaos that followed. In
    January 2012, the President referred to ISIS as a ``JV,'' or
    junior varsity. It promptly spent the next 6 months conquering
    territory across Syria and Iraq. In August of that same day,
    our President conceded that he didn't have a strategy to defeat
    ISIS. A year and a half later, he remains without a coherent
    one. Even former Secretary Clinton admitted the other day that
    we're not winning the fight.
        The President has been hoping that ISIS will go away
    because its existence does not fit a preferred political
    narrative. But hope is not a strategy. Hope is not a plan. And
    hope is not action. And all the while, the drumbeat of attacks
    on the United States continued. In May, there was an attack on
    a convention center in Garland, Texas. In June, police were
    forced to shoot a knife-wielding ISIS supporter on the streets
    of Boston. In July, we had the attack on military facilities in
    Chattanooga.
        Director Comey, has, as of October, reported that the FBI
    was engaged in approximately 500-900 active domestic
    investigations against suspected ISIS-inspired operatives and
    other radicalized extremists. And he estimated that
    approximately 250 Americans have left the United States and
    traveled to Syria to fight with ISIS, or tried to do so.
        Nonetheless, in November, the President assured us that
    ISIS was ``contained.'' But the very next day, it inflicted the
    deadliest Islamic terrorist attacks in Europe in over a decade,
    a coordinated assault across Paris that killed 130 and injured
    over 350. A few weeks later, in San Bernardino, two of its
    apparent supporters executed the deadliest such attacks on the
    homeland since September 11th.
        Unfortunately, our President has responded to this crisis
    by trying to divide us, deride us, and distract us. In fact, he
    is doubling down on his strategy.
        After reports suggested that one of the Paris terrorists
    possessed a Syrian passport and had entered Europe as a
    refugee, many expressed concern about the procedures used to
    screen refugees coming to the United States from Syria.
    Director Comey expressed similar concerns in October. He warned
    that there are ``gaps'' in the information we have to vet
    people coming out of a war zone. And he warned that letting
    anyone come to the United States carries some risk. We can
    point to the brothers who bombed the Boston Marathon as an
    example of terrorists who were granted asylum here.
        Our President responded to the concerns expressed by many
    Americans by mocking them for being afraid of ``widows and
    orphans.''
        But events continued to prove our President spectacularly
    wrong. As it turns out, women are radical Islamic terrorists,
    too, apparently to the President's surprise. We now know that
    Ms. Malik, one of the San Bernardino attackers, arrived in the
    United States on a fiance visa. This is yet another example of
    the failure of the screening process for those entering the
    United States. Our Government apparently didn't catch the false
    address in Pakistan that she listed on her application.
        To top it all off, earlier this week we learned that the
    National Counterterrorism Center has identified individuals
    with ties to terrorists in Syria who are attempting to enter
    the United States through the refugee program. I guess that was
    one intelligence report the administration couldn't shade to
    fit its preferred conclusions.
        Now, it always bears repeating, legitimately so, that Islam
    is not our enemy. Radical Islamic terrorists are our enemy,
    however. The vast majority of Muslims in this country and
    around the world are nonviolent and law-abiding. We all should
    oppose, in no uncertain terms, any violence or intimidation
    against Muslims for practicing their religion. But I fear that
    one of the reasons for the regrettable backlash against Muslims
    in this country is the public's frustration with the
    President's repeated failure to acknowledge the actual nature
    of the threat that we face, his reluctance to utter the words
    ``radical Islamic terrorism.''
        Our President has also continued to divide us, deride us,
    and distract us with the issue of gun control. To the
    President, radical Islamic terrorism is never to blame. But the
    constitutional right to own guns always is. But terrorists are
    not deterred by gun control. Strict European gun control laws
    did not stop the Paris attacks. California's assault weapons
    ban didn't stop the San Bernardino massacre.
        Now, the Obama administration argues that allowing
    foreigners to buy guns who enter the United States through the
    Visa Waiver Program is a problem. I agree. But at the same
    time, the administration is apparently fine--fine--the
    outstanding is apparently fine with allowing refugees, asylees,
    and people on deferred action, and other noncitizens who are
    not legal permanent residents to buy guns. That makes no sense.
    With a few exceptions, we need to prevent all of these people
    from buying guns.
        The administration's current fixation on guns and the Visa
    Waiver Program can be explained, though, because it is another
    area where the administration's actions have made Americans
    less safe. In fact, an opinion from Obama Justice Department
    required the Bureau of Alcohol, Tobacco, and Firearms to change
    its policies to permit persons arriving from visa waiver
    countries to buy guns, and the administrations removed the
    longstanding requirement that noncitizens at least establish
    residency for 90 days in the State where they want to purchase
    guns. These 90 days could be crucial in a terrorism
    investigation.
        So, when we address the issue of foreigners in the United
    States buying guns, we need to be comprehensive about it, not
    just clean up the mess--not just clean up the mess that this
    administration created. Finally, our friends on the other side
    of the aisle have attempted to divide us, deride us, and
    distract us with proposals to deny the right to purchase
    firearms to those on various terrorist watchlists, including
    the No Fly List.
        The incident in California and the terrorists connected
    with it were apparently not on any terrorist watchlist, so such
    a proposal wouldn't have stopped that attack. In addition, the
    President's claim that, quote, ``people we do not allow to fly
    could go into a store right now in the United States and buy a
    firearm and there is nothing we can do to stop them,'' end of
    quote, just is not true. The FBI is notified when somebody on
    the No Fly List attempts to purchase a gun and can take steps
    to ensure that a gun doesn't fall into the wrong hands. So, the
    President and others have been misleading the American people
    on that matter.
        But the more fundamental point is: While these lists are
    useful in keeping us safe, they are the result of the Executive
    Branch's unilateral decisions to put people on them without any
    notice or opportunity to be heard. As a result, they can be
    unreliable. And it isn't just constitutional to condition the
    fundamental right to keep and bear arms on an administrative
    list that lacks that kind of due process.
        We would not consider conditioning any other constitutional
    right--such as the freedoms of speech or religion, or
    unreasonable searches and seizures--on such a process. That's
    why it is so surprising that this President, a former
    constitutional law professor, and so many of his political
    party would support such a scheme.
        The fact is law enforcement hasn't raised gun purchases by
    people on terrorist watchlists as a huge problem. And I know
    Director Comey knows that how to tell us when you have to
    confront a serious obstacle to keeping us safe. At our hearing
    in July, we heard all of the talk from Director Comey about the
    ``Going Dark'' problem and the increasing use of encrypted
    communications by terrorists. After these most recent attacks
    will be, I will be interested in hearing our discussions with
    technology companies on that issue are proceeding.
        I also look forward to discussing a range of other issues
    with the Director today. One is the FBI's treatment of
    whistleblowers. I hope I have the support of the Director in
    strengthening the whistleblower law for the FBI. I also have
    questions about the FBI's investigation into former Secretary
    Clinton's email arrangement, the FBI's potential role in
    facilitating ransom payments, its use of spyware, and the
    ongoing efforts to correct injustices that result from flawed
    forensic work.
        I apologize for a longer statement, but I also think that
    these are things that we don't discuss enough, and we have the
    opportunity today to discuss them. Now, it is Senator Leahy's
    turn, please. Take all the time you need, and I know you will,
    anyway.
        [Laughter.]

              OPENING STATEMENT OF HON. PATRICK J. LEAHY,

                A U.S. SENATOR FROM THE STATE OF VERMONT

        Senator Leahy. The Federal Bureau of Investigation, as we
    know, is entrusted with the enormous responsibility of not only
    enforcing our laws but protecting the Nation. No matter what
    the threat, and no matter what the motivation of those
    threatening us, the FBI is told to keep us safe. On any given
    day, FBI agents around the country are investigating cases
    involving not only terrorism, but violent crime, gangs, cyber
    crime, identity theft, fraud, human trafficking, hate crimes,
    and child exploitation. And they know there is no simple
    answer.
        For example, one of the greatest terrorist attacks ever in
    this country by Timothy McVeigh, none of us said after that,
    ``Well, we have got to start excluding people who served in the
    military or people of Timothy McVeigh's religion.'' Instead, we
    went and found out what he had done and how we might stop
    others from doing the same thing.
        The events of the past 6 months have underscored the varied
    nature of the threats the FBI faces. This past June, 9 African
    American churchgoers were murdered by a white supremacist
    during a Bible study in Charleston. The day after Thanksgiving,
    3 individuals--including a police officer--were shot to death
    inside a women's health clinic in Colorado Springs. Last week,
    14 county workers in San Bernardino were murdered in a shooting
    rampage. None of these seem related. All of them had different
    causes and motivations among those shooting. The Director may
    not be able to share all of the details about these
    investigations today, but I believe we can agree that there is
    one common motivating factor behind each of these heinous
    crimes, and that is, hateful extremism. The one in--the
    churchgoers who were murdered, the women--people in the women's
    health clinic, and the people in San Bernardino, it was hateful
    extremism coming from different directions.
        So, I think it reminds us to be vigilant against all forms
    of violent extremism. And I would hope that nobody
    underestimates the incredibly difficult job of protecting the
    country from terrorist threats. We can try to put all the blame
    on any one person, and that's fine. But it's not any one
    person. It's all of us. We have to support the law enforcement
    and intelligence officials who work to protect our Nation by
    giving them the tools and resources they need to do their jobs
    effectively. And as we've heard from many law enforcement
    officials, we have to continue the very hard work sometimes of
    building trust in our communities among neighbors and with law
    enforcement so that we can all share in the responsibility of
    keeping our communities safe.
        At the same time, I wish we would all categorically reject
    the divisive and corrosive rhetoric of fear that only serves to
    undermine us as a Nation. We know what happens when leaders
    succumb to the politics of fear and lose sight of our
    fundamental American values. Fear is what drove the Government
    to violate the Constitution and imprison thousands of Americans
    of Japanese descent during World War II. Fear is what fueled
    the justification for torture by the CIA, which, Director
    Comey, you objected to when you were at the Bush Justice
    Department, and I applaud you for that. And I know the Director
    reminds all of his new agents that the rhetoric of fear led J.
    Edgar Hoover to target Martin Luther King, Jr., and others
    during the 1960s.
        And if we give in to this sort of fear, then that way the
    terrorists and extremists win. They want us to be afraid; they
    want us to be a Nation divided. Groups like ISIS, for example,
    actively promote the narrative around the world that Muslims
    are not welcome in the United States. And certainly some of
    the--what I would call reprehensible and even unconstitutional
    comments by some allow them to spread that false notion around
    the world. When there is talk about rounding up all Muslim
    Americans or creating a registry based on religious beliefs or
    shutting our borders to all Muslims, that is the sort of
    xenophobic, hateful rhetoric that just plays into our enemies'
    hands. It also demeans us as a democratic Nation founded on the
    principles of freedom, equality, and liberty. We Americans are
    better than that. Let's not succumb to fear and give an image
    that is not the great country that brought my grandparents and
    my great-grandparents here.
        We are a courageous and strong country. And our strength
    comes from our commitment to the morals and principles that
    continue to keep our country great--and a beacon of democracy
    to the rest of the world. The Senate at its best can be the
    conscience of the Nation, and recent events demand that we
    start trying to be at our very best. We are not afraid of
    terrorists, and we not--should not let our country be defined
    by irresponsible fear-mongering.
        While the focus of today's hearing will naturally be on the
    recent terrorist attacks, and justifiably, we should continue
    the Committee's bipartisan oversight of the FBI in other areas.
    Three years ago, the FBI learned that flawed microscopic hair
    comparison analysis was used in thousands of criminal
    prosecutions. Now, frankly, I am not satisfied by the FBI's
    efforts to even notify those defendants who might be affected
    by the faulty evidence. The FBI should be sending agents out to
    gather the relevant information. The lives of potentially
    innocent Americans, including some on death row, depend on
    this. In addition, I'll continue to work with Senator Grassley
    to ensure that whistleblowers at the FBI are afforded adequate
    protections.
        I thank Director Comey for coming before the Committee
    today. I have known the Director for years. I know he shares my
    respect for the Constitution and my faith in the American
    people that we can rise above the divisive rhetoric of fear,
    because we are Americans. We should be better than that. And I
    believe we are. Thank you.
        Chairman Grassley. Since this is an oversight hearing, I
    would like to swear in Director ComeyDirector. Do you affirm
    that the testimony you are about to give the Committee--let me
    start over again. Do you affirm that the testimony you are
    about to give before the Committee will be the truth, the whole
    truth, and nothing but the truth, so help you God?
        Director Comey. I do.
        [Witness is sworn in.]
        Chairman Grassley. Thank you. I assume the Director of the
    FBI needs no introduction, but I would like to read a short
    introduction. It's a pleasure to introduce you to the
    Committee.
        Director Comey became the Director of the FBI in 2013. He
    previously served as Deputy Attorney General and a U.S.
    attorney in New York and an assistant U.S. attorney in
    Virginia. He is a graduate of William and Mary and the
    University of Chicago Law School.
        Welcome. Proceed with your testimony however long you want
    to take.

               STATEMENT OF THE HONORABLE JAMES B. COMEY,

               DIRECTOR, FEDERAL BUREAU OF INVESTIGATION,

                             WASHINGTON, DC

        Director Comey. Thank you, Mr. Chairman, Members of the
    Committee. It's good to be back before you. As every Member of
    this Committee knows, the FBI has a very broad array of
    responsibilities to address a staggering array of threats that
    face our country in terrorism, in counterintelligence, and in
    criminal matters. The key to us doing that well is the great
    people of the FBI, and I so appreciate your support for them.
    They are the magic of the FBI. The best part of my job is to
    get to know those people and to watch them work. And so, I'm
    very grateful for the support of this Committee for those good
    folks.
        What I thought I would do is start with our top priority,
    which is counterterrorism, and tell you how we're thinking
    about it and tell you a little bit more about how we are
    approaching the attack in San Bernardino.
        The Members of this Committee know very well that the
    terrorist threat we face today comes at us from a number of
    groups, most prominently today from the group that calls itself
    the ``Islamic State.'' The threat from the Islamic State has
    three dimensions.
        One, they--they aspire to send operatives to attack the
    United States and its allies. Second, they aspire to attract
    people to come to their so-called caliphate to fight and
    achieve glory somehow from being in that savage place. And,
    last, where they can't send operatives or attract travelers,
    they hope to inspire or direct--and the two terms bleed
    together--people to engage in acts of violence in their home,
    to radicalize in their home, and to kill innocent people on
    behalf of these terrorist groups.
        In Paris, we saw one dimension of that threat, which was
    the sending of operatives to attack and kill innocent people.
    In San Bernardino, we saw last week a different dimension of
    the threat, which is the homegrown violent extremist, the
    radicalizing in place in order to kill innocent people on
    behalf of a foreign terrorist organization, to claim a foreign
    terrorist organization and try to give it credit for acts of
    violence.
        To find homegrown violent extremists, to find those that
    are radicalizing and being inspired by these terrorist groups
    is a very, very hard thing. All of you know from overseeing our
    work, we work at it every single day, and we use all the lawful
    tools that you've given us on behalf of the American people.
    Critical to our finding those people who are radicalizing in
    their homes is tips from the community. We have worked very,
    very hard to develop good relationships in communities all
    across the country, especially in Muslim communities, where we
    have terrific relationships, and those good people so often
    tell us when they see something that does not make sense. We
    are very grateful for that help.
        We also want those folks to know that one of our
    responsibilities is to investigate civil rights cases and hate
    crimes, and we want people to know, if you think someone is
    terrorizing you or threatening you based on your national
    origin or your religion, please tell us so that we can
    investigate that. We are all in this together.
        San Bernardino involved two killers who were radicalized
    for quite a long time before their attack. In fact, our
    investigation to date, which I can only say so much about at
    this point, indicates that they were actually radicalized
    before they started courting or dating each other online, and
    online, as late as--early as the end of 2013, they were talking
    to each other about jihad and martyrdom before they became
    engaged and then married and lived together in the United
    States.
        We also believe they were inspired by foreign terrorist
    organizations. We're working very hard to understand exactly
    their association and the source of their inspiration. We're
    also working very hard to understand whether there was anybody
    else involved with assisting them, with supporting them, with
    equipping them. And we are working very, very hard to
    understand did they have other plans, either for that day or
    earlier, and that work continues.
        Critical to that work is the support we get from State and
    local law enforcement through our Joint Terrorism Task Forces.
    Those 100 or so task forces are the backbone of this country's
    counterterrorism response. We are extremely grateful for the
    help from State and local law enforcement, and if you needed
    any confirmation of the quality and talent of the people in
    local law enforcement, you saw it that day in San Bernardino
    when highly professional officers stopped what might have been
    more tragedy, more violence.
        As you mentioned, Mr. Chairman, I do want to give you a
    very brief report in my opening about where we are with respect
    to the challenge of encryption to our hardest work, to our
    counterterrorism work and to our criminal work. As you said,
    since we were last together, we have had good conversations
    with the folks in the tech sector in lots of different parts of
    this great country of ours, and those conversations have
    convinced me of two things, which are both good news.
        The first is, we care about the same things. The tech
    companies and the FBI and everybody else involved in this
    discussion both care about safety on the internet. We
    understand that encryption is a very important part of being
    secure on the internet. We also all care about public safety.
    We also all see a collision between those things right now. We
    see that encryption is getting in the way of our ability to
    have court orders effective to gather information we need in
    our most important work, and we all agree we have to figure out
    whether we can maximize both of those values--safety and
    security on the internet and public safety. That's good news.
    We are not at war. We are about the same things.
        The second piece of good news is all those conversations
    have actually convinced me it's not a technical issue. There
    are lots of folks who have said over the last year or so we are
    going to break the internet or we will have unacceptable
    insecurity if we try to get to a place where court orders are
    complied with. I actually think it's not a technical issue.
    There're plenty of companies today that provide secure services
    to their customers and still comply with court orders. There
    are plenty of folks who make good phones and are able to unlock
    them in response to a court order. In fact, the makers of
    phones that today cannot be unlocked, a year ago they could be
    unlocked. So, I really don't think it is a technical issue.
        And people also, I think, better understand today the
    Government doesn't want a back door. The Government hopes to
    get to a place where, if a judge issues an order, the company
    figures out how to supply that information to the judge and
    figures out on its own what would be the best way to do that.
    The Government shouldn't be telling people how to operate their
    systems.
        So, we are in a good place in terms of what we understand
    about our values. We are in a good place, I think, where we
    realize it is actually not a technical issue. It is a business
    model question. Lots of good people have designed their systems
    and their devices so that judges' orders cannot be complied
    with for reasons that I understand. I'm not questioning their
    motivations. The question we have to ask is, should they change
    their business model? That is a very, very hard question, lots
    of implications to that. We have to wrestle with it because of
    what's at stake.
        I am limited in what I can say at this point about Paris
    and about San Bernardino, but let me give you a recent example.
        In May, when two terrorists attempted to kill a whole lot
    of people in Garland, Texas, and were stopped by the action of
    great local law enforcement again, that morning, before one of
    those terrorists left to try and commit mass murder, he
    exchanged 109 messages with an overseas terrorist. We have no
    idea what he said because those messages were encrypted. And to
    this day, I can't tell you what he said with that terrorist 109
    times the morning of that attack. That is a big problem. We
    have to grapple with it. And I very much appreciate this
    Committee's support for grappling with the hard questions
    around this. We must resolve the collision of those two values.
        Then I will finish, Mr. Chairman--and I apologize for
    running over my time--with a word to the folks who may be
    watching us at home. I know, and the Members of this Committee
    know, how unsettling seeing this violence in Paris and in San
    Bernardino is to the good people of this country. My hope is
    that they will not allow themselves to be paralyzed by fear,
    but instead to channel that fear into something healthy, which
    is an awareness of your surroundings. In case after case after
    case, we see that when someone radicalized, somebody saw
    something, either online or in a school or at home, and didn't
    tell us about it. We hope that what people will do is not
    imagine these savages of ISIL or of al Qaeda as something
    bigger than they are, not imagine them in the shadows. That is
    exactly what these savages want. But, instead, simply be aware
    of your surroundings. If you see something, just tell us. We
    investigate in secret so that we do not smear innocent people.
    We will not race next door and bang on your neighbor's door. If
    no harm was there, no harm will be done. But if it was
    something, we may be able to stop something significant.
        So, my request of the American people is don't let these
    savages paralyze you. If you see something that seems out of
    place, tell one of us. Thanks to the work of this Committee and
    a whole lot of people in our Government, we are better
    organized today than we were on September 11th. If you tell a
    police officer, if you tell a deputy sheriff you saw something
    that doesn't make sense, we will get it to the right place. We
    will check it out. We will see whether it was something.
        You, I hope, will go on with your lives. You pay us to do
    counterterrorism. We are not perfect. We are good at this. We
    cannot allow ourselves to be paralyzed by what these people are
    hoping to achieve. That is what I hope the American people will
    take from the unsettling experience of watching what goes on in
    San Bernardino and Paris.
        With that, I apologize for going over my time, and I look
    forward to our questioning.
        [The prepared statement of Director Comey appears as a
    submission for the record.]
        Chairman Grassley. No need to apologize for going over your
    time. And your reputation in both Republican and Democrat
    administrations is to call it like it is, and the American
    people are lucky to have a person like you particularly because
    you have a 10-year term to really do your job right.
        Director Comey, earlier this week we learned that the
    National Counterterrorism Center has identified individuals
    with ties to terrorists in Syria who are attempting to enter
    the United States through the refugee program. You have
    acknowledged that there are gaps in the information that we--in
    screening Syrian refugees. But isn't it true that it's not just
    a lack of information that we have to worry about with people
    coming from Syria? After all, ISIS controls a large part of the
    country, including former Syrian government offices and
    facilities. Presumably, it has the personal information of many
    innocent Syrians. It has virtually unlimited funds.
        So, now my question. Are you concerned that ISIS has the
    ability to create fraudulent passports or other identification
    documents for its operatives that has a practical--as a
    practical matter it would be almost impossible to detect?
        Director Comey. Yes, Mr. Chairman. The Intelligence
    Community is concerned that they have the ability, the
    capability to manufacture fraudulent passports, which is a
    concern in any setting.
        Chairman Grassley. Okay. The next point dealing with
    terrorists and the purchase of firearms, last week our
    President stated that there are individuals who can't get on
    planes, but they can go to a gun shop and buy a firearm, and
    there--and, quote, he said ``nothing we can do to stop them.''
    But--and correct me if I'm wrong--the FBI is notified when
    someone on the terrorist watchlist attempts to purchase a
    firearm and a NICS check is requested, and the FBI has multiple
    avenues that they can pursue. These are some of these avenues.
    Delay the firearms transaction, and if the person is actually a
    terrorist, the FBI can arrest them for any crime for which
    there is probable cause; and, in addition, the FBI can
    intervene and directly confront the individual; the FBI can
    also put the suspect on what is called ``around-the-clock
    surveillance.''
        My question: Aren't these some of the tools available to
    the FBI to stop a suspected terrorist from buying a gun?
        Director Comey. Mr. Chairman, you are right, there are a
    variety of things that we do when we are notified that someone
    on our known or suspected terrorist data base is attempting to
    buy a firearm. The FBI is alerted when that is triggered, and
    then we do investigation to understand are there disqualifiers
    that we're aware of that could stop the transaction. And if the
    transaction goes through, the agents who are assigned to that
    case, to that subject, are alerted to it so they can
    investigate.
        Chairman Grassley. I thank you very much for that
    clarification. So, there are, then, actually many things that
    can be done, done right now, to stop someone on the No Fly List
    from buying a gun, and then that leads me to say that our
    President is misrepresenting the facts and misleading the
    American people on that point.
        Next question. In July, you testified before this Committee
    about ``Going Dark''--and you've already commented on some of
    this, but I want to be more specific--and Members from both
    political parties expressed serious concerns about the use of
    strong encryption by terrorists and criminals. I followed up
    with questions for the record, and I asked for data about the
    scope of the problem. At that time the administration declined
    to ask for a legislative solution and I asked for time to work
    with technology companies. But the attacks in Paris and
    California have generated increased alarm about the problem.
        So, question. When is the FBI going to respond to my
    questions relating to that hearing? And that's not the most
    important point that I am trying to bring out here. Could you
    update us about what is known about the role encryption may
    have played in these attacks? And I know you have already said
    that you are limited in what you can say, but whatever you can
    tell us, do it. And, finally, what is the state of your
    conversations with the technology companies to address that
    problem? And you may have expressed that in your opening
    statement, the last part.
        Director Comey. Thank you, Mr. Chairman. At your request
    and the request of other Senators, we are collecting data
    concerning the ways in which encryption is affecting our
    ability to implement court orders for data in motion--that is,
    emails or phone calls--and data at rest that is sitting on
    devices. And I don't know exactly when we are going to get that
    to you, but that work is in progress, and it will show there is
    a significant impact, and growing, across our work, both
    terrorism and in criminal cases.
        With respect to our conversations with the--well, first of
    all, the second piece. With respect to its role in cases, I
    don't want to talk about Paris yet or San Bernardino because we
    are doing a lot of work with respect to those now. There is no
    doubt that the use of encryption is part of terrorist
    tradecraft now, because they understand the problems we have
    getting court orders to be effective when they are using these
    mobile messaging apps, especially that are end-to-end
    encrypted. We see them talking about that all over the world.
    It is a feature especially of ISIL's tradecraft.
        Last, the conversations with the companies have been good.
    Like I said, they really have made clear to me that we are not
    at war with each other; we care about the same things. It's
    also made clear to me that it is really not a technological
    problem. We are not going to break the internet or expose us to
    tremendous insecurities of different kinds by requiring--
    getting to a place where companies comply with court orders,
    because lots of good companies do today. It's a business model
    question. Good people have made a decision to design products
    and sell products where court orders are ineffective. And I'm
    not impugning their motives. I understand they see it as a
    competitive issue or they think it is just the right thing to
    do.
        The question we have to ask ourselves is. Is there a way to
    get folks to change their business model so that judges' orders
    will be complied with? And if that can't be done voluntarily,
    what are the other alternatives? And these conversations
    continue within the executive branch and with our private
    sector partners.
        Chairman Grassley. I could start another question now, but
    it would take too long for you maybe to answer, so I think I
    will go to Senator Leahy so we can kind of keep on time here.
        Senator Leahy. Thank you, Mr. Chairman.
        I just want to follow-up on a question that Senator
    Grassley asked you about the FBI being notified if somebody on
    a No Fly List or that type of list was buying a weapon. If they
    buy it at a gun show where there is no reporting of it, you are
    not notified, are you?
        Director Comey. That's correct.
        Senator Leahy. And if they buy it on an internet sale, you
    are not notified, are you?
        Director Comey. Correct.
        Senator Leahy. And even if they go to a gun dealer who has
    to notify you, you are notified, but there is not an awful lot
    you can do about it. Is that correct?
        Director Comey. Unless, as I said, we find some
    disqualifier under the law. But if we do not find one of those
    things, there is nothing we can do to stop it.
        Senator Leahy. So, the President's statement that somebody
    on a No Fly List or on these watchlists can go and buy weapons
    in the United States is correct.
        Director Comey. There is no prohibition connected to the No
    Fly List. That's correct.
        Senator Leahy. Thank you very much. I just wanted to make
    sure that was--that was clear.
        Now, right after you were confirmed, you spoke about the
    detrimental impact of sequestration and the hiring freeze on
    criminal and counterterrorism investigations. I happen to agree
    very much with what you said. I understand you are still in the
    process of trying to replace all the agents that were lost due
    to sequestration. Is that correct?
        Director Comey. That is correct. We are still trying to dig
    out of that hole.
        Senator Leahy. So, when you can finally hire, you have got
    to train them. Then you have got to get them into
    investigations. So, this sequestration--I don't want to put
    words in your mouth, but is that having a long-term effect on
    the FBI's ability to fight crime and terrorism?
        Director Comey. Yes.
        Senator Leahy. And what would be the impact on the FBI if
    Congress could not come to an agreement on an omnibus
    appropriation bill and instead just passed another long-term
    spending resolution?
        Director Comey. Well, if we return to the impacts of
    sequestration that were kicking in when I started this job, it
    would be a disaster because we are just digging out of the
    hole. To return to a place where we have to ration gas and shut
    down Quantico and choose which people to interview based on how
    much gasoline we have in our tanks, that doesn't make any sense
    to me. So, it would be a big, big deal.
        Senator Leahy. Without going into them here, I remember
    some of the worst-case scenarios you described to me privately,
    and they are chilling.
        Now, we have had a lot of talk about our refugee system. I
    just want to clarify a few facts. The refugee program presents
    the longest and most complicated path for entering the United
    States, and refugees do not get to pick which country they are
    sent to. They are vetted more intensely than any other category
    of traveler. The vetting is conducted before any refugee can
    get on an airplane to come here. The process can take years.
    That's why I agree with former national security leaders like
    General Petraeus and Secretary Hagel and General Brent
    Scowcroft, who wrote to Congress that turning our backs on
    refugees would be contrary to our Nation's tradition of
    openness and inclusivity and would undermine our core objective
    of combating terrorism.
        Now, the House has just passed a bill that would require
    you to personally review, along with the Secretary of Homeland
    Security and the Director of National Intelligence, each and
    every refugee application. Is that really feasible?
        Director Comey. Well, first of all, if the intention is for
    me to do it personally, that would be very, very hard. But even
    as I understood the ask, it was, could I certify to there being
    no risk associated with an individual. And, again, the Bureau
    does not take positions on legislation, and we do not get
    involved in policy decisions. But that practically would be
    impossible.
        Senator Leahy. So, it would make our refugee program
    impossible also.
        Director Comey. Logically, if someone could only come into
    the country if I were to certify to that, it would--it would.
        Senator Leahy. Thank you. We often hear from law
    enforcement that hateful and ignorant anti-immigrant rhetoric
    undermines community trust and ultimately harms the ability of
    law enforcement to do its job. I have the same concern when we
    hear some say we should close our borders to all people of a
    certain religious faith or track people because they have
    certain religious beliefs.
        I worry that these kinds of proposals feed what are the
    real lies that ISIS spreads, that the U.S. is anti-Muslim, and
    they use that as a tool to recruit new members. Is that
    correct?
        Director Comey. The notion that the U.S. is anti-Muslim is
    part of ISIL's narrative and al Qaeda's narrative and other
    terrorist groups.
        Senator Leahy. Thank you. Earlier this year, this Committee
    in a bipartisan fashion approved a sentencing reform bill that
    reduces--it does not eliminate but reduces some mandatory
    minimum sentences. As I have said oftentimes publicly, I would
    like to see an end to all mandatory minimums, but at least this
    is a good step in reforming our criminal justice system.
        Attorney General Lynch, Deputy Attorney General Yates,
    former Attorney General Michael Mukasey, and other law
    enforcement leaders have stated their support for this
    compromise bill. Do you agree that it strikes a reasonable
    balance?
        Director Comey. Well, Senator, as you know, we don't take
    positions on legislation, but because I spent my career as a
    prosecutor, that's an area of interest of mine. I actually read
    the bill, and my reaction was it's reasonable; the things that
    are discussed in there are reasonable. I have found mandatory
    minimums--and we may disagree on this. I have found mandatory
    minimums to be an important part of making some of the most
    important cases I was involved with. But I think that the
    reform, as I understand it, seems reasonable to me.
        Senator Leahy. The Fraternal Order of Police has strongly
    opposed adding a mens rea provision to this. We don't have one
    in the bipartisan bill which was negotiated, Republicans and
    Democrats. They say such a provision in this bill--it doesn't
    mean we can't look at mens rea in other criminal bills, but in
    this one, it would be a poison pill. Do you have any views on
    that?
        Director Comey. I don't. I know it is a subject of
    interest. I do not know it well enough to comment. In fact, I
    was racking my brain. I don't think I ever prosecuted a case
    that did not involve a mens rea requirement, so I don't know
    enough to say.
        Senator Leahy. And, last, I keep pushing for the
    bulletproof vest partnership bill, which Senator Campbell of
    Colorado and I started. You have the resources to equip your
    agents with body armor, but would you agree that it is really
    important that local law enforcement have body armor?
        Director Comey. Very much.
        Senator Leahy. Thank you. Thank you, Mr. Chairman.
        Chairman Grassley. Senator Leahy, you probably asked the
    right question and the Director answered it right, but also the
    Director answered my question right about whether the President
    was misleading, and that's because in the President's televised
    address--and I think it was thoroughly vetted--he stated that
    someone on the No Fly List could walk into a gun store and buy
    a gun and there was nothing that could be done about it. So,
    the President said nothing about going to a gun show or the
    internet to buy a gun, and the Director agreed with what I said
    about that at that time.
        Now, the order is going to be----
        Director Comey. Mr. Chairman, could I----
        Chairman Grassley. Yes.
        Director Comey. I just want to make sure that I was not
    heard to be saying I think the President was misleading. I am
    not trying to take shots at anybody. I was trying to answer the
    questions about what are our capabilities in that regard.
        Chairman Grassley. Thank you very much. I made the
    statement. You didn't make it.
        The order at the fall of the gavel is going to be Graham,
    Cornyn, and Lee, and then after the gavel came down, Hatch,
    Flake, Perdue, and Sessions. And then I will have Senator Leahy
    tell me who the next Democrat will be.
        Senator Leahy. That would be Senator Feinstein.
        Chairman Grassley. Senator Feinstein after Senator Graham.
        Senator Graham. Thank you, Mr. Chairman.
        I want to echo what the Chairman said about your service as
    FBI Director. I think we are lucky to have you. If I buy a gun
    on the internet, is it delivered to my home?
        Director Comey. If you buy a gun on the internet?
        Senator Graham. If I try to buy a gun on the internet,
    where do I pick it up?
        Director Comey. I assume it is shipped to you, but I don't
    know for sure, actually.
        Senator Graham. Okay. Well, let's find out the answer to
    that.
        Okay. Do you agree with the following statement. There are
    more terrorist organizations with men, equipment, and safe
    havens along with desire to attack the American homeland any
    time since 9/11?
        Director Comey. I agree.
        Senator Graham. So, do you agree that the budget cuts that
    Congress has imposed in the past has reduced your ability to
    defend this Nation?
        Director Comey. I agree.
        Senator Graham. Do you believe that the budget cuts that
    will go back into effect in 2 years will dramatically harm your
    ability and your agents' ability to defend this Nation if
    sequestration kicks back in?
        Director Comey. I agree.
        Senator Graham. Thank you. All right. Do you agree that
    rhetoric coming from political candidates running for President
    wanting to shut America down based on someone's religion
    empowers the enemy?
        Director Comey. I'm trying to avoid taking shots at anyone,
    as I said. I----
        Senator Graham. Well, just strike ``Presidential
    candidates'' and put a widget.
        Director Comey. I do believe that our ability to get
    cooperation in the United States, which is my primary
    responsibility, our primary responsibility, depends upon people
    trusting us and having a level of comfort with us. And
    estrangement gets in the way of that.
        Senator Graham. Do you agree with me that if you are a
    soldier, diplomat, or FBI agent serving in the Mideast right
    now, the fiery rhetoric from here at home can put you in
    jeopardy?
        Director Comey. People who know better than I have said
    that, and so I credit that.
        Senator Graham. Was the woman shooter in San Bernardino
    radicalized before she came to America?
        Director Comey. It looks like she was. So, far the data we
    have collected, the intelligence indicates that she was before
    she connected with the other killer and came here.
        Senator Graham. Is there any evidence that this marriage
    was arranged by a terrorist organization or terrorist
    operative? Or was it just a meeting on the internet?
        Director Comey. I do not know the answer to that yet.
        Senator Graham. Do you agree with me that if it was
    arranged by a terrorist operative or organization, that is a
    game changer?
        Director Comey. It would be a very, very important thing to
    know. That is why we are working so hard to understand it.
        Senator Graham. Well, that is the biggest focus, I think,
    of how it would change the game, that they could actually
    arrange a marriage of two like-minded individuals, use the
    fiance visa system to get into the country. So, that is a good
    answer. ISIL--is it their goal to strike the American homeland?
        Director Comey. One of their goals, yes.
        Senator Graham. Yes, not their only goal, but it is one of
    their goals. Is that correct?
        Director Comey. That's correct.
        Senator Graham. Do you believe ISIL cells are already here
    in America?
        Director Comey. I don't have reason to believe that. It's
    something that we constantly look for, and----
        Senator Graham. Do you have any doubt they are trying to
    create one if they do not have one today?
        Director Comey. No. They are trying to do two things.
    They're trying to motivate people already in the United States
    to become killers on their behalf, and they would very much
    like to, as they aspire to be the leader in the global jihad,
    send people here to conduct attacks. It's that second piece
    that we have not seen yet.
        Senator Graham. And that's what you have to guard against
    every day. I mean, they have to be right only once. You have to
    be right every day.
        Director Comey. That is right.
        Senator Graham. And the less resources you have and the
    harder time, the longer it takes you to find out what is going
    on. If you can't listen to the conversations in a
    constitutionally appropriate way, then the enemy has an
    advantage over you, is that correct?
        Director Comey. Correct.
        Senator Graham. Is it fair to say that they wake up every
    day in Iraq and Syria thinking about ways to hit us here?
        Director Comey. Some of them do for sure.
        Senator Graham. Is it fair to say that the Paris attack was
    a very sophisticated, well-planned attack that came from Syria?
        Director Comey. Yes.
        Senator Graham. Is it fair to say that those people who
    planned the terrorist attack would hit us here at home if they
    could?
        Director Comey. Yes.
        Senator Graham. How many countries does ISIL have a
    presence in?
        Director Comey. Sitting here, I can't give you a precise
    count, but it is----
        Senator Graham. More than Syria and Iraq?
        Director Comey. Oh, certainly.
        Senator Graham. I think there are a couple thousand now in
    Libya that took Qaddafi's hometown.
        Director Comey. They claim branches in more than five,
    between five and ten. And the question of whether they have a
    presence is obviously something we're focused on here. But it
    is more than five.
        Senator Graham. Can you give us any time period of when you
    think ISIL will be destroyed?
        Director Comey. I cannot.
        Senator Graham. Can you think of any means that we should
    take off the table that is constitutional in terms of fighting
    ISIL? Is there anything you want to take off the table in terms
    of fighting ISIL as long as it meets our constitutional
    requirements?
        Director Comey. I think I am only qualified to speak about
    the world that the FBI sits in, and we use all lawful tools
    that Congress gives us to try and meet this threat. So, I would
    not take any tool off the table that is lawful.
        Senator Graham. Right. And when it comes to tools, you are
    using all the ones you have because this is a very
    consequential fight.
        Director Comey. Yes.
        Senator Graham. What do you think the likelihood of another
    9/11 against the homeland will be if we don't destroy the
    caliphate in Syria and Iraq in the next year?
        Director Comey. That's certainly a hard question for me to
    answer. Their ability to have a safe haven from which to gather
    resources, people, and plan and plot increases the risk of
    their ability to mount a sophisticated attack against the
    homeland.
        Senator Graham. So, the best strategy would be, at least in
    the short term--they are large, they are rich, they are
    entrenched--is to make them small, poor, and on the run. Would
    that be a good approach to ISIL?
        Director Comey. That makes sense, and my understanding is
    that is the aim.
        Senator Graham. Is it fair to say that other countries want
    to help America in this fight, we don't need to go it alone?
        Director Comey. Certainly in dealing with the FBI, we get
    tremendous cooperation from a whole lot of countries. So, yes,
    they are like-minded.
        Senator Graham. What country has the most gun control
    laws--France or the United States?
        Director Comey. I don't know.
        Senator Graham. Would you check into that?
        Director Comey. Sure.
        Senator Graham. Because I just want everybody to know that
    gun control is as legitimate debate here at home. It is not
    part of a strategy to destroy ISIL, that the laws in France are
    very robust, but terrorists got the weapons. Don't mix the two.
    Thank you very much, Mr. Director.
        Senator Hatch [presiding]. Senator Feinstein.
        Senator Feinstein. Thank you very much, Senator Hatch, and
    welcome, Director Comey, and thank you very much for your good
    work.
        I was just reading a report, ``ISIS in America,'' Program
    on Extremism from George Washington, where they say that 71
    individuals have been arrested on charges related to the
    Islamic State since March 2014 and 56 of them this year alone.
    Is that correct?
        Director Comey. I do not know whether the precise numbers
    are right, but roughly, that strikes me as correct.
        Senator Feinstein. Okay. The last time you were here, you
    mentioned that you have an investigation going in every FBI
    field office on this--in the country. Is that correct today?
        Director Comey. Yes.
        Senator Feinstein. Okay. I wanted to ask you--I was at home
    and I was watching on television when I saw press and others
    going through the apartment of the couple in San Bernardino
    that committed this terrible act. And I was appalled that it
    was not taped off because, from an intelligence point of view,
    it immediately compromised any future intelligence gathering
    from any trace materials or anything else. How did that happen?
        Director Comey. A lot of folks, I think, found that
    confusing. That is our--our, what I believe, great criminal
    justice system in action in part. The way it works is we get a
    search warrant that allows us to enter someone's residence. Our
    forensic experts and agents were in that residence for over 24
    hours and combed through it and took everything that we could
    take under the search warrant and that was appropriate to take
    and recorded that which we needed to record.
        Once we have exhausted that examination, we board the place
    up and make it secure. We have to post under the law an
    inventory of what was taken--that is part of American law--and
    then leave the residence. That part makes good sense to me. The
    part I cannot explain is why the landlord for the place allowed
    the boards to be pried off and folks to go through.
        Senator Feinstein. Well, let me stop you. Wasn't it
    important enough to have some law enforcement officer there to
    see that that did not happen? I mean, after all, you know, 14
    people were killed and 21 were injured. It seems to me that
    protecting that scene is really important. So, I hope that
    there is some procedure whereby that doesn't happen again.
        Director Comey. Well, the judgment of the investigators and
    our forensic experts was we were done with that scene. There
    was nothing else to be gained from that scene, which is why it
    was boarded up, and then the inventory was left. What happened
    next was strange and it struck me as strange on the TV that the
    landlord allowed the media to go through. But we had done our
    work in a careful, responsible way. Twenty-four hours is a
    long----
        Senator Feinstein. Does it go back to local police
    jurisdiction?
        Director Comey. No. It goes back to the owner and lawful
    occupant of the residence.
        Senator Feinstein. So, you relinquish the premises
    regardless of whether somebody finds something that they want
    to come back and look for?
        Director Comey. No. If there is a need for the
    investigation to continue to have access to the place, we will
    preserve the scene. We will put up crime scene tape. We will
    post a guard on it. But if we are done with someone's residence
    that we have searched, under the law we return it, and we post
    an inventory inside as to what was taken.
        Senator Feinstein. Oh, boy. Well, maybe we can talk a
    little bit about that, because from an intelligence point of
    view, I could see things in an investigation that would crop up
    that you might want to come back and look behind the picture
    frame on the wall because there is some message behind the
    picture that you do not know about when you went through the
    apartment initially, or some document. So, it just does not
    seem to me to be smart, but let me go on.
        With respect to encryption, Senator Burr and I on
    Intelligence are working on this issue. I can tell you that
    when I went and visited with the chief counsels of the big tech
    companies in my State about trying to get a bomb-making
    portfolio of 15 pages off the internet--this was the bomb that
    goes through a magnetometer, and I pointed that out, and I
    pointed out it had been tested. And there was no interest in
    taking it down. One company said, Twitter, ``If we find
    something, we take it down, but we don't report it.'' In the
    intelligence bill which passed the Senate, this was taken out
    later and a need to pass the bill by unanimous consent.
        We also had legislation that said that if you find
    terrorist information, you must report it to law enforcement.
    Would you support that?
        Director Comey. I know the administration, the Justice
    Department, is formulating a view on that, and so that's for
    them to do. Operationally, it wouldn't have any bad impact on
    the FBI, and so I guess I have got to wait----
        Senator Feinstein. Well, the FBI would not want law
    enforcement to know what is being said on the internet that is
    terrorist-related or has complicity to commit an act--I should
    say conspiracy to commit an act?
        Director Comey. No, the more we know, the better.
        Senator Feinstein. I would think so.
        Director Comey. But I'm not in a position to offer a view
    on whether the Justice Department will support the legislation
    itself, I guess is what I am trying to say.
        Senator Feinstein. Okay--okay, fine. With respect to what
    you said on encryption, that you don't want a back door, you
    don't want keys, it seems to me that the probable cause warrant
    process is the best process. You said here today enough to
    indicate that you would support that. Is that correct?
        Director Comey. I am sorry. Support? I am not following--
    support.
        Senator Feinstein. Legislation which enabled a warrant with
    probable cause to be able to look into an encrypted web, which
    you said the companies told you was possible.
        Director Comey. Right. It's possible lots of companies do
    it today, provide secure services and comply with court orders.
    There are others who built their business models so that they
    say, ``Even if we want to, we can't.'' But the question of
    whether the answer is compelling them to do that by legislation
    is one that I can't answer sitting here. I think that is
    something the administration a couple months ago decided not to
    seek legislation now, but I also know there is continuing to be
    conversations inside the administration.
        Senator Feinstein. Well, I am going to seek legislation, if
    nobody else is, and I think--I know Senator Burr thinks
    somewhat similarly. I'm very concerned about it because when I
    met with high tech, what they told me was there are parts now--
    when you talk to us about the dark web, which is listened to
    very carefully--that they cannot unencrypt. And I can give you
    the names of the companies that said that to me. And I have
    real concern about that. You know, I have concern about a
    Playstation which my grandchildren might use and a predator
    getting on the other end talking to them, and it is all
    encrypted.
        And so, I think there really is reason to have the ability
    with a court order to be able to--and if you have cause to
    believe that criminality may be going on, to be able to get
    into that. I suspect what happened was in the aftermath of
    Snowden, particularly Europe got very conservative with respect
    to encryption, and the companies back away. Now, that's
    changing with Paris and, God forbid, what might happen in the
    future.
        So, what I'm trying to say is, I think, this world is
    really changing in terms of people wanting the protection and
    wanting law enforcement, if there is conspiracy going on over
    the internet, that that encryption ought to be able to be
    pierced. Do you agree?
        Director Comey. I agree. I would very much like to get to a
    world where if a judge issues an order, companies are able to
    comply with it, either to unlock a device or to provide the
    communications between terrorists or between drug dealers or
    kidnappers. I very much would like to see that.
        Senator Feinstein. Good. Thank you very much. Thank you,
    Senator.
        Senator Sessions. Thank you, Senator Feinstein.
        Director Comey, thank you for your leadership. I believe
    you are a person that is well qualified for this job and
    understand the seriousness of your role and have the background
    and experience to do it well.
        You know, you testified before the House Committee on
    October 22nd, and you said, dealing with prisons and
    punishment, you struggle with the term ``mass incarceration,''
    quote, ``because it conveys a sense that people are locked up
    en masse, but in reality, every case is individual. Everyone
    has a lawyer, everyone has a judge, everyone had to be proven
    guilty.'' And isn't it amazingly true that we now over 95
    percent of criminal defendants plead guilty in Federal court?
        Director Comey. The days of trials seem to be bygone.
        Senator Sessions. So, I think that's a testament, don't
    you, to good investigation and solid cases that are being
    brought?
        Director Comey. I think at least, in part, that is driving
    it.
        Senator Sessions. I think so, too.
        Now, since I was prosecuting, maybe since you were
    prosecuting, the Guidelines--Sentencing Guidelines under the
    Supreme Court have become advisory, not binding. Attorney
    General Holder has altered traditional Department of Justice
    policy and declared that prosecutors don't have to charge the
    most serious offense. The Sentencing Commission has reduced the
    guidelines that were in their power to do so. Senator Durbin
    and I worked together on legislation that reduced the penalties
    for crack cocaine rather significantly, more than a lot of
    people understand. And now we are considering additional reform
    in sentencing.
        You said, I thought wisely, that--you expressed concern
    about the increase in violent crime and murders around the
    country. Instead, it would prompt you to be, quote,
    ``thoughtful'' about criminal justice reform proposals and
    noted, quote, ``We have hit historic lows in violent crime
    recently, and if we let it slide back, we will need to explain
    to those that come after us what we did or did not do to let
    that happen,'' close quote.
        Would you explain the trends in crime and punishment and
    why you shared those words?
        Director Comey. What I was getting at, Senator, is our
    world, with respect to violent crime, is a world that was hard
    to imagine 25 years ago, and a whole lot of hard work went into
    getting us to historically peaceful America. And a big part of
    that, I believe, was law enforcement's work, and I also believe
    every sentencing I ever went to in a way was a tragedy because
    a life was being wasted. But that work had to be done to
    protect those neighborhoods. And what I was urging folks to
    do--I think Harry Truman said, ``The only thing new is the
    history you do not know''--is for folks just to remember we
    used to be in a very different place, and there are reasonable
    reforms, as I said earlier, we can--we can put into place. But
    we have to remember where we once were, and I would not want to
    do anything without understanding the history that lets us
    slide back to that place. And I was saying that in the context
    of a worrisome spike in homicide in over 30 of the Nation's top
    50 cities that has occurred this year that is hard to explain,
    but it is very worrisome. And I was simply sounding an alarm
    saying we have to talk about this, because we have gotten to a
    great place in this country, and this is worrisome, and it
    drives us to need to be even more thoughtful about how we
    change our criminal justice system.
        Senator Sessions. Well said. I think this is--I was there
    when the crime rate was high, and I have seen it decline as a
    prosecutor and subsequent to my time, and we have made real
    progress. I have a chart that shows the Federal prison
    population and how it has been developing, and I hope my
    colleagues will look at this chart, because we have the
    perception that the Federal prison population is surging. But,
    in fact, it peaked around 2013 or so, and it has been declining
    steadily ever since. And according to the Bureau of Prisons,
    they project the population in Federal prisons this year to
    drop by nearly 15,000 additional. So, we are just not on a
    trend to mass incarceration and a surging Federal prison
    population.
        [Poster is displayed.]
        What about State prisons? There are many, many more in
    State prison than in Federal prison, maybe 10 times or more.
    Let's see what is happening in the State systems. We have seen
    a rather dramatic decrease in penalties in States, and part of
    it is budget driven. And people then begin to develop theories
    to justify a reducing prison population based on budgets, and
    you have also a lot of people have always doubted the value of
    prison. So, we've seen a substantial decrease in State prisons,
    and I think that will continue. And so, I guess--and since we
    know there is a pretty high recidivist rate for prisoners--and
    I am not trying to put you in a big argument here, but the fact
    is that more people that are released from prison, aren't they
    likely--aren't we likely to see an increase in crime because
    the recidivist rate--rate remains high?
        [Poster is displayed.]
        Director Comey. I am not an expert. As I think you said,
    the logic of it would say yes, there would be--given the
    recidivism rate, which is one of the things that is exciting, I
    think, about the legislation Senator Grassley talked about, it
    tries to get us doing a better job at reducing recidivism. But
    the math would say sure.
        Senator Sessions. Here the Association of Assistant United
    States Attorneys wrote a letter and said this: ``Every
    incremental weakening''--questioning plans to further reduce
    sentencing, ``Every incremental weakening of those mandatory
    minimum penalties will have a corresponding impact on the
    ability to successfully investigate and prosecute drug
    trafficking. The current proposal will significantly weaken the
    mandatory penalties and significantly deprive law enforcement
    authorities and prosecutors of the tools they need to
    successfully address drug trafficking.''
        Now, you said you could accept the changes, but that's a
    statement that is worthy of serious evaluation. Would you
    agree?
        Director Comey. Sure.
        Senator Sessions. Thank you, Mr. Chairman.
        Chairman Grassley [presiding]. I have been told by Democrat
    staff that Senator Whitehouse is next.
        Senator Whitehouse. Then I will go next. Thank you, Mr.
    Chairman. Welcome, Director Comey. As the author with Senator
    Cornyn of the title you just said was exciting, I thank you. I
    want to ask you about two things. One is botnets, and the other
    is to follow-up on Chairman Grassley's and Senator Feinstein's
    concerns about encryption of communications.
        Botnets first. Senator Graham and I have a bill that tries
    to enhance the Department's authority to pursue the civil
    remedies that have allowed the Department of Justice to pull
    down botnets. One of the challenges that that effort has faced
    has been the legal requirement that the botnets have to be
    engaged in fraud and--or wiretapping before the Department can
    go and pull them down.
        My sense is that a botnet is essentially like a weed. There
    is no such thing as a good botnet. They are either actively
    doing evil things, or they are a latent mechanism for doing
    evil things later on, and that a more vigorous effort to root
    them out of the internet and create better internet hygiene
    against botnets would be a good thing.
        Now, when--I had a vote organized, and there were various
    machinations in the Senate that prevented the botnet provision
    from coming to a vote. And behind that were some statements
    that I'm a little bit astonished by, but basically that some
    botnets are actually good and we should protect them out there.
    I see you looking very surprised.
        Let me ask you, could you react to that? Do you think I am
    in the right place on this, that a botnet is either a latent or
    an active menace on the internet and that we should be
    aggressively taking them down?
        Director Comey. I had that facial reaction because I don't
    know of a good botnet. Botnets are armies of zombies, so
    whether they are coming at you or whether they are standing
    still, it is still really bad. I don't know of a good purpose
    for an army of zombies.
        Senator Whitehouse. Thank you very much. I appreciate it. I
    am glad we are on the same wavelength.
        With respect to encryption, we talk about it often as a
    technical question, and let me be the first to say I don't want
    a Government back door either. Nobody wants a Government back
    door. But as you say, when it's the business model of a
    particular company to disable its own ability to comply with a
    properly authorized subpoena or search warrant under our laws,
    that is a very different proposition, and it is that
    proposition that I want to speak to. And I would like to ask
    you to talk about two things.
        The first is, from the FBI's perspective, what do you think
    are going to be the worst and most dangerous consequences of
    that encryption propagating and criminal use of it or terrorist
    use of it? And less from the FBI's perspective but more
    generally, since the FBI is a leadership organization within
    law enforcement, what do you think regular police departments
    and law enforcement officials around the country are most
    likely to see as the hazards of this encryption in their
    efforts to protect the public? So, first the FBI, and then more
    general law enforcement concerns.
        Director Comey. From the FBI's perspective, we are
    increasingly seeing, inevitably we'll see entirely that
    criminals and terrorists and spies have an unparalleled ability
    to communicate with each other worldwide. Increasingly, we are
    unable to see what they say, which gives them a tremendous
    advantage as against us.
        In the good old days, it was harder for them to communicate
    with each other. Today they have a tremendous ability. Our
    ability to monitor them has not kept pace; in fact, it is going
    in the wrong direction. So, our ability to find people hiding
    in the United States looking to do bad things to root out all
    kinds of organized criminal actors is steadily being impaired.
    That's the problem.
        State and local law enforcement, the impact is for them
    almost entirely devices that cannot be opened with a search
    warrant. And I do very much agree it is a business model
    choice, because the folks who are today selling those phones, a
    year ago their phones did not have that capability. I do not
    remember anybody saying, ``I am not buying their phones because
    they are insecure.'' It is not a security issue. It is a
    business model issue, and there are good motivations behind
    that. But we have to talk about those, and so they are
    encountering increasingly, in kids missing cases, in drug
    cases, in violence cases, devices that are a brick to them that
    hold all of the evidence that might help them figure out where
    a child is, untangle a kidnapping, or figure out where a drug
    gang is operating. That's their problem, less the data in
    motion problem for the State and local, but increasingly this
    it cannot reach the evidence that a judge would otherwise
    authorize them to get.
        Senator Whitehouse. That's very compelling testimony, and I
    can share with you that the Chief of Staff to the President of
    the United States has said that to me that one of the things
    that keeps him up nights is this encryption problem. My concern
    is if these companies have already made the decision that it's
    their business model to prevent law enforcement from using
    subpoenas and search warrants in the traditional way, then they
    have a business justification in their minds for doing it. And
    if that's their position, how is talking to them going to
    change that. Where is the leverage point? What is the
    administration's process for trying to solve this problem?
        Director Comey. I don't know that there is a leverage point
    that is going to flip it from one side to the other. I do think
    that all businesses are making trade-off decisions, and at
    least, in part, what has motivated some of the companies to
    switch to this default encryption is they believe--and I'm not
    questioning their good-faith belief--that it's a competitive
    imperative, that customers want this. And so, the conversations
    are useful because I think we can show them there is tremendous
    harm associated with this, and the customers increasingly see
    that, and so my hope is they will see that calculus
    differently, and their customers will speak to them and say,
    ``No, I'll keep using your phone. It is a great phone, even if
    you would allow a judge to issue an order to unlock it in a
    terrorism case or in some other criminal case.''
        Senator Whitehouse. And, presumably, if you could show that
    but for the phone having been turned into a brick as a result
    of the company's business practices and been protected from
    search warrants and subpoenas, a child was--could not have been
    rescued who otherwise could have been, and there is a fatality
    that has resulted, presumably they would see that as something
    less than great publicity for their choice.
        Director Comey. Well, I actually--I mean, I wasn't just
    saying this. They do care about public safety. These are good
    people. What the conversations have helped them understand is
    the darkness that we see. Good people don't spend all day long
    worrying about the things I worry about. What the conversations
    have helped them see is, ``Wow, there really is a real-life
    impact to this.'' We're trying to find terrorist needles in a
    haystack. When we find one, it goes invisible because they are
    using end-to-end mobile messaging apps. That has real
    consequences. These good people see that. That's where the
    conversations have helped. Now, where that is going to lead, I
    don't know yet.
        Senator Whitehouse. Thank you. If we can help in any way,
    please call on us.
        Chairman Grassley. Senator Lee is next, but before you go,
    unless Durbin and Schumer come back, it will be Klobuchar and
    then the other Senator from Minnesota.
        Senator Franken. That is fine. That is who I am.
        [Laughter.]
        Chairman Grassley. And the reason I took time to do that, I
    am going to go up to Budget and ask a question, so I hope
    everybody will observe the 7-minute rule we have.
        Senator Lee. Thank you, Mr. Chairman. As the other Senator
    from Utah, I am happy to comply with the 7-minute rule.
        Thank you, Mr. Comey, for being here with us today. Thanks
    for all you do to keep us safe. There has been some discussion
    and a little bit of confusion lately about the USA FREEDOM Act.
    In part, this has been precipitated by some of the discussions
    going along with the Presidential election cycle that is in
    full tilt now. But, to clarify, I have just a few questions
    about the USA FREEDOM Act and how it operates.
        First of all, the USA FREEDOM Act doesn't prohibit the
    Government from gaining access to telephone metadata, correct?
        Director Comey. Correct.
        Senator Lee. It allows the Government to get metadata,
    telephone records, connected to any terrorist investigation,
    such that if the Government wants to gather metadata connected
    to a particular phone number that it believes is connected to a
    terrorist investigation, the Government can get that.
        Director Comey. Correct.
        Senator Lee. And the USA FREEDOM Act does not affect in any
    way the Government's ability to gain access to any metadata
    that either originated--as to a phone call that either
    originated outside the United States or that originated here
    and was directed outside the United States.
        Director Comey. Correct.
        Senator Lee. Did the enactment of the USA FREEDOM Act
    substantially affect the Government's ability to prevent the
    San Bernardino attack?
        Director Comey. I'm only hesitating because I don't want to
    talk about particular techniques we are using to understand
    that attack. And so, I guess, Senator, I need not to talk about
    it in the context of that case.
        Senator Lee. Okay. I would note here only that it is
    significant that only--only 4 days prior to the attack the
    Government had access to all of the records that it had access
    to--that it had access to for years prior to the passage of the
    USA FREEDOM Act because there was a 6-month moratorium between
    its passage and it kicking in. And I personally consider that
    highly unlikely, some would say mathematically impossible, that
    it had any difference there. And certainly the Government can
    still investigate the San Bernardino attack by going after
    records of the individuals suspected to be involved in that
    attack.
        Director Comey. Sure.
        Senator Lee. Thank you. I want to talk a little bit about
    this encryption issue. I was pleased to hear you say--and I
    hope I understood you correct--that you're not pushing for
    legislation that would mandate tech companies to put a back
    door, to develop a back door and make that available.
        Director Comey. Correct.
        Senator Lee. What you were saying, as I understand it, is
    that some companies, many companies, could choose voluntarily
    to assist law enforcement in the execution of a warrant in
    helping gain access to any information that they might have
    access to.
        Director Comey. Correct, and those are the conversation we
    have been having.
        Senator Lee. And so, but I assume in order to do that,
    would they have to develop their own back door that they could
    use internally?
        Director Comey. Well, I don't know what in that context the
    term ``back door'' means. They would have to figure out how,
    consistent with their security requirements, they could comply
    with the judge's order, as a lot of companies do today. So,
    they would have to figure out under our system what would be
    the best way to comply with the judge's order.
        Senator Lee. Okay. Let's suppose that we have companies
    doing that, perhaps some, perhaps all. Perhaps they are doing
    it because they want to do it, or perhaps at some point,
    assuming Congress were to pass something requiring them to
    develop a back door, a universal key that could be used to
    unlock the encryption. If U.S. technology companies started
    doing that, perhaps some of them, perhaps most, perhaps all,
    that wouldn't necessarily end the ``Going Dark'' problem, would
    it? Because wouldn't we still have technology companies located
    outside the United States still manufacturing devices that
    wouldn't be subject to that requirement or wouldn't be subject
    to the same thing that would be convincing American companies
    to do that?
        Director Comey. I think that's right, both--in two
    respects. Devices manufactured in other places might be
    different, and communications services from providers outside
    the United States might be different, which is what makes this
    such a hard problem. A big piece of it has to be international.
        Senator Lee. Right. And so, even assuming Congress were to
    enact something requiring the use of a back door, the
    availability of a back door, a de-encryption key, if you will,
    it still would not solve the problem because there would be
    foreign manufacturers.
        It also occurs to me that even assuming all U.S.-produced
    devices had a back-door key of sorts, it's my understanding
    that it's still possible to design an app that there are people
    all over this country and in other places throughout the world
    who can, with relative ease, design an application to be used
    on a smartphone, for instance, or perhaps on a computer that
    could provide encryption that couldn't be unlocked through an
    encryption key made by the manufacturer for the device in
    question. Is that your understanding?
        Director Comey. My understanding is, I think, the same,
    that with respect to a device, if the manufacturer were able
    to, as they were a year ago, to unlock on a judge's order the
    device, there may still be apps on the phone that are strongly
    encrypted, and so the content in that particular app would not
    be available once you unlock the phone.
        Senator Lee. Correct. And so, if U.S. manufacturers were to
    start developing this back-door key and they used it, they had
    it, they made it available to law enforcement under appropriate
    circumstances, presumably those who were determined to go dark
    could and would start using an app that would itself not be
    subject to being opened by that same key.
        Director Comey. Yes, I hate to keep doing this to you. I
    struggle with that term, ``back-door key.'' What I am talking
    about is a year ago the manufacturers of the leading phones in
    the United States could unlock them if a judge ordered it. I
    don't know whether it involved a key or their software. Somehow
    they are able to do that. But you are right, if we return to
    that world, there could still be--the sophisticated user could
    still figure out how to use something like TrueCrypt to protect
    other content on that device. I think there is no way we solve
    this entire problem. Encryption is always going to be available
    to the sophisticated user. The problem we face post-Snowden is
    it has moved from being available to the sophisticated bad guy
    to being the default, and so it's now affecting every criminal
    investigation that folks engage in.
        But I agree; there is no way to solve this entire problem.
    I still think it's worth trying to solve a big chunk of it.
        Senator Lee. And so, the big chunk of it here would involve
    U.S. manufacturers of U.S. diversity, notwithstanding the fact
    that we still would have the risk associated with apps that
    couldn't be opened by means of the same methods that you are
    describing.
        Director Comey. Sure, and there are other parts of it that
    would be difficult to solve, too. You mentioned the
    international aspect of it. Part of the solution, I hope, will
    involve an international set of norms somehow, because our
    partners in Europe very much face the same problem we do. And
    so, they are very interested in having the rule-of-law nations
    figure out so what should the rules of the road be with respect
    to encryption.
        Senator Lee. Right. Okay. I see my time has expired. I do
    want to be clear. One of the reasons I asked the question is
    one thing that I think we ought to be cognizant of is that we
    ought not put U.S. manufacturers in a position in which they
    would be punished relative to other manufacturers, especially
    if U.S. manufacturers then saw a drop in sales because people,
    for whatever reason, preferred other products. And we ought to
    remember the limits on what we can do legislatively. If we were
    to mandate that legislatively, it would not necessarily fix the
    problem.
        I see my time has expired, and I believe Senator Durbin is
    next in the batting lineup.
        Senator Durbin. Thank you very much, Senator Lee, and thank
    you, Director Comey, for being here.
        I would like to speak to you for a moment about the gun
    issue and terrorism. I want to know if you believe that
    terrorist organizations around the world are aware of American
    gun laws.
        Director Comey. As I sit here, I don't--I assume that they
    are, and there is probably some specific I have been told that
    I can't remember sitting here, but I assume that they are.
        Senator Durbin. Let me just read a quote from one. An al-
    Qaeda spokesman, Adam Yahiye Gadahn, American-born, who said in
    a 2011 video, and I quote, ``America is absolutely awash with
    easily obtainable firearms. You can go down to a gun show at
    the local convention center and come away with a fully
    automatic assault rifle, without a background check, and most
    likely without having to show an identification card. So, what
    are you waiting for?''
        That is what his quote was. Well, fully automatic weapons
    are not readily available for civilian use. Semiautomatic
    assaults rifles are, and technology exists to convert them.
    There are reports that the San Bernardino shooters were trying
    to convert semiautomatic rifles into fully automatic versions.
    Can you comment on that?
        Director Comey. That is something we are looking at. There
    is an indication that they attempted to convert or did convert
    them successfully, and I can't give you the answer sitting
    right here.
        Senator Durbin. I guess the point I am trying to make for
    the record is that those who would do us harm know that it is
    easy to obtain firearms and weapons in the United States under
    our current set of laws.
        I would like to ask you a question based on your opening
    statement, and I think I understood what you said, is that you
    have found a public--some type of utterance by the 2 killers
    that they were dedicated to jihad many years ago. And, I want
    to ask you whether that statement was made prior to the
    granting of a fiance visa to the wife.
        Director Comey. Yes. And prior, frankly, to the rise of
    ISIL.
        Senator Durbin. And do you see any weakness in our system
    when it comes to visas or fiance visas that that sort of
    information was not known to us before she was granted access
    to America?
        Director Comey. I don't know enough to say.
        Senator Durbin. We are discussing Visa Waiver Programs now
    and how we can change them to make them better. Roughly 60
    million foreign visitors come to the United States each year. I
    understand 20 million are from the 38 countries where a visa is
    not necessary. And one of the things that is being discussed is
    to require a biometric examination or investigation before the
    visa waiver traveler boards the airplane. Do you have any
    thoughts on whether that would help to make us safer?
        Director Comey. I have not thought about it well enough to
    give you a reaction.
        Senator Durbin. I wish you would think about it, and I am
    sure you will. And it boils down to whether or not prior to
    having access to an airplane you present your fingerprints so
    that they can be checked against the information systems in
    Europe and in the United States.
        Is there a good exchange of information, incidentally,
    between our European allies and the United States when it comes
    to such things as the fingerprints of suspected terrorists and
    known criminals?
        Director Comey. It is good. It has gotten a lot better in
    the last 2 years, and there is still room to improve yet.
        Senator Durbin. I hope we can. I think it is very
    important. Let me ask you the question; I want to make sure
    it's clear in my mind. If someone on the No Fly List walks into
    a licensed firearm dealer in the United States, that in and of
    itself is not a prohibition against that person buying a
    firearm.
        Director Comey. Correct.
        Senator Durbin. So, even if that person is suspected to be
    a terrorist, they could purchase the firearm and leave with it,
    though your agents may then follow them or investigate them or
    keep an eye on them because of that purchase.
        Director Comey. That is correct. We have 3 days to review
    the background and so a hit, if someone walks in and they are
    on the No Fly List, we'll immediately be notified. We will have
    3 days to figure out whether there is some prohibition under
    the law that allows us to stop the transaction. If not, they
    will walk out with a gun if the dealer transfers it.
        Senator Durbin. Absent some other disqualifier, the fact
    that they are on the No Fly List is not enough--a sufficient
    basis to deny the sale. Is that correct?
        Director Comey. That's correct. That's correct.
        Senator Durbin. I would like to bring this closer to home
    in terms of violence--gun violence in my State. We recently
    traced the crime guns that were seized in the most violent
    sections of Chicago, and we found that 40 percent of those
    crime guns were coming into Chicago from gun shows in northwest
    Indiana where there was no requirement for a background check
    before the sale was made.
        Of course, it is not just firearms. It is ammunition as
    well, and we have ample evidence that those who are engaged in
    this gun violence make the short trip over the border into
    Indiana, secure their weaponry and their ammunition, and come
    back and kill people in Chicago.
        What more can we do--we've brought up the issue, and I will
    not engage you on it because I think you know the debate about
    extending background checks to gun shows and internet sales.
    What more can we do with this knowledge, though, that these
    guns are crossing State borders into the city of Chicago and
    being used in the commission of crime?
        Director Comey. Well, under the current legal regime, we,
    but especially our colleagues at ATF, try to understand are
    there straw purchasers involved in that, are there gun show
    participants who know that they are selling to felons or
    prohibited persons, and try and make trafficking cases based on
    that. That's sort of the focus of trying to stop bad guys from
    getting guns at gun shows.
        Senator Durbin. Is there any surveillance of these gun
    shows to see if there are out-of-State license plates or
    anything of that nature?
        Director Comey. I think if there is a predicated
    investigation of a particular dealer within the gun show, there
    is appropriate surveillance. But I am not aware that there is
    surveillance generally of gun shows.
        Senator Durbin. Thank you. The last point I would like to
    make, in his opening statement our Chairman suggested that he
    would be open to the notion of prohibiting foreigners who are
    in the United States under the Visa Waiver Program to purchase
    firearms. That is a provision which I have been offering, and I
    would just say for the record I hope I could work with the
    Chairman and get his support in making sure that this loophole
    is closed. Thank you, Mr. Chairman.
        Chairman Grassley. On the Visa Waiver Program and guns,
    what I was trying to say is I want to go further than that.
        Senator Durbin. I will be glad to work with you.
        Chairman Grassley. Senator Flake.
        Senator Flake. Thank you, Mr. Chairman. Thank you, Director
    Comey.
        Encryption has been talked about some, but let me talk
    about some of the other vulnerabilities we have, and
    difficulties tracking information. I think we've discussed this
    maybe before, but the--the other ways for potential terrorists
    or terrorists to communicate here. It is obviously not just
    email, it is not just text messages. And I have asked some that
    are familiar with the field, if you had an event to communicate
    that you did not want anybody to follow it, how would you do
    it? And some say, well, you get on an app or a game, Words with
    Friends or some other game, and in the comment section there is
    a way to communicate within that. That is probably--I mean,
    there is no way to use encryption right now for that, but it is
    just in the realm of a lot of data, a lot of communication, a
    lot out there. Is that something that is concerning to the FBI?
    How--and what are we doing, without revealing sources and
    methods and everything else, to deal with that situation?
        Director Comey. Thank you, Senator. I don't want to say too
    much about it because I don't want the bad guys to get ideas
    they do not already have. But we have seen a number of cases in
    which subjects of investigations have communicated through
    gaming channels, either through more live action games or
    sometimes through app games on devices. Sometimes those do
    involve encryption, though. Those communications are encrypted
    in the gaming channel, which makes it as hard pressed to
    intercept with a court order as another encrypted channel. So,
    it's increasingly a feature of our work, I guess is what I will
    say.
        Senator Flake. All right. Thank you. We have seen high-
    profile data breaches, obviously, with OMB. What is the FBI
    doing to ensure that we don't fall victim? A lot of
    information, obviously, held by the FBI is extremely sensitive.
    Are we taking the measures that we need to? And how can
    Congress help to ensure that that data is secure?
        Director Comey. Well, we worry about this every day, and we
    try not to be overconfident. I think we have very good systems,
    but we can't be satisfied, because as good as your system might
    be, if human beings have access to it, there is a vulnerability
    there. So, the FBI, especially since Snowden, has stepped up
    our game there to make sure we understand the potential insider
    threat. And so, we focus on it from a technological perspective
    and from a human vulnerability perspective an awful lot, is
    probably the best headline I can give you.
        Senator Flake. You mentioned in your testimony that one of
    the areas of focus is to ensure that we deal with corruption at
    the border. Can you give us an idea of what you are doing to
    combat that?
        Director Comey. All of our field offices along the Mexican
    border have robust public corruption squads and efforts going
    on there, because anytime you have human beings in a role where
    there is potentially tremendous amounts of bad money, there's a
    risk of people being compromised. And so, it's worked all the
    way from the gulf over to the Pacific Ocean in California by
    all of our field offices. We work it in partnership with DHS
    because a lot of our focus is on is there corruption in the
    Border Patrol work force, for example, and I think we've built
    over the last couple years a pretty effective relationship
    there.
        Senator Flake. Back to the visa situation, K1 visas have
    come under scrutiny now. You mentioned in previous testimony in
    the House the difficulty in vetting refugees, for example,
    because of lack of information about their background. I assume
    if that's true in Syria, it may be doubly true in South Sudan
    or in Somalia or elsewhere. And so, we have to rely heavily on
    interviews and assessments by field staff there.
        What methods do we use there--lie detector tests--to try to
    vet whatever information is given? What do we have now? And
    what else can we do in that regard if there's a lack of
    information or data to check what they say against?
        Director Comey. State and DHS would be better qualified to
    answer this than I. I don't think they--in fact, I am quite
    confident they don't use a polygraph in that context. It's a
    problem. Where you don't have data that you can vet somebody
    against, you have to rely upon a skilled interviewer in a
    consular office or some other place to see if they can detect
    deception. And I know we have professionals doing it, but I
    don't know it well enough to tell you what particular tools
    they have considered using.
        Senator Flake. You mentioned and, I think, we have all seen
    the professionalism of some of the State and local officials
    dealing with the situation, for example, in San Bernardino.
    That is not always the case elsewhere in the country where we
    have local officials who maybe need training or expertise. What
    is the FBI doing to ensure that our local partners are--are
    doing what they can to identify or to try to prevent or deal
    with these tragedies when they occur?
        Director Comey. With respect to terrorism attacks or----
        Senator Flake. Yes, yes.
        Director Comey. Well, the bedrock of our effort is our
    Joint Terrorism Task Forces and the relationships we have also
    built with State Fusion Centers to make sure that we give our
    local partners what they crave, which is good information about
    what the threat is, how they might check it out, and good
    training on how to respond when there is an incident.
        We have invested a tremendous amount of effort and money
    trying to make sure we equip State and local law enforcement to
    be able to respond well to these threats. We have just produced
    a video called ``The Coming Storm,'' which is chilling but
    extraordinarily valuable, that through real-life movie actors
    shows how to respond to an attack in that case on a community
    college, the best way to organize yourself, the best way to
    respond. I have heard great feedback from our State and local
    partners. We've made tens of thousands of copies of this. I
    think every university police force should have it. Anybody who
    is responsible for protecting a community should have it and
    look at it.
        Senator Flake. Thank you, Mr. Chairman.
        Chairman Grassley. Senator Schumer.
        Senator Schumer. Thank you, Mr. Chairman. First, thank you
    for having the hearing, to you and Senator Leahy. And, Director
    Comey, I am an admirer of yours--I was before you took this
    position and more so now--and an admirer of the men and women
    who work in the FBI. I think you do a great job. So, none of
    these questions are intended to impugn the hard work or
    integrity of all of you.
        Look, we in New York, praise God, after 9/11 haven't had a
    successful terrorist incident. We have had a few in the country
    now. But it's because of the hard work of your folks and others
    on the Joint Task Forces that you mentioned, including the
    NYPD, who do a great job as well.
        Here are my questions. In your testimony this morning, you
    told us the San Bernardino attackers were communicating online
    about jihad for some time so this raises two big questions
    which I would like to pursue. The first is, how come we did not
    know about these communications before the attacks? And the
    second is, how did she get a visa? How did somebody who is not
    an American citizen pass a visa test when they were
    communicating about jihad online before, no questions asked?
        So, let us go to the first one. First, how do we know when
    terrorists are communicating online? And how does it sometimes
    get missed? How--I know you are exploring this, and I do not
    want to step on any ongoing investigations, but in general,
    this is going to cause great consternation to the American
    people and I think to every one of us, certainly me. Here we
    have somebody who is talking about jihad--two people--for a
    couple of years, and I always--you know, I think most Americans
    have the assumption that we're on top of things like this.
        Director Comey. And I can only answer it in general. I
    don't want to talk yet, if I could, Senator, about the
    particular case.
        Senator Schumer. Okay. So, let's take a hypothetical. Okay?
    Someone is communicating--someone talking jihad over and over
    again online. Do we know of it in most cases? And what do we do
    about it?
        Director Comey. We will only know about it--if it's a
    private communication and not posting on a public forum or on a
    public facing social media site. If it's a private
    communication, whether it's electronic or it's by the mail, we
    are only going to know about it if we had some reason to
    believe that it was going on that allowed us to get permission
    from a judge to intercept those communications. That's where
    the community comes in. If folks tell us, ``I think this guy is
    up to no good,'' then we can start to look at it and use our
    lawful tools. I know the Senators know this, but we don't
    monitor, and we should not in this country----
        Senator Schumer. What about non-American citizens talking
    to American citizens?
        Director Comey. Well, again, that is governed by the rule
    of law in the United States, and so we have to have
    predication, the FBI or our intelligence agencies, to be able
    to intercept the communications of an American, whether they
    are communicating in the United States or overseas.
        Senator Schumer. Okay. And in this case was there any
    public--okay. So, let me ask it more generally. Let's say there
    is some public posting, okay, on a Facebook page or something
    like that where either an American citizen or a non-American
    citizen communicating with an American citizen mentions jihad
    several times. Do we know about that? And what do we do about
    it?
        Director Comey. Often we know about it, either because a
    source of ours or an undercover of ours or a community member
    who sees it tells us about it, and then we can jump on it and
    use all of the tools that----
        Senator Schumer. Do we have enough people monitoring these
    things so that when it is public, we know about it if no
    informant or no neighbor has told us?
        Director Comey. The answer is certainly not, given the size
    of the communication networks we're talking about. Millions and
    millions of people talking to each other and making Facebook
    posts and what-not, it's impossible to monitor----
        Senator Schumer. But I would imagine on public postings you
    could get--we have computers, for instance, that stop child
    pornography with a certain image that's on there. Could we not
    get computers that spit out to us who publicly--and we don't
    know if these communications were public or private, and you
    haven't said, and I am not asking you to do that in this
    particular case. But could we not get a computer to spit out to
    us somebody who is talking about ``jihad,'' ``bombing''--you
    know, some words like this--repeatedly and to a variety of
    people?
        Director Comey. I want to be careful what I talk about in
    open setting, but there are tools, but they are limited in a
    way you would want them to be. But the United States
    Government, unlike some other governments in the world, does
    not monitor the internet.
        Senator Schumer. So, a final question: Could we be doing
    more in these types of situations?
        Director Comey. We can always be doing more.
        Senator Schumer. Okay. And is resources a problem?
        Director Comey. Resources is--I believe----
        Senator Schumer. If we gave you unlimited money--you know,
    we're not going to do that, but we could give you considerably
    more. Would you be able, in more frequent cases, when publicly
    these things are mentioned, to be able to pursue them more
    thoroughly?
        Director Comey. ``Maybe'' is the answer.
        Senator Schumer. Okay. Well, I'd like to get a classified
    briefing from you or others on the details of this because it
    concerns me.
        Second, the Visa Waiver--the visa program, not visa waiver.
    So, let's just take a hypothetical. A non-American citizen has
    communicated online and used publicly, let's say--or now
    privately I guess we could intercept them, but it is hard--and
    used, you know, inflammatory words, language, intention, and
    they come here on a visa, and let us even assume now it's not
    in a visa waiver country. How often do we catch them?
        Director Comey. I don't think I can answer that sitting
    here. I don't know enough about--I can't answer sitting here. I
    am sure we----
        Senator Schumer. Don't you think we should know that?
        Director Comey. Well, I am sure somebody does. We could get
    you an answer in a pretty good way in terms of numbers.
        Senator Schumer. Because after this hearing today, every
    American is going to be asking the question: How did this woman
    come in on a visa, a fiance visa--I think it is called 1K or
    K1.
        Director Comey. K1, I think.
        Senator Schumer. K1. If she was talking publicly--again, we
    will get into privately in the classified briefing--about
    jihad. Not this woman, sorry. How could a woman--strike
    ``this'' and use the word ``a''--or man----
        Senator Franken. Hypothetical.
        Senator Schumer. Hypothetical, right.
        Director Comey. And, again, assuming they are talking about
    it publicly.
        Senator Schumer. Yes.
        Director Comey. On an internet forum or something?
        Senator Schumer. Yes. Should it there--shouldn't that be
    somehow tied into our visa program?
        Director Comey. As part of the visa vetting process.
        Senator Schumer. Yes.
        Director Comey. Yes. I can't give you a good answer sitting
    here, frankly.
        Senator Schumer. No, but shouldn't it be?
        Director Comey. I don't know enough to say, because I don't
    know exactly what investment would have to be made to do that
    work and what would be the payoff on the other side.
        Senator Schumer. Got it. Again, I will pursue this further
    with you both classified and nonclassified, and I thank you. My
    time is now up.
        Chairman Grassley. Senator Cornyn.
        Senator Cornyn. Thank you. Thank you, Mr. Director.
        If the FBI had a telephone number from a known foreign
    terrorist and there were people in the United States making
    phone calls to that known number, there are procedures in place
    through the NSA and other agencies to check against that known
    terrorist number to see if there're telephone calls by
    Americans to that number. Isn't that correct?
        Director Comey. Correct.
        Senator Cornyn. And it doesn't involve any content at that
    point. Correct?
        Director Comey. Correct.
        Senator Cornyn. Congress just voted and the President
    signed into law a piece of legislation that prohibits the
    National Security Agency from maintaining the bulk telephone
    records. Does that--does that development entail greater risk
    or otherwise limit the tools available to the FBI to be able to
    discover those sorts of communications?
        Director Comey. I don't know yet because the USA FREEDOM
    Act framework is sufficiently new that I can't give you a high-
    confidence answer on its effectiveness compared to what we used
    to have. In theory, it should work as well or better than what
    we used to have, but I don't know yet.
        Senator Cornyn. So, it could entail more risk or no more
    risk?
        Director Comey. Correct.
        Senator Cornyn. You can't say.
        Director Comey. It could--I just don't know at this point.
        Senator Cornyn. Okay. I was shocked, as I bet a lot of
    other people were, particularly about your testimony with
    regard to encryption and its impact on the Garland shooting in
    my home State of Texas, 109 encrypted messages that still today
    the FBI cannot gain access to. Is that correct?
        Director Comey. Correct.
        Senator Cornyn. And the only way you would be able to gain
    access to that, again, is not because you are monitoring
    private messages. It would be you would go to court and show
    cause, meet the legal standard in order to get a court order to
    then give you access to those records.
        Director Comey. Correct.
        Senator Cornyn. And you said there are telecommunications--
    there are phone companies or, I should say, manufacturers who
    are marketing their encryption as a way to gain market share in
    America, to advertise that these are private conversations that
    not even courts can order access to.
        Director Comey. I think there are device manufacturers who
    include that in their description of why their products should
    be used.
        Senator Cornyn. And you said encryption is part of
    terrorist tradecraft. Correct?
        Director Comey. That's for sure.
        Senator Cornyn. To me that is a staggering situation
    because it still persists today. Correct?
        Director Comey. Oh, yes, and growing.
        Senator Cornyn. And so, while we are all horrified and
    repelled by what we saw in San Bernardino and what we saw in
    Paris, there could well be similar communications, not in those
    cases but in other cases, going on today and the FBI would not
    be able to gain access to those communications between
    terrorists even with a court order.
        Director Comey. That's correct. And strongly encrypted,
    end-to-end encrypted, even if a judge issues an order, if we
    intercept it, it is still encrypted and unreadable.
        Senator Cornyn. Do you consider that a danger to the
    American people? Does that increase the risk of terrorist
    attacks that could go undetected before the carnage occurs?
        Director Comey. I do, which is why we've been talking about
    for the last 2 years so much.
        Senator Cornyn. Well, I appreciate very much your making
    this important point, but it concerns me a lot that Congress
    has not acted to do anything to give you the tools that you
    need. I appreciate the way you have tried to discuss this with
    the various manufacturers and other entities involved, but it
    strikes me is if they are gaining market share by advertising
    their encryption and saying that not even the Federal
    Government in a terrorist investigation can gain access to it,
    that is a real problem. And so, I think you said you hoped to
    get to a place where the companies can comply with a court
    order, but do you think it would be useful for Congress to
    actually try to do something about this? Or should we just wait
    for the voluntary compliance by the industry?
        Director Comey. I think it would be useful, as Congress has
    done, for Congress to try to drive this conversation, to ask to
    draw people into it to figure out what we can do, because I do
    not want to hurt American business, but I also have a
    responsibility to try and protect the American people. And all
    of us care about the same thing, so I appreciate Congress
    trying to drive this conversation.
        Senator Cornyn. Well, I think your testimony here today
    will help do that. I think it has surprised and shocked a lot
    of people.
        I want to just close on this line of questioning, Director
    Comey. We are at a point in our Nation's history where the
    public doesn't trust Government. I think a Pew poll indicated
    less than 20 percent of Americans say they trust their
    Government most of the time. And, unfortunately, many Americans
    have lost faith in our national institutions, including our
    justice system, and I know how much you care about that and how
    much you've dedicated your life to making sure that people can
    trust law enforcement and our justice system. That faith is
    endangered when attempts are made to pervert it in favor of the
    powerful who would like to create different rules for those who
    rule.
        I know this is a sensitive matter, and I'm not going to ask
    you about the content, but I know the FBI is currently
    investigating the private email server of the former Secretary
    of State, and it has troubled me, and I know others, when some
    people have attempted to disparage or otherwise predict the
    outcome of the ongoing FBI investigation. I know the President
    himself said that we don't get an impression that there was
    purposely efforts to hide something or to squirrel away
    information. Does the President get briefings on ongoing
    investigations by the FBI like this?
        Director Comey. No.
        Senator Cornyn. So, he would have no way of knowing what
    the status of the FBI investigation is?
        Director Comey. Certainly not from briefings from the FBI.
        Senator Cornyn. I know a former senior official at the FBI
    and the current president of the Law Enforcement Legal Defense
    Fund told the New York Times that injecting politics into what
    is supposed to be a fact-finding inquiry leaves a foul taste in
    the FBI's mouth and makes them fear that, no matter what they
    find, the Justice Department will take the President's signal
    and will not bring a case. But I just want to ask you to
    perhaps repeat something you said earlier when you said that
    people at the FBI, including you, don't give a rip about
    politics. Is that your position?
        Director Comey. That is true through and through the FBI.
        Senator Cornyn. So, for politicians of whatever level,
    whether it's the President of the United States or Members of
    Congress or anybody else, trying to lobby or intimidate or
    influence an investigation by the FBI, that does not work, at
    least under your leadership.
        Director Comey. It does not matter--I don't want to hurt
    anybody's feelings, but it doesn't matter what anybody thinks
    or feels about our work. We are competent, we are honest, and
    we are independent. We are going to do our work the right way,
    and we care only about the facts. That's who we are.
        Senator Cornyn. Well, that is certainly consistent with the
    way you have conducted yourself, I think, in your public life,
    and I think that will help restore in some small part people's
    confidence that there are people trying to do the right thing
    for the right reasons. So, thank you very much.
        Director Comey. Thank you, Senator.
        Chairman Grassley. Senator Klobuchar.
        Senator Klobuchar. Well, thank you very much, Mr. Chairman,
    and thank you, Director Comey, for being here. I really
    appreciate it.
        One of the things that we haven't gone into as much is the
    online recruiting of terrorists. Minnesota, as you know, has
    been very aggressive--our FBI and our local law enforcement,
    our U.S. Attorney Andy Luger--in going after cases of people
    who have been recruited, much of it online--not all of it, but
    much of it--to join ISIS or, before that, al-Shabaab. And I
    have seen these recruiting techniques myself. Your agents have
    shown them to me. And I wondered what is being done about that.
    And, you know, it may have played a role--I know the
    investigation is still going on into the tragic shooting in San
    Bernardino, but what is this emerging threat? What can be done?
    There has been discussion about getting the companies to take
    down these sites as much as possible. Just talk a little bit
    about that.
        Director Comey. Thank you, Senator. ISIL tries to
    crowdsource terrorism. They obviously, as we talked about,
    aspire to send operatives here. We as a country have made that
    very, very hard, although it is something we focus on a lot.
    And so, they also try to inspire people to kill on their
    behalf. They send a message in a very slick way that resonates
    with troubled souls, with people who are unmoored and seeking
    meaning in their life, kids a lot of times, or older people who
    have struggled in some way. And it is a very, very seductive
    message that, by virtue of its quality and its quantity, has a
    huge impact on the troubled mind because it is buzzing all day
    long that these people can consume this. And their goal is to
    draw folks into this closed circle online where they are
    constantly bombarded with, ``This is the way to meaning, this
    is the way to meaning,'' and that shapes a troubled mind.
        And so, what we try to do is make sure we are aggressively
    investigating that to find those that are on that path
    consuming and potentially radicalizing, and then work with a
    whole lot of other folks to try to help kids who might be
    vulnerable to it, and not just to their poisonous message but
    to all kinds of poisonous messages that inspire people--inspire
    people to violence.
        So, we are about to come out with something called, ``Don't
    be a puppet,'' which is--I am no judge of what is cool, but I
    am told this is cool--almost like an online game for schools to
    have kids learn this is the way they come after you and here is
    how you resist it, whether it is al-Shabaab or ISIL or some
    domestic extremist group. Those are the two ways we try to
    attack it.
        Senator Klobuchar. Very good. And as you know, we have one
    of the sort of pilot projects, the Countering Violent Extremism
    group, and it has been used with our Muslim community, which we
    are very proud of in Minnesota, has been working to try to
    prevent these kids from getting involved in this in the first
    place. And I really appreciate the work that you are doing. I
    just encourage you to do more. We need more funding. We are
    hoping we can get some out of this budget for these projects to
    fight Islamic extremism. So, thank you for that.
        I know that Senator Flake asked you about cooperation with
    local law enforcement, and I heard you bring it up in your
    initial statement. Do you think they have enough resources to
    deal with what we are--Senator Murkowski and I are introducing
    the COPS bill again to try to increase funding there, but could
    you talk about that?
        Director Comey. Our State and local partners are strapped
    across the country coming out of the painful cuts they have
    endured over the last 8 years, and so they are still
    contributing their stars to our task forces, but I know what it
    costs them because they are shorthanded across the country.
        I travel to our field offices. I have been to all of them
    once. Now, I am almost halfway through the second time. Every
    visit I talk to State and locals, and I hear this over and over
    again. They are being asked to do more and more with less. They
    are trying to become better at community policing. That is very
    hard when you are having to have officers cover twice the
    territory they used to cover. They don't have time to get out
    of their cars and meet people. So, it is a constant theme I
    hear from our partners.
        Senator Klobuchar. Thank you. And I wanted to end--a lot of
    my colleagues have you asked you about encryption, and I know
    you were here before and talked about efforts to try to work
    with the phone companies. I thought your testimony was very
    interesting today when you talked about the fact that some of
    suspect that it may not really be a technological issue as much
    as it is a business model issue. But--so, if that is all the
    case, what has been done to improve it since that time? Has
    there really been changes except for discussions with the phone
    companies? You said in answer to one of the questions that a
    good chunk of it could be resolved. How would we resolve that?
    Is it just simply the international norms you talked about
    where you would have agreement between countries to when--that
    our court orders and their court orders could be followed? I am
    just trying to get to a solution here as soon as possible. I
    just keep waiting for the next ticking time bomb of something
    where, you know, our law enforcement is not able to access it.
    And you know it is domestic as well. It is not just terrorism
    investigations. Cy Vance has made this a crusade, going around
    talking about the problem in gang cases and some of the others.
    And I just remember as a prosecutor sitting in on wiretaps,
    seeing that kind of information. These are the old days when
    people were using landlines and when there were less
    sophisticated cell phones, and it was a major part of our
    investigations.
        Director Comey. I think a big part of the problem can be
    solved if folks who are currently producing and selling devices
    that can't be unlocked by judges' orders or communications that
    can't be intercepted by judges' orders were to change their
    business model in this respect--not to give us a key. I don't
    want a key. I don't want to tell them how to do their business.
    But figure out how they could change their model so they comply
    with judges' orders.
        As I said in my testimony, I actually don't think that is a
    technical problem. The folks making the phones today, they were
    doing that a year ago, and nobody said their devices were
    insecure so we ought not to buy them. And so, I am hopeful--I
    mean, I am an optimist. I am hopeful that people, now that they
    understand how big the threat is, will consider those changes
    and get us to a place so we can address a big chunk of it that
    way. It's not going to solve the entire problem, and I agree
    very much that you don't want to just chase the problem
    offshore, and so there does have to be an international
    component to this. But a big start would be people
    acknowledging it is actually not a technical problem; we have
    chosen to operate our business this, for good reasons; but we
    should stop saying you are going to break the internet if you
    ask us to do this, or the Director of the FBI wants to
    stockpile keys. No, I don't. I don't want the key to anybody's
    house. You should figure out--when a judge says there is
    something in your house that this Nation needs to be safe, you
    figure out how to come out of the house, use a window, use a
    door, use a slot, whatever keeps your house safe. We should not
    tell you how to do it, but we should get to a place so when a
    judge says this is necessary, you are able to comply.
        Senator Klobuchar. And you are talking here about court
    orders, and you are talking here about an international norm,
    given that the world has united against ISIL and this kind of
    other terrorist evil. So, some way that we can find
    international agreement on when this information is given to
    pursue these very important investigations.
        Director Comey. Yes, I think reasonable people have said
    that is a part--that should be a part of it, and I think they
    are right.
        Senator Klobuchar. Thank you very much.
        Senator Hatch [presiding]. Thank you, Senator Klobuchar.
        Mr. Director, we are really happy to have you here today,
    and I want to personally express my gratitude for the work that
    you are doing, the work you have done in the past, and for the
    good way you approach law enforcement in this country. You are
    doing a great job.
        Last week's tragedy in San Bernardino was the worst
    terrorist attack on American soil since 9/11. Now, the shooters
    claimed allegiance to ISIS, and ISIS has called them its
    followers. I think it's important to call this attack what it
    is. Do you agree with me that this was an act of terrorism?
        Director Comey. Yes.
        Senator Hatch. Do you agree that it appears this terrorist
    attack was at least inspired by ISIS?
        Director Comey. We are still sorting that out, Senator. It
    was definitely claimed by the killers at or about the time of
    the killing that they were doing this on behalf of ISIL, and
    ISIL then has embraced them as followers. There's more work to
    be done to understand the motivations more clearly.
        Senator Hatch. It would seem hard to not say that ISIS had
    something to do with it.
        Director Comey. Right, ISIL inspiration may well have been
    part of this.
        Senator Hatch. Sure.
        Director Comey. But these two killers were starting to
    radicalize toward martyrdom and jihad as early as 2013.
        Senator Hatch. I agree.
        Director Comey. And so that's really before ISIL became the
    global jihad leader that it is.
        Senator Hatch. Within 24 hours of this terrorist attack,
    the Attorney General stated that her, quote, ``greatest fear,''
    unquote, was the possibility that it could lead to anti-Muslim
    rhetoric. And after 130 deaths by ISIS in Paris and 14 dead
    Americans last week, my greatest fear is not rhetoric. I mean,
    in all honesty, my greatest fear is more attacks and more dead
    Americans.
        If we were to put it this way, what would be your greatest
    fear after last weeks' terrorist attack?
        Director Comey. My fear, which is not new--it has been a
    feature of my work since I started this job--is what don't we
    know, what cann't we see, and that is the particular challenge
    of those radicalizing online, consuming propaganda, and trying
    to stay beneath our radar. This confirms to us what we have
    said all along, as have many other cases. The reason we have
    cases in all 50 States is a very real concern that people are
    radicalizing in a way that is hard to see. That inability to
    see is my biggest worry.
        Senator Hatch. Well, I share that.
        Let me just say this--and I would like to follow-up on
    Senator Lee's line of questions regarding the so-called dark
    problem. I have two questions.
        First, with respect to control of encrypted data, U.S. tech
    companies do not want to be the middleman between law
    enforcement and technology customers. How do you--how do you
    reconcile this concern with the needs of law enforcement? And
    have you considered alternatives that would meet the needs of
    law enforcement but not put the United States tech companies in
    the awkward position of middleman?
        Director Comey. I'm not sure I know exactly what they mean
    by middlemen. I don't want anybody to be the middleman for law
    enforcement. But everybody in the United States has, I believe,
    an obligation to endeavor to comply with judicial orders in
    criminal investigations, whether you are a bank or you run a
    sandwich shop or you run a technology company. And so, I don't
    want anyone to be the middleman, but I want everyone to be in a
    position to comply with judges' orders. That's what the rule of
    law is about.
        Senator Hatch. Thank you. Second, U.S. tech companies are
    not the only businesses that offer encryption to countries--to
    customers. Businesses in other countries offer it as well. Now,
    if we require U.S. tech companies to provide decryption keys,
    won't users simply look to technologies from other non-U.S.
    companies to conduct their activities? How do you respond to
    that concern?
        Director Comey. That's a serious concern. First of all, I
    do not want anyone to supply encryption keys, but if we went to
    a place where American companies were required to figure out a
    way to comply with judicial orders, they do make a serious
    argument that what that would do is chase our business
    overseas. I'm not in a position to evaluate that argument. A
    little part of me is skeptical that people would stop buying
    the great phones we make in this country because a judge might
    order access to it. But I am not really an expert on that.
        So, I do think a part of this has to be an international
    compact of some sort. None of us want to hurt American
    business. But at the same time, there are costs to being an
    American business. You cannot pollute, you cannot employ
    children. There are certain things we've decided as a country
    we want to govern ourselves this way. And so, in a way, I think
    we have to figure out what's right for America first, and then
    try and figure out how to reduce the harm that might come
    competitively.
        Senator Hatch. Okay. I would like to turn now to the issue
    of rapid DNA. Last week I introduced bipartisan legislation
    with Senators Feinstein, Lee, and Gillibrand to update our
    Nation's laws to take account of this exciting new technology.
    Now, rapid DNA devices are self-contained. They are fully
    automated instruments that can be placed in booking stations
    and that can both develop a DNA profile from a cheek swab and
    compare the results against existing profiles in less than 2
    hours.
        Now, my bill, the Rapid DNA Act of 2015, would allow law
    enforcement officials using FBI-approved rapid DNA instruments
    to upload profiles generated by such devices to the FBI's
    Combined DNA Index System and perform data base comparisons.
        Director Comey, you have spoken in the past about rapid DNA
    and how this technology will help law enforcement. Do you
    believe that rapid DNA technology is important? How will it
    impact law enforcement? And do you believe Congress should pass
    legislation authorizing its use within standards and guidelines
    promulgated by your agency?
        Director Comey. That authority that's in your bill would
    help us change the world in a very, very exciting way. That
    would allow us in booking stations around the country, if
    someone is arrested, to know instantly or near instantly
    whether that person is the rapist who has been on the loose in
    a particular community before they are released on bail and get
    away, or to clear somebody, to show that they are not the
    person.
        It is very, very exciting. We are very grateful that we are
    going to have the statutory authorization, if that passes, to
    connect the rapid DNA technology to the national DNA data base.
        Senator Hatch. Well, thank you. My bill, the Rapid DNA Act,
    will not affect when or under what circumstances law
    enforcement collects DNA samples. These decisions would be
    governed by State or other Federal law. What it will do is
    affect where samples are processed and how quickly they are
    processed.
        Now, Mr. Director, what would you say to individuals who
    may be concerned that rapid DNA technology will raise privacy
    concerns? And what would you say to individuals who may be
    concerned that this technology could affect the integrity of
    the FBI's Combined DNA Index System, or CODIS? And I would note
    that my bill restricts access to CODIS to FBI-approved rapid
    DNA instruments operated in accordance with FBI-issued
    standards and procedures.
        Director Comey. First, you said it well, Senator. Folks
    need to understand this is not about collecting DNA from more
    people. It is about the DNA that is collected when someone is
    arrested, being able to be analyzed much more quickly, that can
    show us in some cases this is the wrong person or can show us
    in some cases this is someone we have to be very worried about.
    That is good for our justice system as a whole.
        And you are exactly right. The national data base, the
    CODIS data base, is the gold standard. This legislation does
    not make it any--water down the standards that are applied
    before a DNA result can be pressed against that data base.
    We're still going to have high standards. We're still going to
    require that this is the gold standard for identification in
    the United States.
        Senator Hatch. Well, thank you, sir. Senator Franken is
    next.
        Senator Franken. Thank you, Mr. Chairman.
        Director Comey, first I would like to thank you for
    appearing today. It's good to see you again, and you do a great
    job, I think as all the Members of this Committee agree.
        Before I turn to my questions, I want to extend my thanks
    to the Bureau and to you and to your agents for assisting in
    the Federal civil rights investigation surrounding the death of
    Jamar Clark in Minneapolis. I supported the decision of Mayor
    Hodges and Police Chief Harteau to call for an independent
    investigation. In my view, a full, thorough, and transparent
    accounting of the facts is necessary to get to the bottom of
    what happened in that tragic event and to restore trust between
    the North Side community and the police and law enforcement.
    So, I want to commend the FBI agents involved for their
    professionalism and for their commitment to seeking justice.
        I wanted to just--a lot of things have been discussed in
    this Committee, including the ``Going Dark,'' the encryption
    issue, and I just want to make sure that I have clarity on this
    and maybe help other people clarify it for them.
        Basically, tell me if I heard you right, that a terrorist
    in the United States could--that there is--is there a
    distinction between--there are two distinct but related
    concerns that law enforcement has about encryption concerning
    information sought by law enforcement is on an encrypted
    device--we are talking about the phone--and the concern that
    encrypted--that the information might exist within an encrypted
    app on that phone. And so, some of these apps are available
    freely online and add an extra layer of encryption.
        Can you speak to the Bureau's concerns related to these
    issues? You're basically saying that there sort of are two
    layers, and if you get rid of the first layer, you'll have
    more--I mean, you'll obviously be--it will be a great deal more
    people that won't be caught up or that won't have that
    encryption? Is that what you are saying?
        Director Comey. I think what has changed--encryption has
    always been available, always been available to the
    sophisticated user, ``always'' meaning for decades. What
    changed over the last 2 years is encryption went from available
    to being the default, and so now, with some of the leading
    phones in the United States, that phone is encrypted by
    default. So, if we recover it at a crime scene, with a judge's
    search warrant order we cannot open it. It has been designed
    that way.
        Senator Franken. And I know you are not asking for a key.
    You are asking for the company to be able to follow the judge's
    order.
        Director Comey. Right, which they could do--2 years ago
    they could do it and did it routinely, and I think their
    devices were still considered pretty secure. But you're exactly
    right. There may still be within that device, especially for
    sophisticated users, other encryption tools that are on
    particular apps, or there is actually something too
    complicated----
        Senator Franken. Can we get some data on this? I mean--the
    last time we looked at this, this Committee looked at this, we
    had Deputy Attorney General Yates, and I asked her for more
    information about the scope of law enforcement's concern,
    because I know there's a lot of this is about just normal crime
    and not about terrorism. And I think what you're suggesting is
    that a terrorist might be able to get that app, that's why--
    that foreign app, and that's why we need an international
    agreement on this. Right?
        Director Comey. Yes, you are exactly right. This is mostly
    a local law enforcement issue. But we are gathering the data
    that you asked for, and I'll have to get back to you on exactly
    when we are going to get it to you.
        Senator Franken. And I know that you have mentioned it.
        Director Comey. Yes.
        Senator Franken. Okay. I want to make sure I am clear on
    something else from this testimony. I'm just sort of reviewing
    the whole day for myself. I understand if someone on a
    terrorist--terrorist watchlist tries to buy a gun through a
    licensed dealer, the FBI is alerted.
        Director Comey. Correct.
        Senator Franken. And it can delay the sale for 3 days?
        Director Comey. Under the law, we are allowed up to 3 days.
        Senator Franken. So, okay. But ultimately do you have legal
    authority to deny the sale?
        Director Comey. Not unless there is another prohibitor
    under the law, felon or mental defective----
        Senator Franken. Well, at least you have that 3 days.
        Director Comey. Yes.
        Senator Franken. If someone on a terrorist watchlist--this
    is someone on a terrorist watchlist. In 3 days, if there is no
    other indicator, they can get their gun. That to me is a
    problem.
        Now, if someone on a terrorist watchlist tries to buy a gun
    online or at a gun show, no one is legally required to notify
    the FBI.
        Director Comey. I believe that is correct, yes.
        Senator Franken. Okay, so I have that correct.
        So, to fix this, if we're talking about keeping guns out of
    the hands of terrorists, and presumably people on the No Watch
    List are there for a reason, or maybe there is a false
    positive, but it would seem to me that we would have to be
    doing both. Having--if we are really interested in keeping guns
    from terrorists, we would have to enforce both--say you can't
    sell a gun to someone--or there has to be 3 days or some kind
    of look at that person, and also the gun--the gun sale, the
    sale at a gun show, the gun show loophole would have to be
    solved, too. I mean, in other words, if we're worried about
    guns falling into the hands of people on terrorist watchlists,
    we also have to close up the gun show loophole as well as
    cleaning up this loophole, which is the terrorist watch
    loophole. In other words, this is a reason to do both in--let
    me put it this way--you don't have to answer. This is the
    reason to do both.
        Okay. Thank you.
        Chairman Grassley. Senator Perdue.
        Senator Perdue. Thank you, Mr. Chairman.
        Director, we are lucky to have you. Thank you for the
    sacrifice you make in doing what you do. I'm glad you are on
    the wall.
        I would like to go back and clear up just to make sure I
    understood the testimony today as well. I applaud the FBI for
    being the first to call this an act of terrorism--not that I
    want it to be an act of terrorism, of course, but you guys
    looked at the facts and said the American public needs to know
    the facts. Thank you for that.
        But I am a little confused. An act of terrorism, I haven't
    heard today it connected directly to ISIS. At this point, I
    know in this environment you may not be able to talk about
    that, and if not, that is fine. Can you talk about that? Do we
    have evidence that this was directly connected to ISIS
    influence in the U.S.?
        Director Comey. There is some indication that they were at
    least, in part, inspired by ISIL, so yes. We're trying to sort
    out what other contributions might there have been to their
    motivation, and we may never fully sort it out because human
    motivation is hard. But at least, in part, we see an ISIL
    inspiration.
        Senator Perdue. And you may not want to comment on this
    either, and I apologize for asking these direct questions. But
    in the past, just for the American people and for Congress, the
    FBI has been a stalwart in helping to protect the American
    people over time. In the past and on your watch, are you aware
    of planned attempts that have actually been preempted by the
    FBI that we may never know about.
        Director Comey. Yes, many.
        Senator Perdue. Okay. Thank you.
        In speaking to the increase in the latest spate of ISIS
    attacks, is their planning getting better? Are their tactics
    getting better? Are there networks expanding? I know that the
    Malik and Farook team bought their weapons through a neighbor.
    My question is, is there a network issue here? And are the
    networks growing in the U.S.?
        Director Comey. We are looking at, obviously, in San
    Bernardino to see was there anybody else involved in assisting
    them, and so separate from San Bernardino, we have not seen
    this, we have not seen ISIL cells or networks in the United
    States. So far as we can tell, they have not succeeded in
    penetrating our borders with their operatives. That's an
    aspiration of theirs. We have got to worry about it all day
    every day. But, instead, what they're doing is motivating
    individuals or very, very small groups of people to commit
    murder on their behalf. That is the crowdsourcing phenomenon we
    have been dealing with.
        Senator Perdue. Thank you.
        Can you confirm that ISIS adherents have attempted to gain
    access through the refugee--refugee resettlement program? Do we
    actually have cases where through the resettlement--I think
    there are 2,200 people or so that have come in so far, and
    we're trying to bring another 10,000 in the first phase of
    this. Have we actually had cases where we have identified ISIS
    adherents in that first group?
        Director Comey. Not to my knowledge.
        Senator Perdue. Are you aware that Canada is increasing
    their Syrian refugee acceptance rate from less than 5,000 to
    over 25,000, the latest number I saw? And with the border that
    we have with Canada--we don't talk about that border much--is
    the FBI aware of that, or are they paying attention to that
    relative to what we need to do? To me that vetting in Canada--
    and Canada is just as important as our own vetting here with
    our K1 and our Visa Waiver Program.
        Director Comey. And they get that. The head of the RCMP is
    a friend and colleague of mine. He called me to tell me that
    their government had made that decision and to explain and to
    encourage us to work together to vet those people.
        Senator Perdue. And what changes would you like to see in
    the K1--with Malik, was she actually given an interview in the
    K1 process, do you know? Or do we know that?
        Director Comey. I do not know well enough to say at this
    point.
        Senator Perdue. Okay.
        Director Comey. I know the process requires it. We are
    still trying to fully understand exactly all of her contacts.
        Senator Perdue. Are there changes you would like to see,
    the FBI would like to see in the K1 program or in the Visa
    Waiver Program?
        Director Comey. I don't know enough yet to say as a result
    of this case.
        Senator Perdue. Okay. And the last thing, very quickly, in
    the Trans-Pacific Partnership there is language in there that
    would prevent national laws being implemented in countries that
    would require manufacturers to provide access to products'
    encryption technologies. Some critics think that that would
    limit our own ability to provide legislation that would give
    you a solution to the potential ``Go Dark'' solution. Does the
    FBI have a point of view on that yet?
        Director Comey. We don't.
        Senator Perdue. Okay. Thank you, Mr. Chairman. Thank you,
    Director.
        Chairman Grassley. Next is Senator Blumenthal and then
    Senator Coons, and if you can stand me for 7 more minutes, I
    have a second round of questions.
        Senator Blumenthal. Thanks, Mr. Chairman, and thank you,
    Director Comey, for your excellent work and your great service
    to our country. Thank you to your family and most especially to
    your wife, Patrice, who has done so much for the children of
    Connecticut and now for others around our country. I have just
    come from----
        Chairman Grassley. She is from Iowa, too.
        Senator Blumenthal. Thank you, Mr. Chairman, for that
    correction.
        [Laughter.]
        I have just come from a hearing at the Armed Services
    Committee where Secretary Carter was testifying, and I want to
    first make the point that we often thank our men and women in
    uniform, which I do readily and repeatedly, and I do again now.
    But I also want to thank the very brave men and women who work
    under your command, who enforce our laws and help to keep us
    safe, along with all of our law enforcement men and women
    around the country, police at every level, and are in a sense
    also at war.
        In fact, Secretary Carter said, and I'm quoting, talking
    about ISIL, ``The reality is we are at war. That's how our
    troops feel about it because they are taking the fight to ISIL
    every day, applying the might of the finest fighting force the
    world has ever known.''
        Do you feel that we are at war also within our borders
    against forces of terror that are linked to those forces abroad
    that our men and women in uniform are fighting?
        Director Comey. Very much, Senator, and our people feel
    that passionately. Our people are tired, and we are working
    very, very hard. They're working very, very hard. But what
    motivates them is these people want to kill our people, and we
    are at war with these people. And so, stopping them is what--is
    the reason we do this work.
        Senator Blumenthal. And the President well identified this
    new phase that perhaps is an old phase in larger scale, the
    phase of ISIL and ISIS reaching outside the theaters where they
    have fought so far, reaching into this country. You have
    referred to crowdsourcing as the San Bernardino experience, and
    outsourcing that threat to new recruits, to homegrown radicals,
    may be part of the threat here. But you would agree that we
    face a war every bit as dire and dangerous here at home as we
    do abroad.
        Director Comey. Yes. The threat obviously and the density
    of these savages is less here in the United States, but the
    nature of it is very similar.
        Senator Blumenthal. And I know that you've responded about
    the importance of cooperation in terms of information and other
    kinds of assistance that is provided by members of the Muslim
    community, just as cooperation and support is essential from
    nations that have a majority of Muslims abroad in our fight
    against ISIS and ISIL. They are our natural allies and friends
    and partners in this fight against extremist terrorism and
    violence abroad. And I want to ask you about some of the
    statements that are made about closing borders and about
    religious tests at our borders, other kinds of religious tests
    that, in my view, are unconstitutional, but also strike me as
    unwise because we need that cooperation.
        Are the statements themselves potentially inhibiting that
    kind of cooperation and support and help that we need?
        Director Comey. Thank you, Senator. I don't want to comment
    on anybody's statements, but I can make, I think, the point
    that you are interested in. ISIL is trying to recruit--recruit
    in Muslim communities. They are trying to motivate people who
    may be of the Muslim faith who are unmoored in some way to
    become part of their poisonous endeavor. The people who so
    often tell us about people like that are other Muslims who help
    us, and so we've worked so hard over the last 15 years to build
    relationships of trust that allow us to find out who might be
    trouble and to stop it. That's in everybody's interest. And
    anything that gets in the way, that erodes that relationship of
    trust, is not a good thing.
        Senator Blumenthal. And Muslims who live in our Nation are
    fellow Americans, many of them, equally interested in
    preventing threats and violence, as any one of any religion.
        Director Comey. Our experience, they are--what is wonderful
    about this country is we are incredibly diverse. They are part
    of that diverse polyglot, and they love our country, which is
    why they help us when there is a killer in their midst or
    someone on the path to being a killer in their midst. We have
    to continue this. As I said at the beginning, we are all in
    this together. We need each other.
        Senator Blumenthal. I applaud your very clear and emphatic,
    unequivocal statement about that point.
        I want to shift to another terrorist act, at least one that
    strikes terror, not of the same motivation but involving the
    apparent racist-motivated violence in Charleston. The FBI
    background system known as NICS was applied in the case of
    Dylann Roof's purchase, but only too late to prevent him from
    buying a gun. The 72-hour loophole that I have tried to close
    enabled him to walk away with a gun that he sought to purchase.
    Thanks to that loophole, after the 72-hour period, since the
    background check was not completed but would have precluded him
    from buying a gun, he was enabled to have that firearm. Gun
    retailers have sold 15,729 guns in the last 5 years to
    individuals who were not legally allowed to purchase them, and
    about 5 months ago, I think, you commissioned a study that was
    to last 30 days to examine how Dylann Roof was able to buy that
    gun. I think that report would help us in Congress to
    understand what went wrong and how to fix it, and most
    especially, if the 72-hour loophole enabled him to buy that
    gun, as appears to be from the facts that we have been told so
    far, the report would be very helpful.
        So, my question is: Can you update us as to the status of
    that report?
        Director Comey. Certainly, Senator, and we would be happy
    to get you a detailed briefing on it, because the work was
    done, as I asked, in 30 days, and it did two things: It
    confirmed the facts as we understood them close to the murders
    in Charleston, that there was a mistake made by our processing
    clerks that was compounded by a mistake in the records of the
    South Carolina jurisdiction where he would have been--where the
    prohibitor came from. And so that confirmed what we knew. What
    it most importantly told us is how can we get better.
        The law is what the law is. We have 3 days to process these
    thousands and thousands and thousands of them, and so we are
    working on a number of things to get better: one, to improve
    the records that are put in by State and locals, to improve our
    technology, and to surge resources. The number of gun purchases
    continues to climb. It has climbed dramatically in the last
    week. We have got to make sure we have enough folks--if all we
    have is 3 days, we have got to make sure we have enough folks
    to do that. And so, those are the three buckets: better
    records, better technology, and more importantly, more human
    beings on the phones to process them more quickly.
        Senator Blumenthal. So, resources are really important,
    resources in technology, resources in people, and resources in
    records that you depend on because many of them come from State
    and local authorities as well.
        Director Comey. Correct.
        Senator Blumenthal. My time has expired. This whole area is
    tremendously important. I want to thank you for being here
    today, and just to clarify, racial and religious supremacists
    often use terrorist-type tactics, even though we would not call
    them ``terrorists'' today. But I appreciate the attention that
    you are giving to the potentially white supremacist-motivated
    acts of violence in that church in Charleston. Thank you.
        Chairman Grassley. Senator Coons.
        Senator Coons. Thank you, Chairman Grassley, and thank you,
    Director Comey, for your service and for your testimony before
    this Committee today.
        I was very pleased to see in your testimony before the
    Committee a focus on the Violence Reduction Network, a
    Department of Justice initiative that is truly helping a group
    of now ten smaller cities, like my home town of Wilmington,
    Delaware, that have seen a dramatic rise in violent crime and
    in homicides. We are, sadly, on track for a record year of
    shootings and homicides, and I am grateful for your focus and
    for the FBI's focus on providing technical and investigatory
    resources to help State and local law enforcement deal with
    this rise in violent crime in a few cities and to learn from
    the policing examples of other communities and Federal agencies
    that have real knowledge about how to better deploy
    investigatory resources.
        So, tell me, if you would, how we can better support
    valuable programs like the VRN and how, in your view, it's been
    most effective in connecting FBI resources to cities like
    Wilmington, Delaware.
        Director Comey. I will start with the effectiveness point
    first. I think what makes it special is we bring together in a
    place like Wilmington everybody who cares about this issue or
    might have a specialty that is useful, and where I think we can
    bring a lot to bear is our understanding of technology and our
    analytic resources so that we help a local jurisdiction
    understand what is the pattern, what is the trend, and what are
    the pieces of information that we can lawfully gather that
    would be useful to you in focusing on, because it is almost
    always small groups of predators, finding them and ripping them
    out of the community. And that is a--it's not rocket science,
    but it often brings rocket science--rocket scientists to the
    fight in a really important way.
        I think the way you can support it is, as you just did,
    talking about its value and making sure that appropriators and
    others understand that when the Department talks about this, it
    is making a difference.
        Senator Coons. Thank you. I am an appropriator on the
    relevant Subcommittee and have advocated for it with the head
    of OMB and the Attorney General, but would be grateful for any
    other advice or insight you would care to offer about how we
    can sustain it, make it more effective. Certainly, the work to
    reduce violent crime is far from over in my home town and in
    the 9 other cities around the country, and I am hopeful we will
    sustain this program until we see some significant reduction in
    violent crime.
        I would like to mention another issue, if I could, about
    cybersecurity. The Senate recently passed the Cybersecurity
    Sharing Information Act which permits DHS to scrub personally
    identifying information it receives from private entities, but
    only after it secures the approval of a number of agency heads,
    including yourself in your role as Director of the FBI.
        Have you had any communications with other agencies yet
    about how this process will work? And are you committed to
    ensuring that DHS can actually conduct a robust scrubbing of
    personally identifying information?
        Director Comey. I haven't had any conversations about that,
    but the second part is easy. We'll do everything possible to
    make sure that it works and works the way Congress designed it.
        Senator Coons. Well, thank you. I would urge you to engage
    in those conversations. I think this process is going to move
    relatively quickly, or so I hope.
        In October, President Obama secured from President Xi of
    China a striking landmark admission that China had been engaged
    in economic espionage, cyber attacks--that is something you
    have testified about here before--and a commitment that those
    attacks would end. Yet press reports suggest that literally a
    day after President Xi's visit, Chinese cyber attacks resumed.
        Has the FBI detected any change in Chinese cyber espionage
    behavior following President Xi's promise? And what do you
    recommend in terms of action by the Senate to try and address
    this ongoing challenge to our Nation's innovation and
    inventions?
        Director Comey. It's too early to say. We're watching it
    very, very carefully. Given the long-tail nature of Chinese
    cyber espionage and theft, even if--I'm not sure that I would
    expect a change, even if one was going to happen, that would be
    visible yet. And so, we are watching the space very carefully.
    We have had good conversations with our Chinese counterparts. I
    have told them I do not mean to be rude, but the FBI Director
    is paid to be skeptical. I am deeply skeptical. And so, we will
    have to watch and see what the facts show us, but I cannot say
    yet.
        Senator Coons. I think it is deeply disturbing and hostile
    behavior that we need to continue to be engaged. I have heard
    from far too many American companies that they have lost vital
    both economic secrets and from some Federal agencies that
    they've lost vital national security secrets, and I appreciate
    your hard work on this.
        Last, I am the Ranking Member of the Oversight
    Subcommittee, and last month we held a hearing at which DeKalb
    County Police Chief Cedric Alexander, who is himself a 30-year
    law enforcement veteran, testified that the notion that there
    is a so-called Ferguson effect is of no real significance. I
    was struck at that hearing, which Chairman Cruz called under
    the title ``A War on Police,'' that that hearing actually
    produced no evidence that there is any meaningful organized war
    on police. And as the Co-Chair of the Senate Law Enforcement
    Caucus, I know that law enforcement faces real challenges
    nationally every day, but I see little evidence to suggest that
    these issues stem from the calls of some in the civil rights
    community for greater accountability. In fact, my experience at
    the local level was that police officers are some of the
    greatest advocates for accountability because it makes them
    more effective police officers.
        So, is it your view that the protection of American civil
    rights is actually inconsistent with good policing and officer
    safety? Or do you see them as being fundamentally in harmony?
        Director Comey. Oh, they are fundamentally in harmony.
    Scrutiny and oversight and accountability are good for
    everybody, law enforcement and non-law enforcement.
        Senator Coons. Well, thank you, Director. It's my view that
    in a democracy the enormous power that we give to law
    enforcement and the very high expectations we have for them are
    only strengthened by accountability that then produces
    community engagement, community support. The agency I was
    fortunate enough to be closely associated with for a decade
    really was an early national leader in community policing and
    did, I think, an outstanding job at winning the trust of our
    community and, thus, being effective at policing. And, I think,
    there is a lot of work to go in terms of accountability and
    engagement and protecting civil rights, but I appreciate your
    response on all four of the questions I have asked today, and I
    am grateful for your service. Thank you, Director.
        Director Comey. Thank you, Senator.
        Chairman Grassley. I have got three questions I would like
    to ask, and then I assume everybody has asked questions once
    and that nobody will come back.
        I want to start by underlining what Senator Cornyn said
    about the Clinton email investigation. Almost 1,000 emails
    contained classified information were transmitted through and
    stored in the non-Government server system. A former IT
    specialist at the State Department who also managed the private
    server has avoided this Committee's questions by relying on the
    Fifth Amendment right of self-incrimination. And in the course
    of the FBI's investigation, there might come a time when it
    refers the matter to the Department of Justice for prosecution
    of some of the individuals involved.
        But as you know, no matter what the FBI finds, a political
    appointee at the Justice Department will ultimately make the
    decision of whether or not to prosecute. That's why some have
    called for a special counsel to be appointed for an independent
    decision.
        So, my question is, if the FBI refers the matter to the
    Justice Department but the Justice Department refuses to
    prosecute, the public will not learn the facts that the FBI
    independently inquiry established. So, would there be a process
    by which you would inform the public of what the FBI learned
    and what you will do if the decision not to prosecute appears
    to be improperly influenced by political considerations?
        Director Comey. Mr. Chairman, I am not comfortable
    answering a question about what might happen in that particular
    matter. I think it's important that I am--I'm making sure it
    has the right resources, the right people, and it's done in an
    expeditious, fair, and competent way. I don't want to speculate
    and go down that road, if I could.
        Chairman Grassley. Could I remind you that in the anthrax
    case, after the person that was suspected committed suicide,
    the FBI did make that investigation public? So, wouldn't there
    be a precedent for you making your investigation public?
        Director Comey. There is a variety of precedents for
    investigations, describing some or all of it to the public. I
    just don't want to start to speculate on this particular
    investigation.
        Chairman Grassley. Okay. State Department officials--along
    the same lines, State Department officials have informed my
    staff that the FBI has seized or taken possession of the State
    Department computer used by the witness who is asserting the
    Fifth Amendment to this Committee. There has also been a public
    report that the FBI has taken possession of State Department
    email servers. Is that correct? Has the FBI seized or taken
    possession of these State Department computers?
        Director Comey. I can't comment on that given that it is an
    ongoing matter.
        Chairman Grassley. I'm not really asking you what it
    serves. I am just asking you, do you have these tools
    available?
        Director Comey. Well, if I were to answer, I would be
    answering about what evidence we have gathered in an
    investigation. I can assure you----
        Chairman Grassley. You don't need to go any further.
        Director Comey. Okay.
        Chairman Grassley. I trust you. The American people rely
    upon you to investigate potential criminal conduct, and in the
    course of that conduct, politics cannot interfere with your
    responsibilities. In a ``60 Minutes'' interview, President
    Obama declared in response to a question about Secretary
    Clinton's use of a private server, quote, ``I can tell you that
    this is not a situation in which America's national security
    was endangered,'' end of quote. How can you assure the American
    people that you will not let the White House influence the
    FBI's inquiry?
        Director Comey. I hope that the American people know the
    FBI well enough and the nature and character of this
    organization to know, as I have said many times, we don't give
    a rip about politics. Anybody's view of that investigation they
    are not involved in is irrelevant. We care about finding out
    what is true and doing that in a competent, honest, and
    independent way. I promise you that is the way we conduct
    ourselves.
        Chairman Grassley. Okay. Nowc, I would like to discuss
    whistleblowers, and the second of at least three questions I
    would like to ask you.
        In your confirmation hearing, you expressed strong support
    for whistleblowers and the need for them to feel free to raise
    their concerns up their chain of command. FBI policy encourages
    employees to report wrongdoing to their supervisors. First
    question, do you support legal protections for FBI employees
    who follow FBI's own policies and report wrongdoing to their
    supervisors? If not, why not?
        Director Comey. I do, very much.
        Chairman Grassley. Okay. Under current law, FBI agents have
    no legal protection for reporting wrongdoing to their
    supervisors. Do you see any justification for not fixing that
    problem?
        Director Comey. I think it is very, very important that we
    create the safe zones that all of our people need to raise
    concerns that they might have. And so, that is the way I not
    only talk; that is the way I walk at the FBI. And I know that
    we are having conversations about are there additional
    protections we can offer. I think there might be sensible ways
    to do that. I have some small concerns. I want to make sure
    that we don't create a system where, to get too deep into the
    weeds here, an FBI agent or FBI employee can report not just
    fraud, waste, and abuse, but can get whistleblower protection
    for reporting bad management. That is potentially a huge range
    of things, so I want to be thoughtful about what we're
    considering whistleblowing as we do this. But I am open to try
    and improve the way we approach it.
        As I said, I have tried to really walk this talk by the way
    I have acted, the people I have met with, the way I have given
    out awards in the FBI. And so, I will continue to work with you
    to try and improve that.
        Chairman Grassley. You've spoken repeatedly about ISIS'
    sophisticated and successful use of the internet to lure
    Americans to Syria and to inspire tacts--tactics in the United
    States. This is very concerning, and I know you speak from your
    heart on that.
        Other than addressing the problem by encryption, are there
    any other tools that would help the FBI identify and monitor
    terrorists online? More specifically, can you explain what
    electronic communications and transactional records, or ECTR, I
    think that is referred to as an acronym, are and how Congress
    accidentally limited the FBI's ability to obtain them--obtain
    them or drafting them? Would fixing this problem be helpful for
    your counterterrorism investigations?
        Director Comey. It would be enormously helpful. There is
    essentially a typo in the law that was passed a number of years
    ago that requires us to get records, ordinary transaction
    records that we can get in most contexts with a non-court order
    because it doesn't involve content of any kind, to go to the
    FISA Court to get a court order to get these records. Nobody
    intended that. Nobody I've heard thinks that is necessary. It
    would save us a tremendous amount of work hours if we could fix
    that, without any compromise to anyone's civil liberties or
    civil rights. Everybody who has stared at this has said that is
    actually a mistake, we should fix that.
        Chairman Grassley. Yes. This will be my last question.
    I've--you heard my concerns about noncitizens who are not legal
    permanent residents buying and possessing guns in this
    country--if you want me to ask this, then I am not going to ask
    this other question. Let me go to this question.
        In regard to your last response, you said you try to walk
    the talk on this. So, why hasn't the FBI imposed discipline in
    any of some cases that I have been investigating? What message
    does it send to FBI employees when the FBI fails to hold
    retaliators accountable for their actions? That will be my last
    question.
        Director Comey. That's a good question and a hard question.
    I believe we do work very hard to try and hold retaliators
    accountable. Each case--the challenge of answering it in the
    abstract level is each case has to be looked at individually.
    So, I do think that we work very hard to try and hold people
    accountable.
        Now, often when people know we are coming for them, they
    will retire on us and leave Government service, which is a
    challenge. But it is not just that enforcement that matters.
    It's how do we act, how do we conduct ourselves. And I don't
    want to brag on myself, but I will for a second. We have Annual
    Directors Awards, and at the end of the Directors Awards this
    year, I gave an award to recognize somebody for blowing the
    whistle on misconduct. And I went back to the podium, and I
    said, ``This matters. The reason I am saving this one for last
    is this matters. We are an organization dedicated to finding
    the truth in American life. We have to make sure we are open to
    seeing the truth about ourselves.''
        So, look, we're not perfect, and I think we can benefit
    from working with you to get better. But I believe we have sent
    the message this matters.
        Chairman Grassley. Listen, you have been here a long time.
    I thank you for the time you have given us. Maybe some Members
    will submit questions for answer in writing. I may even do that
    myself. I hope you will respond appropriately and as quickly as
    you can. Thank you very much for your service.
        Director Comey. Thank you, Senator.
        [Whereupon, at 12:50 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]
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