[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
FIXING FISA: HOW A LAW DESIGNED TO
PROTECT AMERICANS HAS BEEN
WEAPONIZED AGAINST THEM
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME AND FEDERAL GOVERNMENT SURVEILLANCE
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
THURSDAY, APRIL 27, 2023
__________
Serial No. 118-18
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
52-124 WASHINGTON : 2023
COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JERROLD NADLER, New York, Ranking
KEN BUCK, Colorado Member
MATT GAETZ, Florida ZOE LOFGREN, California
MIKE JOHNSON, Louisiana SHEILA JACKSON LEE, Texas
ANDY BIGGS, Arizona STEVE COHEN, Tennessee
TOM McCLINTOCK, California HENRY C. ``HANK'' JOHNSON, Jr.,
TOM TIFFANY, Wisconsin Georgia
THOMAS MASSIE, Kentucky ADAM SCHIFF, California
CHIP ROY, Texas DAVID N. CICILLINE, Rhode Island
DAN BISHOP, North Carolina ERIC SWALWELL, California
VICTORIA SPARTZ, Indiana TED LIEU, California
SCOTT FITZGERALD, Wisconsin PRAMILA JAYAPAL, Washington
CLIFF BENTZ, Oregon J. LUIS CORREA, California
BEN CLINE, Virginia MARY GAY SCANLON, Pennsylvania
LANCE GOODEN, Texas JOE NEGUSE, Colorado
JEFF VAN DREW, New Jersey LUCY McBATH, Georgia
TROY NEHLS, Texas MADELEINE DEAN, Pennsylvania
BARRY MOORE, Alabama VERONICA ESCOBAR, Texas
KEVIN KILEY, California DEBORAH ROSS, North Carolina
HARRIET HAGEMAN, Wyoming CORI BUSH, Missouri
NATHANIEL MORAN, Texas GLENN IVEY, Maryland
LAUREL LEE, Florida
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
------
SUBCOMMITTEE ON CRIME AND FEDERAL
GOVERNMENT SURVEILLANCE
ANDY BIGGS, Arizona, Chair
MATT GAETZ, Florida, SHEILA JACKSON LEE, Texas, Ranking
TOM TIFFANY, Wisconsin Member
TROY NEHLS, Texas LUCY McBATH, Georgia
BARRY MOORE, Alabama MADELEINE DEAN, Pennsylvania
KEVIN KILEY, California CORI BUSH, Missouri
LAUREL LEE, Florida STEVE COHEN, Tennessee
RUSSELL FRY, South Carolina DAVID N. CICILLINE, Rhode Island
CHRISTOPHER HIXON, Majority Staff Director
AMY RUTKIN, Minority Staff Director & Chief of Staff
C O N T E N T S
----------
Thursday, April 27, 2023
Page
OPENING STATEMENTS
The Honorable Andy Biggs, Chair of the Subcommittee on Crime and
Federal Government Surveillance from the State of Arizona...... 1
The Honorable Sheila Jackson Lee, Ranking Member of the
Subcommittee on Crime and Federal Government Surveillance from
the State of Texas............................................. 4
The Honorable Jerrold Nadler, Ranking Member of the Committee on
the Judiciary from the State of New York....................... 7
WITNESSES
The Honorable Michael Horowitz, Inspector General, U.S.
Department of Justice Office
Oral Testimony................................................. 9
Prepared Testimony............................................. 12
The Honorable Sharon Franklin, Chair, Privacy and Civil Liberties
Oversight Board
Oral Testimony................................................. 24
Prepared Testimony............................................. 26
The Honorable Beth Williams, Board Member, Privacy and Civil
Liberties Oversight Board
Oral Testimony................................................. 33
Prepared Testimony............................................. 35
FIXING FISA: HOW A LAW DESIGNED TO
PROTECT AMERICANS HAS BEEN WEAPONIZED AGAINST THEM
----------
Thursday, April 27, 2023
House of Representatives
Subcommittee on Crime and Federal Government Surveillance
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to notice, at 9:05 a.m., in
Room 2237, Rayburn House Office Building, Hon. Andy Biggs
[Chair of the Subcommittee] presiding.
Members present: Representatives Biggs, Jordan, Gaetz,
Tiffany, Nehls, Moore, Kiley, Lee, Fry, Jackson Lee, Nadler,
Dean, and Cicilline.
Also present: Representatives Bishop and Cline.
Mr. Biggs. The Subcommittee will come to order. Without
objection, the Chair is authorized to declare a recess at any
time. We welcome everyone to today's Hearing on the Foreign
Intelligence Surveillance Act and appreciate our witnesses
being here. I do apologize because, like you, Ms. Jackson Lee,
I was down at the Judiciary Committee room, on the floor, just
wondering where everybody was. That is the way it goes. So, I
will now recognize myself for an opening statement.
I welcome my colleagues to this important hearing and I
want to welcome our witnesses. Thank you for being here.
FISA, the Foreign Intelligence Surveillance Act, has shown
to be a powerful tool for United States intelligence, but the
United States intelligence community has shown they cannot be
fully trusted to retain this vast power. In fact, I cannot
think of an example of when a powerful intelligence tool was
not abused in the United States in this way. When we give power
to the Federal government, the Federal government has abused
that power seemingly every time.
In my experience, we have a saying that when a man gets
power, thinks that they have power, they almost always tend to
abuse it. I think that is the case here.
President Obama's IRS had to apologize after targeting
conservatives. President Biden's DOJ targets Catholics and
characterizes worshippers as adhering to a radical traditional
Catholic ideology.
Just last week, the Judiciary Committee learned that the
Biden campaign, without any governmental power, peddled a
conspiracy theory that the Hunter Biden laptop was Russian
disinformation to effect the outcome of an election. They did
this without FISA.
A former CIA official testified to this Weaponization
Committee that then Biden campaign senior advisor, now
Secretary of State Antony Blinken, played a role in the
inception of the public statement signed by the current and
past intelligence officials that claim that the Hunter Biden
laptop was part of a Russian disinformation campaign.
A Twitter user was just sentenced for up to 10 years for
election interference for tweeting a meme, a joke, that fewer
than 5,000 people saw or believed. How many people believe this
election effort in the Politico article,
Hunter Biden story is Russian disinfo, dozens of former intel
office officials say. More than 50 former intelligence
officials signed a letter casting doubt on the provenance of a
New York Post story on the former Vice President's son.
We want to be able to trust our intelligence community, the
officials who gather intelligence. Well, I view this now with a
great deal of skepticism. If they would lie to the free flow of
information to subvert an election and earn a top job with the
new administration without FISA, I fear that these same people
would still think they can break the rules if they retain
powerful tools like FISA. I believe they would do it, too, just
as they have done before.
In 2019, Department of Justice Inspector General Michael
Horowitz, who is one of our witnesses today, exposed the extent
to which President Obama's FBI violated its authorities under
FISA using FISA as a pretext to illegally spy on Trump campaign
associates in an attempt to affect another election. They
weren't as successful in 2016 as they were in 2020. I remember
having private conversations with Inspector Horowitz, besides
his public testimony, and always enlightening, and I appreciate
his candor. I look forward to it today.
At that time, in his investigation, Inspector General
Horowitz analyzed a sampling of 29 applications to the FISA
Court to authorize surveillance. In 25 of them, there was
unsupported, uncorroborated, or inconsistent information in the
Woods files which are procedures for ensuring the factual
accuracy of information contained in FISA applications. The FBI
was unable to even locate the Wood files for the other four
applications.
Further review by the Inspector General revealed that the
FBI failed to recognize the significant risk posed by systemic
noncompliance with the Woods procedures. In those 29
applications which were reviewed, the Inspector General found
over 400 instances of noncompliance with the Woods procedures.
The FISA Court, the FISC, approved all 29 of those
applications.
In 2020, FBI Director Wray testified before the Committee
telling then Ranking Member Jordan that,
Jordan would not lose any sleep over the vast majority of FISA
applications and we wouldn't want to grind FISA to a halt with
more scrupulous review.
Well, I can't speak for Chair Jordan, but I actually do
lose sleep over FISA applications. I lose sleep over the 3.4
million warrantless searches of Americans' communications using
FISA Section 702; 3.4 million warrantless searches in 2021
alone, which is nearly triple the approximately 1.3 million
queries in 2020.
While reports indicate the FBI conducted fewer queries in
2022, it still made roughly 559 searches per day. That
represents, in my opinion, intelligence officials breaking the
rules 559 times per day. I lose sleep over the fact that
Section 702 information acquired without a warrant can later be
used by the FBI in criminal prosecutions unrelated to foreign
intelligence or national security. I lose sleep knowing that
the FBI has misused privileged, warrantless spying power to
conduct rogue surveillance on innocent Americans. To me, this
is not a partisan issue. I don't believe either side can
condone that.
I lose sleep knowing that these reports are only a piece of
the government's abuses of the FISA program and only the ones
that I know about.
At the end of this year, Section 702 of FISA is set to
expire. Reports in recent years have exposed the government's
and specifically, the FBI's abuse of this program. A law
designed to provide tools to collect foreign intelligence and
prevent foreign terrorist attacks has been worked into a
domestic intelligence tool to intercept and catalogue
Americans' phone calls, text messages, emails, and other
electronic communications. Unfortunately, for the intelligence
community, we have a Fourth Amendment in the United States and
I say that sarcastically. It is not unfortunate that we have a
Fourth Amendment. It is one of the great blessings that sets
the United States apart from every other nation.
As Congress considers whether to reauthorize this program,
this Committee will be at the forefront, this Subcommittee will
be at the forefront. This Subcommittee has the opportunity to
shed a light on the broad issue of warrantless, mass
surveillance and hopefully end it once and for all. We must
consider whether this program can be reformed or if it is
beyond repair.
FISA Section 702 explicitly states that it may only be used
to target non-U.S. persons located abroad for the purpose of
obtaining foreign intelligence information, but it is clear
that the government has used communications acquired through
this program to conduct back-door searches of Americans'
communications.
For years now, I have called for serious reform or even
full repeal of FISA, but the Federal intelligence community,
even Members of Congress, have attempted to scare us to make us
believe that these unchecked powers are the only method
available to protect our Nation from harm. Well, every American
should be concerned to know Federal agents are spying on them,
even if you have nothing to hide.
We need to prohibit warrantless surveillance of Americans
and hold accountable any Federal official who violates the
civil liberties of Americans. I wonder how much longer we must
watch the FBI brazenly spy on Americans before we start
stripping it of its unchecked authority. Make no mistake,
actors within the FBI and other similar Federal agencies will
continue to conduct unlawful and unconstitutional surveillance
of Americans.
While there are political examples of abuse of intelligence
agencies to affect elections, this is not a political issue. It
is not a partisan issue. I hope that this issue has the
potential to be a rare bipartisan effort in this Congress to
protect the rights of Americans. I know I have talked to some
of my colleagues across the aisle who have similar views as I
do and I look forward to working with them to either fix or end
these abuses.
I thank again our witnesses for being here and look forward
to hearing your testimony today and with that, I will yield
back and recognize the distinguished Ranking Member, the
gentlelady from Texas, Ms. Jackson Lee.
Ms. Jackson Lee. Good morning, Mr. Chair, and thank you
very much. Thank you to the Members who are present here today
and thank you to the witnesses who are likewise present here
today.
I realize that today we are speaking of fixing FISA. I hope
it is in reference to many aspects of what we have seen
particularly in the September 2021 report. We have found that
there are fixes that can go across administrations, across
investigations, and our responsibility is to be the oversight
board, if you will, for the American people.
Having been here since 9/11, and recognizing the terror we
felt and the immediacy of concern, but this Committee, working
with our Chair and other Members of the Committee, made sure
that we likewise protected the American people in the
legislation that we passed at that time. In fact, we had to
redo it, in essence, to ensure the protection of the American
people. So, I know that we are talking about and should be
talking about a law that is designed to enhance America's
national security.
Let's be very clear. I take issue with my good friend's
assessment of the weaponization of this particular tool. We
must, in fact, find a way as we did previously in a bipartisan
manner to deal with the tool that we use for individuals that
are non-U.S. persons and who happen to be abroad.
Let me be clear, as well, that if we are specifically
looking at the contact between the 2016 Trump campaign and
surveillance of Carter Page, a former campaign advisor, we know
that this was under Title 1 of FISA, not under 702. So, we need
to recognize the broad base of the needs of national security.
I am about to mention as I begin my remarks the airman, the
National Guard Airman that has brought at least personal terror
to me. It is not a 702 case, but we will need the tools of
investigation to ensure, as we are now learning, that there may
be overseas connections to investigate the horror of a young
airman of being able to access the highest level of national
secrets in this country. We are not looking at that today. I
think that is an appropriate review. If it deals with tools
that the FBI may ultimately have to use. I, for one, certainly
hope that justice is rendered and that the gentleman faces
sufficient punishment to know that this is not something that
you fool with.
Today, we should be looking at not fooling with America's
security and doing it in the right way and ensuring that the
tools are stood up and that they are stood up right.
So, I thank you for convening today's hearing on the
Foreign Intelligence Surveillance Act. As the important and
sometimes controversial Section 702 of FISA is set to sunset
this year, hearings before this Subcommittee will be critical
to sorting out the record of privacy compliance by the
intelligence community during this last reauthorization period.
I expect that today's witnesses will offer us insight on
the performance of the intelligence visions under Section 702
and be distinctive, distinctive in what we are talking about
here today. We are not on a fishing expedition today. Maybe it
will be necessary forthright, but under Section 702 and
compliance efforts implemented in recent years to ensure that
U.S. persons are not needlessly swept into our international
surveillance web. The Foreign Intelligence Surveillance Act was
passed in 1978 to curb abuses in the collection and use
intelligence information, foreign and domestic. Under the
original provision of FISA, collection of foreign intelligence
required the government to show not only that there is probably
cause to believe the target of intelligence surveillance is an
agent of a foreign power, but also that foreign intelligence
gathering is a primary purpose of the collection.
As I indicated when we had to take a look at this under the
USA Patriot Act 2001 and the aftermath of 9/11 and beyond, the
government need only show such probable cause and that foreign
intelligence gathering is merely a significant purpose of the
collection. That was framed around the fears of 9/11.
In the wake of 9/11, the intelligence gathering needs of
the Nation and advances in technology require the government to
devote substantial resources to obtaining court approval based
on a showing of probable cause to conduct surveillance against
terrorists located overseas.
Witnesses before this Committee testified that these
standards frustrated intelligence gathering and stated that the
intelligence community was collecting only approximately two
thirds of the foreign intelligence information. That was
collected prior to legal interpretations that required the
government to obtain individualized FISA Court-ordered or
overseas surveillance.
In response to this situation and the evolution of
technology, Congress enacted the FISA Amendments Act of 2008.
The FAA authorized the government to collect massive amounts of
information through the targeted surveillance of foreign
persons reasonably believed to be outside of the United States
without a warrant. With such massive amounts of information
being collected invariably, information involving U.S. persons
in the U.S. whose information is not constitutionally subjected
to targeting might be collected.
However, the statute includes protection for U.S. persons
who may be on the other end of these communications. The FAA
requires intelligence agencies to design targeting procedures
which limit the scope of collection before the government acts
and minimalization [sic] of procedures which limit the use of
information about U.S. persons after the government
incidentally collects the information, rightly so for the
American people's protection.
The Foreign Intelligence Surveillance Court reviews these
procedures for legal sufficiency. The FISA Court is
indispensable and must play a meaningful role in ensuring
compliance with the law and Congress must have regular access
to information about the extent to U.S. communications being
collected and the authority to require of U.S. persons are
being scooped up through the surveillance of a target. That is
crucial to fit into our constitutional infrastructure.
The intelligence community reports that it adheres to both
the letter and the spirit of the law. So, remember, with nearly
all this oversight conducted in secret, the public has no
choice, but to take the government at its word and that is why
we are here today in an open, nonclassified briefing and
hearing. With the war in Ukraine and other political
instability around the globe, we clearly live in unstable times
requiring our intelligence community to maximize its resources
to keep America safe from threats both foreign and domestic.
America and its allies face continuous national security
threats from foreign nations and terrorist organizations,
foreign agents from rival nations continue to spy on the United
States and Al-Qaeda and other terrorist networks continue to
plot attacks against America. America's security cannot be
guaranteed at the border alone and I am reminded of my early
remarks about the young airman.
Congress must ensure that our national security agencies
are able to gather foreign intelligence information from
foreign terrorists and nation states, so that we can stop
threats before they reach our shores. It is clear that FISA and
Section 702 have proven successful in achieving this goal, but
as we consider reauthorization, we must also ensure that the
constitutional right of U.S. persons are not compromised in the
process. The objective is any authorized program of foreign
intelligence surveillance must be to ensure that American
citizens and persons in America are secure and that their
persons, papers, effects while making terrorists everywhere
else in the world insecure.
Finally, the best way to achieve these dual goals is to
follow the rule of law and the exclusive law to follow with
respect to authorization authorizing foreign surveillance
gathering on U.S. soil is FISA which can, and should be
modernized to accommodate new technologies. Therefore, as we
consider reauthorization of Section 702, we must examine the
existing privacy safeguards and consider further modification
to ensure Americans' constitutional rights are protected as we
have done in previous years.
In 2015, Congress enjoyed a great deal of success working
together to pass the USA Freedom Act that created a new program
for the targeted collection of telephone metadata, while
providing greater privacy in civil liberties protections for
Americans, expanding existing Congressional oversight for
businesses, and creating greater transparency of the Nation's
security programs operated under FISA. At that time, we
demonstrated that we can build consensus around our common
values, both in this Committee and on the House floor. Among
those values are a dedication to privacy, transparency, and
protection from unreasonable searches.
Mr. Chair, we have a similar opportunity before us again as
we discuss ways in which we can craft and reach an authority
that serves the Government's needs and respect our commitment
to protecting the cherished privacy of Americans. So,
therefore, let us work together on behalf of the American
people.
I look forward to the testimony of the witnesses, Mr.
Chair, and I yield back. Thank you for the time.
Mr. Biggs. Thank you. The gentlelady yields back. The Chair
now recognizes the Chair of the Full Committee, Mr. Jordan, for
an opening statement.
Mr. Jordan. Mr. Chair, I look forward to hearing from our
witnesses. Thanks for putting this hearing together. I yield
back.
Mr. Biggs. The gentleman yields back, and I now recognized
the Ranking Member of the entire Committee, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chair. Today, this Committee
finally gets back to the serious work of keeping Americans
safe, safe from those who seek to do us harm and safe from
those who might trample on our civil liberties in a quest to
keep our country secure no matter the cost. Section 702 of the
Foreign Intelligence Surveillance Act is scheduled to sunset on
December 31st of this year. I, myself, have never voted to
reauthorize Section 702, but I recognize that these authorities
are also important to national security especially in today's
threat environment.
I am looking forward to hearing from the expert witnesses
in today's hearing and the hearings to come. I intend to
approach the question of reauthorization this year with a
cautious, but open mind, toward reform.
Since FISA Section 702 was last reauthorized in January
2018, the surveillance landscape has considerably evolved. Five
years later, on the other end of the pandemic, our on-line
communications represent an even broader reflection of our
daily lives. Under an authority as powerful as Section 702,
even if the intelligence agencies are not targeting us
directly, the government is sweeping up records of our banking,
our meetings, our education, and our simplest human
interactions.
Foreign State actors have also adjusted to the new way of
life. Ransomware, cyber-threats, and cyber-espionage are all
now common threats to the United States. Today, a foreign state
actor can disable a hospital's computer systems, shut down a
power grid, and steal classified national security information,
all without entering the United States.
Section 702 is one important tool our intelligence
community uses to fight these and other threats. The problem
with this authority has always been in its application. The
statutory protections on the books are simply insufficient for
protecting our civil rights and our privacy. For example,
although Section 702 authorizes only the targeting of non-U.S.
persons who are outside the United States, we know that massive
amounts of U.S. persons' data are swept up under this
programmatic surveillance.
Despite our best efforts, our intelligence agencies have
kept us largely in the dark as to how many Americans'
communications are incidentally collected every year. We know
from what reporting is available that the government has a lot
of this data and that much of it could not have been obtained
without a warrant had they tried to collect it directly.
The warrantless collection of this much data alone should
give anyone pause. Those American communications are not just
collected and set aside. They are made available to agencies
like the FBI, who can search the 702 data base for our
communications for purposes having nothing to do with national
security. These so-called back-door searches are neither
hypothetical, nor rare. Last year, the FBI used U.S. personal
identifiers to query the 702 data base nearly 3.4 million
times.
Now, the FISA Court has found that querying information
that has already been legally acquired is not considered
another search under the Fourth Amendment. Incidental
collection is not accidental collection. The government knows
at the outset that it will obtain our communications. The FBI
should not also be able to rifle through them as if they
arrived by chance.
Simply put, Congress should no longer entertain the legal
fiction that back-door searches are either constitutional or
respectful of our privacy. Nor, should we find comfort in the
FBI's track record accessing this information appropriately.
The FISA Court has repeatedly found violations at the FBI where
employees searched U.S. personal identifiers for neither
foreign intelligence nor evidence of a crime.
True, in many of those cases the court found that the
unauthorized searches were not malicious or intentional, but
rather the product of a lack of training and difficult to use
technology. I suppose we should be gratified that the rate of
these incidents appears to have dropped dramatically in the
past year. We have been tinkering with better training and
better technology for almost two decades. Moving from of a few
million violations a year to merely a few hundred thousand does
not inspire confidence.
No massive surveillance operation should be given free rein
to evade our constitutional protections. Section 702, as it
currently exists, does just that.
The question we face this year is whether changes to the
702 program can effectively protect our civil liberties. That
is not a question that can be answered in just one hearing, but
there is reason to be optimistic that Section 702 can be
changed for the better. When Congress last reauthorized this
provision in January 2018, it implemented some minor statutory
changes to improve civil liberties protection. The effects of
these changes is just beginning to be seen in DOJ querying
practices and its publication of U.S. persons query numbers
among others.
These small improvements are not new to congressional
legislation. After the Court of Justice of the European Union
struck down the U.S.-EU privacy shield in 2020, an agreement
that governed the flow of data across the Atlantic, the Biden
Administration took steps to improve, redress, and oversight of
its surveillance operations as part of negotiations for a
different data privacy agreement. These, too, were steps in the
right direction.
As we consider the merits of this program, I could caution
my colleagues against using the Federal government as a
bogeyman to prove some political point. Many of us agree that
Section 702 needs to be updated to better protect Americans'
communications, but we should also acknowledge that the
problems presented by 702 are not cabined to this
administration or to the last administration. Section 702 has
been a threat to our privacy and civil liberties for years and
to pretend otherwise does a disservice to the important
bipartisan work ahead of us.
Thank you, Mr. Chair. I look forward to hearing from our
witnesses and I yield back the balance of my time.
Mr. Biggs. I thank Mr. Nadler and I am optimistic after
hearing your positions, because I think we share a lot of the
same positions on this.
We will now introduce today's witnesses.
The Honorable Michael Horowitz. Mr. Horowitz is the
Inspector General of the Department of Justice. He oversees a
staff of more than 500 special agents, auditors, inspectors,
attorneys, and support staff tasked with deterring, detecting
waste, fraud, abuse, and misconduct in DOJ programs and
personnel. He previously served as Chair of the Council of the
Inspectors General on Integrity and Efficiency from 2015-2020.
Welcome, Inspector General Horowitz.
The Honorable Sharon Bradford Franklin. Ms. Franklin is the
Chair of the Privacy and Civil Liberties Oversight Board. Prior
to her appointment, she served as Co-Director of the Security
and Surveillance Project at the Center for Democracy and
Technology. From 2013-2017, she served as the Executive
Director of the Privacy and Civil Liberties Oversight Board.
Thank you for being here, Ms. Franklin.
The Honorable Beth Williams. Ms. Williams is a Board Member
of the Privacy and Civil and Liberties Oversight Board. Prior
to her appointment, she served as an Assistant Attorney General
for the Office of Legal Policy at the Department of Justice and
was a litigator in private practice.
Welcome, Ms. Williams. Thank you for being here.
We welcome you today and thank our witnesses. We will begin
by swearing you in. Would you please each rise and raise your
right hand?
Do you swear or affirm under penalty of perjury that the
testimony you are about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
Let the record reflect the witnesses have answered in the
affirmative. You may be seated.
Please know that your written testimony will be entered
into the record in its entirety. Accordingly, we ask that you
summarize your testimony in five minutes. As I let you know at
the beginning, I will let all our Members know as well, just so
you will remember, we have the Joint Session of Congress for
the President of the Republic of Korea will be here at 11:00
and we have to be in our seats by 10:35-ish I think is the
word.
With that, Mr. Horowitz, you may begin.
STATEMENT OF THE HONORABLE MICHAEL HOROWITZ
Mr. Horowitz. Thank you, Chair Biggs, Ranking Member
Jackson Lee, and Members of the Committee. I appreciate you
inviting me to testify today.
In every year since 2006, the OIG's Annual Report on the
Top Management and Performance Challenges Facing the Department
of Justice has highlighted the difficulty faced by DOJ and the
FBI in maintaining the proper balance between protecting
national security and safeguarding civil liberties.
My office regularly conducts national security and
surveillance oversight work, including OIG reviews of the FBI's
use of its specific FISA authorities, the FBI's use of other
national security authorities, and the FBI's and other DOJ law
enforcement components' use of confidential human sources and
administrative subpoenas. I've attached to my written testimony
links to the 20 post-9/11 reports that my office has done in
these areas.
The overarching conclusion from this series of reports is
that compliance has certainly been far from perfect, and that
transparency, effective internal controls, and rigorous
internal and external oversight are needed and critical to
ensuring that the significant authorities held by the
department investigators and prosecutors to surveil Americans
are used in accordance with applicable laws, court orders, and
the Constitution.
Indeed, the importance of rigorous, ongoing, and effective
oversight in this area was highlighted by disturbing findings
in three of our recent reports.
First, our review of four FISA applications and other
aspects of the FBI's Crossfire Hurricane investigation.
Our audit of the FBI's execution of its Woods Procedures in
connection with FISA applications for U.S. persons.
Our audit on the roles and responsibilities of the FBI's
Office of General Counsel on national security matters.
These reports highlight three centrally important
principles that this Subcommittee and the Committee should be
considering as you look at the future of 702.
First, there needs to be effective supervisory review, and
that needs to occur in real time to prevent compliance errors
from occurring in the first place. In our experience, effective
and strong supervisory review helps detect and prevent errors
before they occur. In connection with both our Crossfire
Hurricane review and our Woods review, we identified
significant inadequacies in the supervisory review, as we
reported on, that could have had a meaningful impact on how
those programs were conducted.
Second, effective, routine, and regular internal oversight
is needed to identify and address any program weaknesses. With
any program, but, particularly, with the National Security
Program, DOJ, and FBI must have their own effective internal
auditing and compliance functions and controls to ensure that
they're complying with laws, rules, and regulations, and, of
course, the Constitution.
During our Woods Procedures audit, we actually found that
they did have such procedures and were doing such audits. The
problem was they weren't looking at the results, so that they
could make effective reforms and make changes.
We've seen recently that the FBI and the department has
created a compliance training--Compliance Trends Analysis Group
and an Office of Internal Accounting. Those are important
steps. We will be reviewing those as we look at our
recommendations and consider whether and how those actions have
affected compliance.
Third, the significant issues that we've identified
demonstrate the need for strong, rigorous, outside oversight.
That's the kind of work we've done. We're going to hear from
the Privacy and Civil Liberties Oversight Board, the work that
they've done, and others, to ensure that recommendations--to
ensure there's compliance and to ensure that recommendations
are followed and implemented.
One of the things that requires is timely access to
information and records. This Committee and the Congress took
an important step in that regard, in 2016, with passage of the
IG Empowerment Act. That work is also resource-intensive. Our
recent work on the Crossfire Hurricane and Woods audits
required well more than a dozen of our staff to work on those
matters for an extended period of time.
We've appreciated the strong support that Congress has
given us through the Appropriations Committees, and we look
forward to continuing that work with the support of the
Congress. We look forward to speaking further of that with the
Subcommittee, about how the work we do and our future--what
we've done, and our future work can continue to ensure that the
department operates with integrity, with efficiency, with
accountability, and in compliance with all laws, and, of
course, the Constitution.
Thank you. I look forward to answering your questions and
appreciate being here today.
[The prepared statement of the Hon. Horowitz follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you, Inspector General.
Now, Ms. Franklin, you may begin.
STATEMENT OF THE HONORABLE SHARON
BRADFORD FRANKLIN
Ms. Bradford Franklin. Chair Biggs, Ranking Member Jackson
Lee, and Members of the Committee, thank you for the
opportunity to testify before you today.
I'm testifying in my individual official capacity. So, the
views I express today are my own and not necessarily the views
of any fellow board members.
The Privacy and Civil Liberties Oversight Board is an
independent agency, and our role is to review Federal
counterterrorism programs to ensure that they have appropriate
safeguards for privacy and civil liberties.
The PCLOB is currently examining Section 702 of FISA,
which, as you know, is set to expire at the end of this year,
unless reauthorized. Our review does not examine traditional
FISA orders, such as those at issue in the Crossfire Hurricane
investigation.
Section 702 authorizes the government to target non-
Americans located outside the United States and to collect the
content and metadata of their communications. Although the
board has not yet completed our Section 702 report, we can
already say that we agree three things are true.
Section 702 is valuable in protecting our national
security, and Section 702 creates risks to privacy and civil
liberties, and these risks can, and should be, addressed
without undermining the core value of the program. We are
confident that the privacy risks posed by Section 702 can be
addressed while preserving the program's value in protecting
our national security.
Since our report is not yet complete, I cannot say what
recommendations we'll make collectively as a board. Instead, I
will briefly describe my own views regarding three particular
privacy risks that I urge Congress to address.
First, Section 702 implicates the privacy rights of
Americans due to the volume of incidental collection. Section
702 targets can only be non-U.S. persons reasonably believed to
be located outside of the United States. The FISA Court
annually reviews and approves the general categories of foreign
intelligence to be collected, as well as targeting procedures,
minimization procedures, and querying procedures. No judge ever
reviews analysts' targeting decisions, nor do the procedures
require that targets be suspected of wrongdoing.
The legal rationale for these lower standards is that 702
targets are non-U.S. persons. So, they do not have recognized
Fourth Amendment rights. Nonetheless, if a U.S. person
communicates with a foreign target, their communications can be
collected through what the government calls incidental
collection.
The term ``incidental'' makes it sound like a small amount,
but we don't actually know the scope of this collection. The
government has argued that it would not be feasible to
calculate a meaningful number, but I believe that an estimate
that involves some margin of error can still be helpful to
Congress, as you assess what safeguards are needed for Section
702.
A second key aspect of Section 702 involves what the
government calls U.S. person queries. Analysts use queries to
search through already collected communications. As I've just
described, Section 702 does not require judicial review before
targeting or at the front end of Section 702 surveillance.
There also is no requirement that government agents establish
probable cause or obtain the permission of a judge before they
conduct a search through 702 data seeking information about a
specific American. That is why privacy advocates refer to these
U.S. person queries as ``backdoor searches.''
There's been a lot of public attention to FBI's violations
of the existing query rules. Importantly, the FBI has recently
implemented several reforms designed to improve compliance, but
I do not believe that these changes are sufficient to address
the privacy threats.
U.S. persons' communications are entitled to protection
under the Fourth Amendment. So, when there's no judicial review
at the front end, the government should not be able to search
through collected communications for a specific American's
communications without any individualized judicial review. As
Congress debates reauthorization of Section 702, I urge you to
incorporate a requirement for FISA Court review of U.S. person
query terms to ensure protection of U.S. persons' Fourth
Amendment rights.
The final privacy risk I want to mention is the risk that
the government will seek to restart ``abouts'' collection,
which involves communications that are neither to or from a
target, but, instead, include a reference to a target. In 2017,
the NSA announced that it had suspended ``abouts'' collection.
Then, the January 2018 reauthorization of Section 702
prohibited ``abouts'' collection, but also provided that the
government could restart this collection after obtaining FISA
Court approval and giving notice to Congress.
However, the unique privacy risks posed by ``abouts''
collection would reemerge if restarted. I'd, therefore, urge
Congress to remove the provision authorizing the government to
restart this type of collection.
Ultimately, I urge Congress to use the opportunity of the
Section 702 sunset to adopt meaningful reforms, and I'm
encouraged that this Committee is beginning this process now. I
am confident that Congress can address the privacy risks posed
by Section 702, while preserving the key value the program
offers to protect our national security.
Thank you, and I look forward to your questions.
[The prepared statement of the Hon. Bradford Franklin
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you, Ms. Franklin.
Now, Ms. Williams, you are recognized for five minutes.
STATEMENT OF THE HONORABLE BETH A. WILLIAMS
Ms. Williams. Good morning.
Thank you, Chair Biggs, Ranking Member Jackson Lee, and
Members of the Committee, for inviting me to testify before you
today regarding Section 702. On behalf of the Privacy and Civil
Liberties Oversight Board, I'm grateful to be here today.
Before I begin, there are a few caveats to my testimony.
First, as the Chair said, ``I am also only one Member of
the Board. So, I'm speaking in my individual capacity as a
board Member and not for the board as a whole.''
Second, I want to note that we are currently working on an
extensive report on the Section 702 program. We anticipate that
this report will explain the program in as complete and
unclassified a manner as possible, and that it will provide
further recommendations going forward.
On that last point, with the exception of the three points
of agreement Chair Franklin stated at the outset, the report
and the Members' discussions and deliberations are very much
still in process. So, out of respect for my fellow Members, as
well as the fact that we are still receiving new information,
much of which is classified, I'll be somewhat limited in what I
can opine on at this time.
Third, I note that our forthcoming report is focused on the
program operated pursuant to Section 702, and not on FISA as a
whole and not on Title I authorities. So, I would defer to my
co-panelist and Inspector General Horowitz on questions beyond
Section 702.
I am, however, deeply concerned, as I know are many of the
Members of this Subcommittee and others in Congress, regarding
FBI misuses of its authority. There must be no repeat of the
egregious violations of law and policy committed during the
investigation of alleged Russian interference in the 2016
election campaign of former President Trump.
Furthermore, although those violations occurred under a
separate section of FISA that governs investigations of U.S.
citizens, the intelligence community has not been faultless in
its application of the Section 702 program, either. Indeed, it
is evident that many queries of information about U.S. persons
were run against 702-
collected information, specifically, by the FBI in conflict
with governing policies and procedures. This is unacceptable
and must be acknowledged and addressed.
The FBI has taken some steps to remediate this problem. I
anticipate that the board's forthcoming report will detail some
of the significant compliance incidents and will make further
recommendations to the FBI and to the intelligence community as
a whole.
Having said that, I would like to spend a few minutes this
morning clarifying some points about the program. To begin
with, Section 702 does not permit targeting of U.S. persons.
Also important, Section 702 is not a bulk collection program.
Instead, the program targets specific non-U.S. persons abroad
about whom an individualized determination has been made that
they are reasonably likely to possess, receive, or
communication foreign intelligence information.
That intelligence information has led to the discovery of
previously unknown terrorist plots directed against the United
States and our allies, enabling the disruption of those plots.
It has assisted and protected our troops abroad, and it has
been used to identify and to prevent multiple foreign attacks
on our critical infrastructure. There can be no question that
the program is extraordinarily valuable to the safety and well-
being of Americans.
In contrast to some of the query and compliance issues that
I mentioned, we also have not seen significant compliance
problems with regard to the collection of information. Indeed,
in the most recently released joint assessment of the program,
the NSA targeting compliance incident rate was .08 percent.
During the same reporting period, the FBI targeting compliance
rate was .007 percent.
This means that the intelligence community is largely
avoiding improper collection under existing law and policies.
That is, they are not improperly targeting U.S. persons or
persons reasonably believed to be located in the United States.
As you are deliberating on how to improve Section 702 going
forward, I'd like to offer two topics for your consideration.
First, what the FBI considers sensitive queries are
crucially important. When you get at the heart of what most
worries concerned citizens, it is that the intelligence
community will be weaponized against politically disfavored
opponents. That is unacceptable in a democracy and must be
guarded against.
Recently, and belatedly, the FBI put in place procedures
that require heightened review for certain queries, such as
those involving elected officials, members of the media, and
religious figures. In the most sensitive cases, review is
required by the Deputy Director of the FBI personally. Congress
should look closely at these enhanced preapproval policies and
consider whether this requirement might be codified,
strengthened, or reviewed by the FISC.
Finally, Congress might consider how Section 702-derived
information could be used in the context of vetting, both for
immigration purposes and for individuals applying for high-
level security clearance. Currently, for most agencies, a query
of unminimized Section 702 data is permitted only where the
search is reasonably likely to retrieve foreign intelligence
information. This means that the U.S. Government may already
have in its possession information that a visa applicant or a
person applying for the high-level clearance poses a threat to
our national security or is in communication with someone who
does. No one from our government might ever see this
information because our agents and analysts cannot run a query
for it in the unminimized 702 collection.
If Congress wants to ensure that persons coming in to work
in our country or persons entrusted with our most important
national security information are thoroughly vetted against
information already in the government's possession it might
consider looking further.
Mr. Biggs. Ms. Williams your five minutes has expired.
Ms. Williams. Thank you. I look forward to your questions.
[The prepared statement of the Hon. Williams follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Well, thank you so much, and we look forward
to--well, I've read your statement. I'll review it again.
Ms. Williams. Thank you.
Mr. Biggs. Thank you. With that, we're going to proceed now
under the five-minutes rule for questions.
The Chair recognizes the gentleman from Florida, Mr. Gaetz.
Mr. Gaetz. Good to see you again, Mr. Inspector General. We
appreciate you and all the great members of your team. I want
you to know we do read your reports. Just yesterday, I was
questioning the ATF Director about why they weren't following
some of the recommendations you put forward, and noted that
work is appreciated.
I also take note of our distinguished Ranking Member's call
for this FISA reform to be bipartisan and to be nonpartisan,
which at times are two different things. I think it is
thoughtful and mature, and I will do all I can to resist the
temptation to frequently point out that the very political
weaponization that Ms. Williams testified about is often
directed against Republicans.
Based on the Ranking Member's solemn, and I think
thoughtful, advice, we'll try to avoid seizing on that point as
frequently as we might otherwise.
I want to get into the 3.4 million backdoor searches that
the Ranking Member pointed out in his opening statement.
Mr. Inspector General, how should the public think about
those?
Mr. Horowitz. Well, I think what we've seen in the various
public reports--and I'm limited in what I can say about what's
public, which I think is one of the issues, by the way, that's
worth talking about, is transparency here--it's, obviously,
very concerning that there's that volume of searches, and
particularly, concerning the error rate that was reported on in
the last two years in the public reporting. Now--
Mr. Gaetz. That error rate was what?
Mr. Horowitz. I believe it was around 30 percent. I think--
fellow members? I think it's around 30 percent.
Mr. Gaetz. Well, 30. Yes, I'm a lawyer, not a
mathematician, but 3.4 million, about 30 percent, you're
talking about seven figures of error in terms of these
searches. I'm wondering, how many people can perform these
backdoor queries?
Mr. Horowitz. I'm going to defer to board members, because
you have the review ongoing.
Ms. Bradford Franklin. I'm afraid I don't have those
figures at my fingertips in terms of the number of people that
can conduct those types of searches. I share the concern
expressed in the question that we need to have greater
safeguards, and I urge Congress to incorporate a requirement
for FISA Court review of these kinds of searches to protect
Americans' Fourth Amendment rights.
Mr. Gaetz. There are 3.4--you had 3.4 million backdoor
searches, more than a million of them in error. If I represent
to you that we believe there may be north of 10,000 people in
the Federal government that can perform those queries, would
anyone here have a basis to disagree with that assessment?
Mr. Horowitz. No.
Mr. Gaetz. So, FISA is unique in our jurisprudence because
it's not an adversarial process. Most of us think about
justice, where there's a lawyer on one side, a lawyer on the
other, and then, a judge or a jury makes the decision. Here in
FISA, you've got just one team and the referee, and you don't
have a defense attorney or an advocate there to point out these
things.
Given that FISA isn't adversarial, how does that increase
the importance of the Department of Justice taking the
recommendations of the Inspector General, as you've laid out
over the years?
Mr. Horowitz. Congressman, I think it's critical. You're
exactly right. That is one of the concerns we saw in the Title
I work we did on the Carter Page FISAs, which is, to some
extent, the FISC is relying--well, it is relying entirely on
what the government tells it. So, in some respects, it's unfair
to look to the FISC to try and do the kind of work that, as you
noted, a defense lawyer would do.
I was a Federal prosecutor. I was a defense lawyer as well.
There's a search for the truth--
Mr. Gaetz. Again, I'm a little annoyed they don't hold the
Federal prosecutors in contempt who come before them and don't
present complete evidence if that happened.
Mr. Horowitz. I'll just say, on the Carter Page FISAs, one
of the problems that we found, and one of the serious problems
we found, was the FBI was sitting on information and it wasn't
telling the prosecutors that information.
Mr. Gaetz. See, if I was in a civil litigation environment
in North Florida, and I was withholding evidence that the other
side had a right to, I would expect a judge to sanction me. I
know you don't oversee the court, but perhaps a message that
they would absorb.
Speaking of messages to absorb, we have this nonadversarial
process. We have these 3.4 million backdoor queries, more than
a million of them in error. It just doesn't seem like DOJ is
listening and they are as quick on the uptake as they should
be.
In 2019, you write a 470-page report detailing the
problems. In 2020, you publish a management advisory that lays
out the problems. In 2021, you lay out additional reforms. It
seems as though every time you write a report, and then, the
DOJ comes in and tells us that they now have fixed everything
and have seen the light. Then, you write another report showing
that there hasn't been sufficient compliance. I know there's a
report coming after this hearing, but I think that just
continues the cycle until we constrain these authorities.
Mr. Biggs. The gentleman's time has expired.
The Chair recognizes the gentlelady from Texas, the Ranking
Member, Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much.
Good morning.
Ms. Franklin, when Congress reauthorized FISA in January
2018, we added a provision requiring the Attorney General to
develop procedures for querying information in the 702 data
base, to be reviewed by the FISA Court as part of its annual
certification. Can you explain why having clearly defined
querying procedures can help protect Americans' Fourth
Amendment rights?
Ms. Bradford Franklin. Thank you for that question.
Yes, I agree that requiring specified querying procedures
is important. Previously, the rules that applied to querying
were contained in minimization procedures. They have now been
fleshed out and documented further, and we just had a release
recently, this week, by the FBI, of a public version of their
querying procedures. Having clarity can help prevent the kinds
of compliance violations that we have seen.
However, I would urge that those are not sufficient. I
believe that, in addition to having specified rules which are
approved by the FISA Court, Congress should incorporate a
requirement that individual queries be submitted to the FISA
Court for review to ensure full protection.
Ms. Jackson Lee. So, in any reform, you would add the
individual queries as well for clarification and transparency?
Ms. Bradford Franklin. Yes, and--
Ms. Jackson Lee. Within the intelligence community?
Ms. Bradford Franklin. Well, I think FISA Court review
can--the individualized judicial review is important because in
this program we do not have individualized judicial review at
the front end. So, when we are looking--when analysts are
looking for the information about specific Americans who have
recognized Fourth Amendment rights, to have the judicial review
at that point.
Ms. Jackson Lee. Thank you.
Inspector General Horowitz, in the 2018 reauthorization of
Section 702, Congress made some small changes to the law to
attempt to protect U.S. persons whose communications may be
swept up in 702 collections. One of the changes was to impose a
limited warrant requirement for U.S. persons who are the
subject of an open criminal investigation. How has the warrant
requirement been used in practice? What impact?
Mr. Horowitz. Let me get back to you on that. I want to
make sure that I'm fully informed on that. I have not looked at
that recently, and I want to be careful on how much I can say
in a public forum at this point.
Frankly, one of the challenges in talking about the use of
these tools is how much remains classified and how only in the
last recent months have we seen information coming forward. So,
I need to get back to you, if I can, on that, Congresswoman.
Ms. Jackson Lee. I want to take a leap, but you notice that
I mentioned the young airman. As I recall, what is in the
public domain is that there may have been some foreign contacts
that may come to our attention.
How would--we're all appalled at that. I'll just take a
brief moment on that before I ask Ms. Franklin a very quick
question. We're all appalled at that.
So, I want to just frame what we need to do to secure 702.
Just give us, if that was the case, and if there was a need to
engage, how the 702 would be utilized.
Mr. Horowitz. So, I think the important one--I'm not going
to talk about any specific case.
Ms. Jackson Lee. Yes.
Mr. Horowitz. As a general matter, what you mentioned is
the need to get a warrant in certain circumstances. That
requires a court. You don't self-issue a warrant. That creates
the oversight process that, I think, the Chair is referencing
more broadly, as a means by which there would be further court
review in other areas as well.
I won't speak for the Chair, but--
Ms. Jackson Lee. I have a question for her. She can follow-
up on that, if she desires. Let me, let me do the question.
I think I just want to get to the point. It wouldn't be
willy nilly, if I may use that terminology. The FBI needs to
well document--
Ms. Bradford Franklin. It depends what they're trying to
do, I think is the right answer on that one. I don't know if--
Ms. Jackson Lee. Well, she can--let me pose this question.
Then, you might want to expand. Is it clear whether the small
changes in the 2018 legislation reauthorizing Section 702 have
improved the administration of Section 702?
Ms. Bradford Franklin. Thank you. I believe there have been
some benefits, as I had just discussed, regarding the
requirement for querying procedures that has helped, but I do
not believe that those changes were sufficient, and I urge
Congress to incorporate more robust and meaningful safeguards,
just as the three that I mentioned during my opening remarks,
including requiring account of the extent of incidental
collection; requiring FISA Court review of U.S. person query
terms, and preventing the restarting of ``abouts'' collection.
Ms. Jackson Lee. I thank the witnesses.
Mr. Biggs. I thank the gentlelady.
With that, I recognize the gentleman from Wisconsin, Mr.
Tiffany.
Mr. Tiffany. Thank you, Mr. Chair.
Mr. Inspector General, and all of you, good to see you here
today.
You referenced Carter Page, and the third authorization to
spy on him, and there was a lie that was told to the FISC by
former FBI Attorney Kevin Clinesmith. He ended up getting a
sentence of 12 months' probation, 400 hours of community
service.
Now, over the last week, it has been exposed, as a result
of the work of the leadership of this Committee, that the
Secretary of State colluded with the intelligence community to
lie to the American people about Hunter Biden's laptop.
How effective will the reforms of Section 702 be if we
can't trust our intelligence agencies? Justice, the FBI, NSA,
can we trust them to reform?
Mr. Horowitz. From my standpoint, I think it's all about
verifying and controls and oversight. You have to build in the
appropriate controls for these programs. I think we've seen
over the years, despite, as the Ranking Member just indicated,
changes that have helped improve the process, they clearly
haven't been sufficient.
Mr. Tiffany. Do you have a couple of mechanisms that you
suggest that should be added?
Mr. Horowitz. Well, I think one of the things that clearly
has been talked about is what the Chair just mentioned about
more--greater oversight by the FISC, by the Foreign
Intelligence Surveillance Court, of various authorities under
702.
I think there needs to be greater transparency. I think
this notion that we did a review recently of the FBI's Office
of the General Counsel and how it interacted with NSD and in
the course of that we found they had two differing views of
what the querying standard was for 702 queries. That's highly
problematic. We would not have known that, the public wouldn't
have known that unless we did our report. Having greater
clarity, clear rules, public transparent rules rather than
having this come up on the eve of every reauthorization where
there all the sudden seems to be more and more transparency.
Mr. Tiffany. Thank you.
Ms. Franklin, Ms. Williams, you can both--either of you can
take a shot at this. Should we be taking a hands-off approach
as the Judiciary Committee to this issue?
Ms. Bradford Franklin. No, Congressman, you should not be
taking a hands-off approach. I am encouraged that this
Committee is starting its consideration of Section 702 now with
the upcoming sunset at the end of this year. I'd like to agree
with the comments made by the Inspector General. It's important
to pair reforms with rigorous oversight, by Congress, by the
Inspector General, the PCLOB, and others.
Mr. Tiffany. So, why don't I just follow-up with my next
question then, Ms. Williams. So, we hear the sky is falling
from some if 702 goes away. Isn't there a backup to that?
Ms. Williams. Congressman, I wish there were. It's not like
the intelligence community doesn't have other authorities, but
I don't think this specific authority allows and puts actually
some privacy safeguards, but I agree not enough on the
collection of information.
I would just say also I think you really put your finger on
it with your last question because you said should we trust?
Obviously, there's a long way to go to regain trust. From my
perspective as an oversight body I feel like it's not my job to
trust. It's our job to look at what's actually going on, to put
strong guardrails in place and to recommend them to all of you.
Mr. Tiffany. Are you familiar with Executive Order 12333?
Ms. Williams. I am.
Mr. Tiffany. Yes. Would that provide more or less
protection than 702?
Ms. Williams. Well, it provides a different set of
protections. It involves foreign collection overseas. It
wouldn't apply with regard to communications that are
traversing U.S. soil.
Mr. Tiffany. Mr. Horowitz, do you care to comment on that?
Mr. Horowitz. Well, one is a Presidential Executive Order;
the other is a statute. They are in two different spaces, but
from my standpoint having a clear congressional decision and
statute is preferable than having internal guidance that--an
Executive Order is public, but what we've seen mostly in 702 is
internal guidance and querying standards that, for example,
were not public, the most recent ones, until the last few days.
Mr. Tiffany. Thank you. I think there is a broader question
here. Is the FBI's fixation on politics undermining crime
fighting in America? I think about the Parkland shooting.
Horrible incident down in Southern Florida. The FBI was warned
about that. Are they misallocating resources at this point? Are
they so focused on politics that they are not fighting crime in
America which this Committee has shown very capably that we
have a crime epidemic in America?
I yield back.
Mr. Biggs. The gentleman's time is expired.
The Chair recognizes the gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chair.
Ms. Franklin, the Chief concern that everybody here seems
to have is the incidental collection of information about
American citizens when we are targeting a foreign citizen
abroad. Why is it not feasible to require that all that
information immediately be destroyed, that the name of the
American be removed and that all references to whatever he or
she said also be removed?
Ms. Bradford Franklin. Thank you for that question.
Incidental collection is a recognized feature of Section 702
collection. Of course it is targeted at non-Americans located
overseas, but part of what has been authorized; and an
important role the intelligence agencies would tell you, for
that collection is when those people are talking to people
inside the United States to be able to identify them and know
if they are working with our valid 702 targets to plot or
otherwise pose a threat to the United States.
Now, of course, once we have identified those Americans in
the 702 collection, it then becomes incumbent on the
intelligence agencies and with assistance from Congress to have
those robust safeguards like FISA Court review. At the outset
the fact that somebody is talking to a foreign overseas
target--to be able to identify those potential threats inside
the United States is a feature of this program that is known
and recognized and not necessarily the problem. It's only when
they start to focus in on the American that we need to ensure
we have those safeguards.
Mr. Nadler. What do you mean when they start to focus in on
the American?
Ms. Bradford Franklin. At the point they're conducting U.S.
person queries, when they are looking to find what is going on
with a particular American and they want to search through the
data. At that juncture that is where we are implicating the
Americans' Fourth Amendment rights.
Mr. Nadler. So, why do we not prohibit that unless they get
a search warrant?
Ms. Bradford Franklin. Exactly. That is--I urge that.
Mr. Nadler. That is not in the current law?
Ms. Bradford Franklin. Correct.
Mr. Nadler. OK. In April 2016, I signed a bipartisan letter
to ODNI Director James Clapper requesting a public estimate of
the number of communications or transactions involving U.S.
persons subject to Section 702 surveillance on an annual basis.
Seven years later that number has still not been provided.
Inspector General Horowitz, has DOJ or FBI reported this
number to you and are you prepared to share this today?
Mr. Horowitz. They have not reported it to me.
Mr. Nadler. Can you get that information?
Mr. Horowitz. I will follow-up with them, but my
understanding is the position has been that it would be
impossible to come up with an accurate number, which I find
concerning.
Mr. Nadler. Yes.
Ms. Franklin, do we have any idea of the quantity of
American data collected through Section 702 surveillance each
year?
Ms. Bradford Franklin. We do not, and I urge Congress to
require that they provide such an estimate. Even if it can't be
as mathematically precise as some of the other numbers they
produce, I believe it still can be meaningful to Congress as
you assess whether safeguards are adequate under Section 702.
Mr. Nadler. Thank you.
Ms. Williams, in the PCLOB's 2014 report which we
referenced in the letter PCLOB recommended that the NSA
annually count certain communications including telephone
communications in which one caller is located in the United
States, Internet communications that originate or terminate in
the United States, and communications concerning U.S. persons.
Has the NSA provided you with these numbers?
Ms. Williams. Congressman, the NSA has not provided us with
these numbers because it is their position that it is
infeasible or would cause other privacy concerns, but that is
something that we are actively looking at. We are looking at--
there's one paper, in particular, that I'm thinking about with
regard to Princeton University they put out, and we're looking
at different methods of ways that perhaps they could do it in a
privacy protective way. I expect that we'll encourage them to
consider those methods.
Mr. Nadler. Thank you.
Ms. Franklin, after Section 702 data is collected by the
NSA certain sections are made available to intelligence
agencies. The 702 data base often includes the communications
of Americans swept up in 702 surveillance. Do we know who at
the FBI has access to that information and what safeguards if
any exist to limit the number of people with access to the 702
data base?
Ms. Bradford Franklin. The FBI does have in place
requirements that agents undergo training on an annual basis to
maintain their access to 702 data. So, there are some
safeguards in place in that regard, and I think that is
important.
Mr. Nadler. Thank you very much. I yield back.
Mr. Biggs. Thank you.
The Chair recognizes the gentleman from Texas, Mr. Nehls.
Mr. Nehls. Thank you, Mr. Chair.
Thank you, Inspector General Horowitz. I served in law
enforcement for 30 years, as a sheriff for eight of a large
county. We served hundreds of warrants, if not thousands
throughout my years in law enforcement, and I can tell you to
obtain a warrant we had to find a judge, we had to establish
probable cause. if you didn't meet that threshold, the judge
wouldn't give you the warrant. Reasonable suspicion didn't meet
the standard; it was probable cause. This I agree with because
I think it was there--the whole purpose was to protect people
in their Fourth Amendment right.
Can you explain the process the FBI uses to obtain a FISA
warrant specifically? What is required to show probable cause?
Mr. Horowitz. So, on the Title I side of FISA, when they're
going to seek a warrant like they did in the Carter Page
circumstance, they need to show that there is sufficient
evidence, probable cause to believe that the individual they're
seeking the warrant against may be an agent or could be an
agent of a foreign power.
Mr. Nehls. Yes. I want to talk about the illegal
surveillance of Trump campaign associate Carter Page, and I
want to thank you for you and your investigative report, which
found that the FBI had abused its FISA authority on several
occasions to conduct illegal surveillance on Page, Mr. Page.
This was and continues to be critical for our oversight. Here
is the article, Washington Examiner, ``DOJ Inspector General
Finds 17 Significant Errors or Omissions in Carter Page FISA
Applications.''
You know when I go through this timeline and when you look
at Mr. Page--for those of you that may not be familiar with
some of these characters, you have got Carter Page, you have
got Kevin Clinesmith, Peter Strzok, Lisa Page, Christopher
Steele, the dossier, and Stuart Evans.
This Carter Page was a great American. In 1993, he
graduates from the Naval Academy, he serves in the Navy five
years, worked as an intel officer before rising to the rank of
lieutenant. In 2000, he goes to work for Merrill Lynch in
London. In 2004, Merrill Lynch promotes him to Deputy Branch
Manager in Moscow. He leaves Merrill, becomes an International
Energy Consultant based in New York and travels primarily from
London to Moscow. The CIA begins debriefing Page about his
contacts with Russians in 2008. So, he has a relationship now.
He is being interviewed. The CIA is interviewing him. CIA is
sharing information with the FBI.
In 2013, Russian agents posed as bankers approach Page in
New York, that energy symposium and try to cultivate him as a
source for economic information. The FBI, in April 2013,
records it. They record it. Russians are complaining because
Page didn't want to agree, didn't want to cooperate with them.
In June that same year the FBI interviews Mr. Page again and
reveals that he has spoken with the CIA. So, they are all
talking. This is good. The Federal agencies are talking to each
other.
Page agrees to cooperate as a key witness against this
Russian agent and the agent gets found guilty; sentenced him to
30 months in prison.
Then this is where it goes wrong. This is where it happens.
Then all of a sudden Page then starts working for Trump and
that is where these individuals: Christopher Steele, the former
British intel agent--he brings the Steele dossier together.
Hilary Clinton hires Fusion GPS to dig up the dirt on Trump.
This is the problem we have. We can see that it was all out
there to go after Trump, to dig up dirt on Trump.
The FBI knew Page was a credible man, but they ignored all
this. They get warrant after warrant after warrant and we take
it all the way up through 2017 and then eventually they find
out Mr. Page didn't do anything wrong. They sentence Mr.
Clinesmith. I didn't think they gave him enough time. They
sentence him to 12 months' probation and 400 hours of community
service.
When you look at what happened to Mr. Page because he
joined the Trump team, Mr. Page's previous years of serving his
country, doing a great job, cooperating with the FBI and the
CIA, they turn this guy now into some type of a villain, some
type of a Russian agent, all in the name of what? To go after
Trump and the Trump campaign, to make Trump look like he was in
collusion with the Russians.
I don't have time to go through the whole story, but what
safeguards have been in place, what safeguards have been in
place to ensure this doesn't happen in the 2024 election
especially given that Donald Trump is the leader of the
Republican Party? What are we going to do?
Mr. Horowitz. So, we made a series of recommendations in
both our review of the Crossfire Hurricane matter and the Woods
review that we did. We have a series of recommendations. Most
of those have been addressed, but not all of them. We continue
to follow-up to make sure what has been done is being
implemented effectively and works.
Mr. Nehls. Thank you. I certainly hopes so. God bless our
country. I yield back.
Mr. Biggs. Yes, thank you.
I recognize the gentleman from Rhode Island, Mr. Cicilline.
Mr. Cicilline. Thank you, Mr. Chair.
I want to thank the witnesses for being here today to
testify and to answer our questions about this very important
issue.
With Section 702 set to sunset at the end of this year it
is vital that we have these discussions before we take our next
steps. Over the last few decades the national security
landscape and warfare have changed dramatically. War is not
just fought on the grounds with troops and artillery anymore.
In fact it is more and more rare that we see this traditional
warfare alone.
Now, it is cyber warfare fought by enemies that don't ever
have to physically enter the United States or even see an
American soldier or citizen to cause grave harm. Entire
societies can be shut down by a cyber security threat.
Computers are now a battlefield of choice for terrorists. This
makes strong reliable intelligence perhaps more important than
ever before. Moreover, with mass atrocities still happening
across the world, with war criminals committing grave human
rights violations intelligence gathering is vital to a strong
response.
For example, last week Deputy Attorney General Monaco
testified before the Senate Judiciary Committee that Russia's
forces committing shocking atrocities as part of its brutal and
unprovoked invasion of Ukraine, and that some of this
intelligence was being gathered that today--that is being
gathered was gathered in connection with some of the
authorities that we are discussing today.
With that said, it is more important than ever that we
ensure that our civil rights are protected as our national
security agencies gather this intelligence. Our civil liberties
are not currency. They are not a price we pay for national
security. They are sacred and fundamental to our society and we
must ensure they are protected to the fullest extent.
I think we all recognize that information that gets swept
up by these searches, particularly, in the 702 data base and
the way they are accessed can present some real challenges. So,
I would like to pick up where Ranking Member Nadler left off
talking about just how much U.S. person data is swept up in 702
surveillance.
Inspector General Horowitz, is there any indication that
the intelligence agencies have even tried to track the quantity
of U.S. person communications that come in through 702, even a
general estimate, for last year for example?
Mr. Horowitz. I don't have information about the other
intelligence agencies. We only oversee the FBI. I'm not aware
of data from the FBI on what the numbers look like today.
Mr. Cicilline. Ms. Franklin, should U.S. data be collected
going forward; that is, U.S. person data? If so, what
additional procedures should be in place to make that happen,
or before that can happen?
Ms. Bradford Franklin. Thank you. I'd also like to address
the--
Mr. Cicilline. Yes.
Ms. Bradford Franklin. --piece of the question about what
they have done. So, the intelligence agencies have briefed I
believe Members of this Committee as well and us on several
techniques that they have considered to calculate the quantity
of U.S. person information. They have asserted that is
infeasible to calculate a meaningful number, however I believe
that the difference is in what is meaningful. They are thinking
of mathematical certainty and where the alternative is, that we
have no estimate whatsoever. An estimate that involves some
margin of error can still be meaningful, which is why I urge
Congress to require them to produce such an estimate.
With regard to the incidental collection, as I was stating
in my earlier response, at the outset knowing who valid foreign
targets are talking to, including if they are talking to people
inside the United States, is an important feature of the
program. However, it is at the juncture where the intelligence
agencies want focus in on a U.S. person and search through the
collected data, looking for their particular communications
that I believe it is important to protect those Americans
Fourth Amendment interests and their communications. Congress
should incorporate a requirement for FISA Court review of those
U.S. person queries.
Mr. Cicilline. Finally, is there any reason that with
respect to the second category; that is, information that
relates to a U.S. person query that currently doesn't require
judicial review or a finding of probable cause, or even a
review by a court? Is there any reason for that query when it
involves a U.S. person that you simply--we couldn't simply
impose statutorily a probable cause requirement or judicial
review requirement like every other citizen in the United
States and every other search context?
Ms. Bradford Franklin. I believe Congress certainly has the
power to impose that requirement. I'm urging Congress to do
so--speaking personally for myself as board member, to do so in
this reauthorization.
Mr. Cicilline. Do you agree, Mr. Horowitz?
Mr. Horowitz. Congress certainly has the authority to do
that and I think that's one of the key issues for this
Committee and the Congress to consider.
Mr. Cicilline. Do you think that is a responsible action
for Congress to take?
Mr. Horowitz. I would say that I think what you'll hear
from the department and the FBI is the question of the volume
of cases, and probably from the FISC as well, which is you will
need to consider the volume of the work that would increase for
the FISC and how you address that.
Mr. Cicilline. We are happy to pay for--provide additional
resources--
Mr. Biggs. The gentleman's time is expired.
Mr. Horowitz. That is the question.
Mr. Cicilline. Thank you. I yield back, Mr. Chair.
Mr. Biggs. Thank you, Mr. Cicilline.
I recognize the Chair, Mr. Jordan.
Chair Jordan. Ms. Franklin, you testified you have no idea
how many Americans are picked up in the incidental collection
and the FBI won't tell you or won't even give you an estimate
what that number may be. Is that right?
Ms. Bradford Franklin. That's correct.
Chair Jordan. You have no idea the amount of data collected
on American citizens and the FBI won't tell you or give you an
estimate on that either?
Ms. Bradford Franklin. The intelligence agencies have
asserted that it is infeasible for them to calculate a
meaningful number and they have not done so.
Chair Jordan. Then 10,000 people, approximately 10,000
people at the Justice Department have the ability to query this
incidental collection data base without any probable cause. We
know as the Ranking Member of the Full Committee, Mr. Nadler,
said earlier, ``there were 3.4 million queries of this data
base and 30 percent of those were in error.'' Is that all
right?
Ms. Bradford Franklin. I don't have at my fingertips all
those number, but I do recall specifically the 3.4 million
number of queries conducted in the prior calendar year.
Chair Jordan. The solution is simple, right? Require
probable cause if you are going to query this data base on
American citizens?
Ms. Bradford Franklin. As I have stated, I urge Congress to
require that the FISA Court review those U.S. person query
terms before they--
Chair Jordan. Ms. Williams, do you agree?
Ms. Williams. Well, Congressman, that's something that
we're looking at right now. I think you put your finger on it,
which is that you want to increase privacy and civil liberties
as much as possible for U.S. persons. The pros of that is that
it would make it harder to run a U.S. person search. The con of
that is it would make it harder to run a U.S. person search.
So, there's a balance there.
Chair Jordan. Americans are being picked up in this
incidental collection. We don't know the number. My guess it is
pretty darn big. They won't tell us. Without probable cause
that data base is being searched 3.4 million times with all
kinds of error rates, as Mr. Gaetz in his round of questioning
determined earlier.
How about if we just get the FBI out of the business
altogether?
Ms. Williams. I think the question is should--
Chair Jordan. What if the FBI can't query this data base?
In other words, you can't query--don't even mess with the--FBI
can't query this data base on American citizens.
Ms. Williams. Look, the FBI has a long way to go to regain
public trust. The question is, I think if the FBI is not doing
these searches to figure out who in the United States is
talking to terrorists abroad, who is going to do it? So, the
concerns are real and the--
Chair Jordan. Well, who is going to do it? We got other
agencies that do it already.
Ms. Williams. Well, we have agencies. Do you want to--
there's a risk of turning the CIA or NSA, who look outward,
inward on Americans. We don't want to--
Chair Jordan. We are not allowed to do that.
Ms. Williams. Right. Exactly.
Chair Jordan. The CIA is not allowed to do that.
Ms. Williams. Exactly.
Chair Jordan. We are not going to change that.
Ms. Williams. Exactly.
Chair Jordan. No way.
Ms. Williams. Right.
Chair Jordan. I mean this Committee--you guys are on the
Privacy and Civil Liberties Board. That is what the main
function of this Committee, the Judiciary Committee, is to
protect the Constitution, protect the Bill--that is our
fundamental responsibility. Section 702 is up for--this the
most important thing we are probably going to do this Congress,
get this right, not let it continue with the data that you all
understand. That is our focus, should be our focus this--and
the fact that I think we can get bipartisan--we can get
agreement here on protecting those liberties I think is just
so--
When is the report going to be ready? Many of you have
referenced that. I think all three of you referenced it in your
opening statements. When is that coming?
Ms. Bradford Franklin. Not able to give you an exact date.
We are working hard. There's a lot of complex information at
issue.
Chair Jordan. Well, let me ask this question: Is it going
to be ready before December 31?
Ms. Bradford Franklin. Yes.
Chair Jordan. OK. That is important. We are working on this
now. I want to thank the Chair for calling this hearing. This
is something we had a--all Republicans met yesterday. We had a
one-hour meeting on this issue alone. We are trying to figure
out exactly what is best to protect Americans' privacy rights,
their fundamental freedoms. The sooner we get that report; I
think that is helpful information, the better. Any idea again.
Ms. Bradford Franklin. We're aiming for the summer.
Chair Jordan. Sooner the better.
With that, Mr. Chair, I yield back. Again, I thank the
Chair for putting this hearing together.
Mr. Biggs. I thank you, Mr. Chair.
With that, we are going to go into recess until the sound
of the gavel so that people can go to the Joint Session of
Congress. With that, we are in recess.
[Recess.]
Mr. Biggs. The Subcommittee is called to order. We expect
other Members to be coming back and joining us momentarily.
At this point, I thank the witnesses. Let the record
reflect the witnesses are all back. You are still under oath.
We are still in the five-minutes rule for questioning.
With that, the Chair recognizes the gentlelady from
Florida, Ms. Lee.
Ms. Lee. Thank you, Mr. Chair.
FISA is intended to be an important tool in gathering
foreign intelligence information designed to give law
enforcement a way to promote national security and keep our
homeland safe from foreign threats. It is a great
responsibility to have a surveillance technique that exists
outside of the standard public parameters of our courts and
search warrant procedures and incumbent on all of us to ensure
that when that process is used, it is used judiciously and
always within the parameters of the law.
We know that certain actors in our own government have
instead used FISA and Section 702 to conduct warrantless
surveillance of Americans, going against the ostensible purpose
of collecting information on non-U.S. persons and gathering
foreign intelligence information.
I have the utmost respect for our law enforcement officers
and our intelligence agencies when they are using the tools
afforded to them by law to keep Americans and our country safe.
We must carefully consider the use and the continuation of
these powers in the face of evidence of overreach and abuse.
Ms. Williams, I would like to start with a question for
you, going back to something that you mentioned in your opening
that actually relates to how we can be making constructive use
of some of the information that we have that we may not be
already doing. That is, you specifically mentioned background
checks, security clearances, and immigration related matters.
Would you please elaborate on how you think we could be using
information constructively within the law?
Ms. Williams. Well, thank you very much, Congresswoman.
I think this is a really important question, because one of
the things that I think a lot of the American people don't
realize is that this information may be about a clear and
present danger of persons to our national security is already
within our knowledge. The government may have already collected
that information. They can't run, our agents and analysts can't
run searches in the data base of this information unless they
have a reasonable belief that they will find foreign
intelligence information with regards to that query.
So, one idea for Congress to consider is for visa
applicants or for people who are applying for high-level
clearances to require them, when they apply for these things,
to consent to these searches, so that you don't have to have a
particularized reason to run that search. You can ensure that
these are people who are not talking to foreign terrorist
targets overseas, not in communication with those people, not
in concert with those people before they enter our shores and
come to work in our country.
Ms. Lee. Now, I also want to just follow-up generally. When
it is being used properly, with whom is 702-acquired
information shared?
Ms. Williams. So, 702-acquired information is shared
basically on a need-to-know basis. So, if an agency, if an
agent runs a query for a purpose, that information can be
communicated to other intelligence agencies who may have a need
to know that for their own either domestic law enforcement
purposes or for their own investigations.
Ms. Lee. In the conduct of your review and analysis of that
information and its actual use in practice, do you have ongoing
and continued concerns about whether that standard that you
just articulated for us is being followed?
Ms. Williams. So, we are taking a look at it. Part of that
is the minimization procedures, right, especially for U.S.
persons. So, when there is a finished intelligence product, any
U.S. person identifier would have to be masked.
I think one of the questions, one area Congress may want to
look at and that we are looking at is are the masking
guidelines appropriate or should they be tighter. So, if
somebody wants to unmask an identity, should there be more
transparency about when that happens? Should there be more
guardrails about when that happens?
Ms. Lee. So, in particular, are there specific reforms or
recommendations that you would make to us to help distinguish,
to help confine appropriate use of the tool and also limit
inappropriate, expansive overreach?
Ms. Williams. Absolutely. I think that is exactly what we
are hoping to do as a board to provide these recommendations.
Two of the areas that I mentioned in my statement, so the
special investigative matters for congresspeople, for elected
officials, journalists, religious figures, that I think is one
ripe area, and the other vetting, but also unmasking I think
are the areas that we would, some of the areas that we are
focusing on as a board.
Ms. Lee. Thank you, Mr. Chair.
Ms. Williams. Thank you.
Ms. Lee. I yield back.
Mr. Biggs. Thank you. The gentlelady yields back.
I yield time to myself, recognize myself for five minutes
of questions.
So, I am going to begin with you, Mr. Horowitz. You
mentioned earlier today that the FBI and DOJ lawyers had a
different understanding of the querying standard. That is what
I understood your testimony to be. That is a fairly significant
revelation.
The FBI, which conducts the queries, didn't show the same
understanding of the query standards as DOJ, who is supposed to
give the FISC accurate information about how the FBI is using
Section 702. What was the misunderstanding or what is the--or
is it persistent? What is that misunderstanding?
Mr. Horowitz. It was differing interpretations of what
evidence was, what the purpose was in going forward with the
searches. They were both looking at the same language and
having a different understanding of what the language was with
regard to the querying standards. So, it wasn't they were
making their own standards up. There was a standard there. They
had differing views of what that was.
As we reported on it, it has since been addressed by the
department in the querying standards that were released last
week where it became, that were released publicly last week
that were done well before that, that made it clear that, in
fact, the NSD lawyers were more correct in the approach they
were taking than what the approach was of the FBI--
Mr. Biggs. Are you telling me that it has been, you think
it has been resolved then?
Mr. Horowitz. The dispute has been resolved with these new
standards. What I can't tell you is how, yet, is how it is
being implemented, because it is recent. That is one of the
issues that we are planning to follow-up on, because, as you
know, whenever we do these and release recommendations, we then
follow-up to make sure that what we have been told has
addressed it has, in fact, addressed it.
Mr. Biggs. OK. So, well, we hope that it is solved going
forward anyway.
Mr. Horowitz. Well, we hope that they are aligned in
understanding it and that their understanding is reasonable and
appropriate. That is the thing we are going to, that is what we
will be asking questions about.
Mr. Biggs. OK. I am going to ask--well, I will ask all of
you this question, because part of the problem that I have
always had with this is the FISC itself. There is a just a few
judges. It is behind closed doors. There doesn't seem to be
over review, no transparent review of whether the judges
themselves are following the law appropriately.
What would you do to make or understand how to make the
FISC work more appropriately to protecting Fourth Amendment
rights and protections of U.S. citizens? I will start with you,
Ms. Williams.
Ms. Williams. Sure. I think that is an excellent question,
because you are right, there is not a lot of transparency
around the FISC.
One of the things that has been done is the introduction of
an amicus. That is someone who comes in. There is a few people
to represent the interests of the other side so that there
actually is an adversary process. One of the considerations, I
will speak only with regard to 702, because that is what we are
focusing on, is whether there should be an amicus appointed for
the annual 702 certifications. Right now there is not. That is
one of the potential recommendations that we are thinking
about.
Mr. Biggs. Thank you. Ms. Franklin.
Ms. Bradford Franklin. So, I would like to build on that
and just clarify. There is no requirement for the amicus to
come in. Typically there is. That is not necessarily required
for the FISA Court to appoint one.
I have done prior work on the issue of the amicus. Back in
2014, the Privacy and Civil Liberties Oversight Board, as part
of its report on the Section 215 program, actually recommended
something that the board then called special advocates. This
preceded the codification by Congress of the requirement for
the amici. It was stronger in recommendation than what
ultimately became enacted in law.
So, I would continue to urge that, consistent with the
original recommendations by the PCLOB, that the role of the
amicus be expanded and strengthened to expand the number of
cases, the types of cases in which they are required to be
appointed, including Section 702 and a recertification and
sensitive investigative matters, also that they have access to
all information relevant to the proceeding that they are
participating in, and finally that they have the ability to
petition for appeal to the FISA Court of Review or from there
on to the Supreme Court.
Mr. Biggs. Thank you. Mr. Horowitz, my time has expired. I
recognize the gentleman from South Carolina, Mr. Fry.
Mr. Fry. Mr. Chair, I yield my five minutes to you for
further questioning.
Mr. Biggs. Thank you.
Mr. Horowitz, would you please continue with your answer?
Mr. Horowitz. I will. So, building on what my two fellow
panelists mentioned, that is something that concerned us, the
lack of an adversarial process in connection with Carter Page
FISAs and that the problem being that agents when they swear
out affidavits are likely never to have to face cross
examination or any testimony that would be challenged by an
adversarial party in that process, because it is not like a
criminal case.
In a criminal case, having worked, again, as a prosecutor,
you understand that at some point you are going to produce that
to the defense, and if the case goes to trial or if there is a
pretrial hearing, the agent may be under oath in a witness
stand. That focuses the mind in making sure that you have got
every detail and fact correct. So, I think that is very
important.
I also would suggest considering how to make it more, as
you referenced, transparent. How do we find out, how does the
public find out sooner about decisions, about key findings? I
think one of the challenges has been, much as it has been for
our reports and my guess for the PCLOB's reports, is getting
through the clearance process, the security review process, and
how long it takes.
For example, our FISA report, we finished it in essence
around Labor Day of 2019. It was released publicly on December
9, 2019. During almost all that time, it was in the
classification review process, and exactly what was going to be
able to be made public and what could not be made public.
Mr. Biggs. OK. So, I hope that maybe you will include some
of those recommendations for the FISC itself in your report
going forward as well.
Ms. Williams, in your earlier testimony, and I wrote it and
I had it right here before the recess, so I am going by memory,
but I thought I jotted down something about the general
collection process. I think you said it is not meant to be a
bulk collection of data or information. It seems to be a bulk
collection of data or information.
The question is U.S. citizens getting caught up in that
somehow. I would like you to elaborate on how it has become, it
is bulk. It is broad. Then how do we somehow get back? You
guys, this is what the whole hearing has been about and you
have talking about this. How do we get it so where U.S.
citizens on U.S. soil are protected, because the intention of
this is non-U.S. citizens not on U.S. soil?
Yes, you got to mic up.
Ms. Williams. Yes. So, that is exactly right. So, the
reason I made the statement that it is not a bulk collection is
because that was what the PCLOB unanimously said in our 2014
report, ``that this is not a bulk collection program.'' What
that means is that before any collection can be done on any
foreign person overseas usually the NSA has to do very detailed
targeting to make sure that it is not a U.S. person, there is a
foreignness determination, and to make sure that there is an
expected collection of foreign intelligence information. So,
every single person is targeted.
That is the compliance rate that I talked about that was
low. There is a very--they are doing pretty well on that. Your
question, which is then the people of, U.S. people who get
caught up on that, the incidental collection are U.S. persons
who may be communicating with those targets overseas.
Mr. Biggs. So, I was fascinated by the statement you kind
of threw offhand and you kind of did earlier when you testified
to this. I would like everybody, we only have 48 seconds left,
so to be fast. When you said the compliance rate was low on the
bulk collection, I want to hear about that.
Ms. Williams. Yes, and I am sorry. I may have misspoken.
So, the compliance error rate was low, which means that they
are generally collecting in the way they should be collecting.
Mr. Biggs. OK.
Ms. Williams. The query error rate is high, which is once
the information is collected, are they searching the collected
information appropriately? That is where there are more errors.
Mr. Biggs. This is what we were talking about earlier. I
think the actual query error rate was 3.2 percent. Is that what
the actual query error rate is, 3.2 percent? Or would you
please check, Mr. Horowitz, and verify on that? That would be--
Mr. Horowitz. Yes, it has dropped significantly.
Mr. Biggs. OK.
Mr. Horowitz. I think that is where we are currently.
Mr. Biggs. OK. Great.
Mr. Horowitz. Or the most recent data I should add.
Mr. Biggs. Thank you so much.
I yield back to Mr. Fry.
Mr. Fry. I see my time has expired. I yield back, Mr.
Chair.
Mr. Biggs. The gentleman's time has expired.
Actually, no one else being present, I again thank the
witnesses. We look forward to hearing from you, look forward to
seeing your reports. I would urge the earlier the better,
because we are really going to try to do something. We don't
want to wait until the last minute. We want to make sure we
have a good product that will result from some of your
testimony. We will have additional hearings. Please, I think we
have asked for some data. If you could please respond to that,
that would be awfully kind.
With that, thanks again. We are adjourned.
[Whereupon, at 12:46 p.m., the Subcommittee was adjourned.]
The record for this hearing by the Members of the
Subcommittee on Crime and Federal Government Surveillance is
available at: https://docs.house.gov/Committee/Calendar/
ByEvent.aspx?Event
ID=115812.
[all]