[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:]

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    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:]

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    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:]

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    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.

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