[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
FIXING FISA, PART II
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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
__________
FRIDAY, JULY 14, 2023
__________
Serial No. 118-35
__________
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
53-045 WASHINGTON : 2023
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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 ERIC SWALWELL, California
DAN BISHOP, North Carolina TED LIEU, California
VICTORIA SPARTZ, Indiana PRAMILA JAYAPAL, Washington
SCOTT FITZGERALD, Wisconsin J. LUIS CORREA, California
CLIFF BENTZ, Oregon MARY GAY SCANLON, Pennsylvania
BEN CLINE, Virginia JOE NEGUSE, Colorado
LANCE GOODEN, Texas LUCY McBATH, Georgia
JEFF VAN DREW, New Jersey MADELEINE DEAN, Pennsylvania
TROY NEHLS, Texas VERONICA ESCOBAR, Texas
BARRY MOORE, Alabama DEBORAH ROSS, North Carolina
KEVIN KILEY, California CORI BUSH, Missouri
HARRIET HAGEMAN, Wyoming GLENN IVEY, Maryland
NATHANIEL MORAN, Texas BECCA BALINT, Vermont
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 HENRY C. ``HANK'' JOHNSON, Jr.,
Georgia
CHRISTOPHER HIXON, Majority Staff Director
AMY RUTKIN, Minority Staff Director & Chief of Staff
C O N T E N T S
----------
Friday, July 14, 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............................................. 3
The Honorable Jerrold Nadler, Ranking Member of the Committee on
the Judiciary from the State of New York....................... 5
WITNESSES
Jonathan Turley, Professor, George Washington University Law
School
Oral Testimony................................................. 8
Prepared Testimony............................................. 10
Philip G. Kiko, Principal, William & Jensen
Oral Testimony................................................. 21
Prepared Testimony............................................. 23
Elizabeth Goitein, Senior Director, Liberty & National Security
Program, Brennan Center for Justice
Oral Testimony................................................. 35
Prepared Testimony............................................. 37
Gene Schaerr, General Counsel, Project for Privacy and
Surveillance Accountability
Oral Testimony................................................. 80
Prepared Testimony............................................. 82
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Subcommittee on
Crime and Federal Government Surveillance are listed below..... 107
Materials submitted by the Honorable Sheila Jackson Lee, Ranking
Member of the Subcommittee on Crime and Federal Government
Surveillance from the State of Texas, for the record
An article entitled, ``Bipartisan Coalition Responds to the
FBI's New Policies Under Foreign Intelligence
Surveillance Authority.'' Jun. 13, 2023, Brennan Center
for Justice
An article entitled, ``Epic Coalition: New FBI Procedures
under FISA under Section 702 `Out of Touch' with Extent
of Abuse and Gravity of Privacy Threat,'' Jul. 13, 2023,
epic.org
APPENDIX
Statement submitted by the Honorable Sheila Jackson Lee, Ranking
Member of the Subcommittee on Crime and Federal Government
Surveillance from the State of Texas, for the record
FIXING FISA, PART II
----------
Friday, July 14, 2023
House of Representatives
Subcommittee on Crime and Federal Government Surveillance
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to notice, at 9:17 a.m., in
Room 2141, Rayburn House Office Building, the Hon. Andy Biggs
[Chair of the Subcommittee] presiding.
Present: Representatives Biggs, Gaetz, Tiffany, Nehls,
Moore, Kiley, Lee, Fry, Jackson Lee, Nadler, Dean, and Johnson
of Georgia.
Mr. Biggs. Good morning.
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, FISA.
I will now recognize myself for an opening statement.
Again, I welcome my colleagues. Thank you for being here. We're
trying to beat a vote time. So, we want to get as much done as
we possibly can before that is called. If we're not finished,
I'll let you know that we're planning on coming back following
the vote series if we still are engaged here.
I thank our witnesses very much for being here. Appreciate
you being here as well.
Congress enacted the Foreign Intelligence Surveillance Act
in 1978 in response to revelations that the Federal Government
had seriously abused warrantless surveillance resulting in
rampant privacy violations. Forty-five years later the same
remains true. Despite efforts to rein in these abuses, the
Federal Government continues to use its powers to illegally spy
on American citizens. The Federal Government uses your tax
dollars to spy on you using a law called the Foreign
Intelligence Surveillance Act or FISA.
In 2019, Inspector General Michael Horowitz exposed the
extent to which the FBI violated its authorities under FISA. IG
Horowitz identified significant concerns and serious
performance failures, including numerous factual misstatements
and omissions in the FBI's unjustified investigation of Trump
campaign associates.
In 29 applications that the FBI made to the FISA Court to
authorize surveillance, IG Horowitz found, in 25 of them, there
was unsupported, uncorroborated, or inconsistent information,
totaling more than 200 instances where the applications were
inaccurate, unsupported, or omitted information.
The FBI was unable to even locate the Woods File and in--
let's see. Yes, for the other four applications, so, of the 29,
couldn't even find four Woods Files and found over 400
instances of noncompliance with Woods Procedures across the 29
applications sample.
In February 2020, Director Wray testified before this
Committee and told the American people that they should not,
quote, ``lose any sleep over the vast majority of FISA
applications.''
Former Director Comey labeled FISA a top tier FBI program.
On further review by the Inspector General, it was revealed
that the FBI failed to recognize the significant risk posed by
the systemic noncompliance with the Woods Procedures, which
provide the factual justification for FISA applications.
In May of this year, Special Counsel John Durham released
his report on the FBI's Crossfire Hurricane investigation. That
report not only backed up Inspector General Horowitz' findings
but also found that political and confirmation bias by FBI
employees led the FBI to lie to the Foreign Intelligence
Surveillance Court and illegally spy on the Trump campaign for
an entire year.
In the recent investigation of Special Counsel Durham, he
found that some FISA applications ultimately arose from sources
close with the Kremlin who were known to be targets of ongoing
U.S. investigations related to fraud and espionage. Durham
concluded that the FBI ran with the first justifications found
to spy on the Trump campaign despite clear indications of
foreign unreliable sourcing. These reports detail only a
fraction of the government's abuses of the FISA program.
At the end of this year, Section 702 of FISA will expire.
Section 702 does not require a warrant or any other
justification to an independent arbiter such as a judge or
magistrate before the government agent can query databases
about an individual who is a U.S. citizen.
Reports in recent years have exposed the government's and
specifically the FBI's abuse of this program. The law designed
to provide tools to collect foreign intelligence and prevent
terrorist attacks has been worked into a domestic spy tool that
has been used millions of times over the past three years to
target Americans.
In 2021, the FBI queried the communications of over 3.3
million--communications more than 3.3 million times and of more
than one million discrete U.S. citizens. In 2022, the FBI
conducted thousands of U.S. person queries.
A recent FISA Court opinion revealed that the FBI conducted
more than 278,000 improper searches of U.S. persons'
communications in 2022, including those of people who attended
protests, 19,000 donors to a Congressional campaign, and, in
another instance, the FBI looked at the communications of those
very donors. Think about that. Nineteen thousand people on a
donor list were being queried and looked at by the FBI simply
because they did donate.
As Congress considers whether to reauthorize this program,
this Committee will be at the forefront and has the opportunity
to shed a light on the broad issue of warrantless mass
surveillance in violation of the Fourth Amendment. We must
consider whether FISA and Section 702 can be reformed or if
it's beyond repair.
I, for one, see no reason for Members on either side of the
aisle to trust the FBI with this tool. The FBI has used FISA,
specifically Section 702, to spy on Americans to violate the
Fourth Amendment and conduct warrantless searches.
FISA Section 702--let's see here. It's clear that the
government is using communications acquired through this
program to conduct backdoor searches, which I think we'll hear
more about today. Most of this is done without a warrant.
Section 702 information acquired without a warrant can later be
used by the FBI in criminal prosecutions unrelated to foreign
intelligence or national security. The FBI has misused
privileged spying powers to conduct rogue surveillance on
innocent Americans, and we cannot allow that to continue.
I've called for serious reforms or full repeal of FISA for
years. I think it is built on a dubious Constitutional
foundation. The FBI has used this tool designed for foreign
surveillance to spy on Congressional donors, January 6th
protestors, Black Lives Matter protestors, and even elected
officials, including one of our own Congressional colleagues.
We must end those warrantless--we must end warrantless
surveillance of Americans and hold accountable any Federal
official who violates the civil liberties of Americans.
Make no mistake, actors within the FBI and other similar
Federal agencies who continue to conduct unlawful and
unconstitutional surveillance of Americans should be brought to
justice. Some argue that these are no more invasive than a
stop-and-frisk Terry stop, but at least in a stop-and-frisk,
you have personal contact and actual communication between the
target and the government agent. I suggest that even a 702
query is more akin to a wiretap, which requires a warrant
before executing that query, that wiretap. The FBI claim now is
that it's OK because it has put in place new protocols and new
software. Unlike a warrant, all the FBI measures rest
ultimately on post-action review, and it's not by an
independent arbiter.
I continue to believe that we will be able to work across
the aisle with our colleagues because so many of us agree on
this issue, and I extend my hand to them and look forward to
working with Ranking Member Jackson Lee and other Members of
this Committee as we confront this serious issue.
Again, I thank those on the panel for being here today. I
thank our witnesses and those in the audience.
I yield back and now recognize the Ranking Member, Ms.
Jackson Lee, for an opening statement.
Ms. Jackson Lee. Mr. Chair, thank you so very much. I am
very pleased to join you in convening today's hearing on the
Foreign Intelligence Surveillance Act, or FISA.
As I indicated during Part I of our examination of FISA,
this Subcommittee has a critical role to play in the
reauthorization of Section 702, which expires in less than six
months.
Let me acknowledge all my colleagues that are present here
today, in particular Ranking Member Nadler. The two of us may
be the only ones present that were here when the Judiciary
Committee single-handedly had to put a pause on the PATRIOT Act
and begin to address some of our concerns after 9/11. Even in
that dastardly devastating loss of life, it was important to
recognize that we are a Nation of laws and the Constitution and
to be able to respond at that time.
I know that the thousands of agents across America have as
their general premise to investigate crimes as FBI agents and
to follow the law and to protect the American people. That I
will acknowledge. We had the opportunity to be briefed just a
few days ago by members of the FBI, and I will acknowledge that
there is a critical understanding of the challenges that we are
now facing. Congress is the arbiter of the Constitution and the
responder to the American people and the protector of the
American people's Constitutional rights.
With that in mind, this vital set of provisions under
Section 702, which has been the subject of much scrutiny and
criticism, permits the Federal Government to collect foreign
intelligence targeting non-U.S. persons outside of the United
States without obtaining individualized orders. It is, of
course, a unique provision.
While I expect that today's witnesses will discuss many of
those criticisms, I hope that we're able to have a constructive
conversation about the ways in which Congress can make certain
that U.S. persons are not ensnared in the web of international
surveillance. I will look forward to their insight because we
will act. Congress must act. Beginning with the Foreign
Intelligence Surveillance Act, which first passed more than 30
years ago, to address abuses in collecting and using foreign
and domestic intelligence, the government must show not only
that there is probable 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.
Following the 9/11 attack and significant advancements in
technology, the foreign intelligence gathering needs of the
country shifted considerably yet were often stymied by the need
to obtain individual FISA Court orders for overseas
surveillance, which requires substantial manpower, as presented
to Congress by law enforcement.
In response, Congress passed the FISA Amendment Act, FAA,
of 2008 that authorized the Federal 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. Congress has
granted agencies within the U.S. intelligence community this
authority through FISA and Section 702 so that they may gather
foreign intelligence information to seek out, pursue threats
from foreign terrorists and Nation-states that mean to harm us.
Together these statutes have been vital to the protection
and safety of Americans. However, as we consider
reauthorization of Section 702, we must be certain that we are
not conceding, very clear, the Constitutional rights of
Americans in the name of national security. That is what makes
America unique. That is what is the grounding of the
Constitutional pillars that are our definition. FAA requires
intelligence agencies to design targeting procedures to limit
the scope of collection before the government acts and
minimization procedures to limit the use of information about
U.S. persons after the government incidentally collects that
information.
The Foreign Intelligence Surveillance Court reviews these
procedures for legal sufficiency. Although the statute includes
protections for U.S. persons whose information is inadvertently
collected but not constitutionally subject to targeting, we
know that the NSA and DOJ have repeatedly reported the
unauthorized use of backdoor searches of the 702 databases. As
a release from The Brennan Center pointed out, internal
oversight measures hailed as robust failed to prevent flagrant
abuses, including 133 warrantless searches aimed as Black Lives
Matter protestors and 19,000 searches for communications to a
single Congressional campaign.
We're also faced with considering what guardrails are
appropriate to prevent Federal agencies from evading the legal
protections of Americans' privacy by purchasing data from data
brokers.
These and other problems with FISA and Section 702 have led
several of my colleagues, particularly Chairs Jordan and Biggs
and all of us, to take a position averse to reauthorization of
Section 702 in its current form.
Since this is the second hearing of this subject, I hope
that my colleagues are obtaining sufficient information to help
us reach a compromised position to move this reauthorization
forward and to acknowledge that all of us have criticisms, but
I think what is broken needs to be fixed.
Given the threats facing our Nation, from the ruling
Chinese Communist Party that represents both the leading and
most consequential threat to U.S. national security and
leadership globally, according to Director of National
Intelligence Avril Haines, to terrorist groups such as ISIS,
al-Qaida, and Hezbolla, that continue to plot attacks against
the United States, it is critical that we take appropriate
action before the expiration of government authorities under
this provision and simply make it right, make it correct, make
it constitutionally infrastructured, if you will, to be able to
function for what is needed and to protect the American people.
That is why I will reiterate my thoughts from Part I of
this conversation. We worked together to pass USA Freedom Act
in 2015, demonstrating that we're capable of building consensus
around our common values dedicated to privacy, transparency,
and protection from unreasonable searches and seizures. Let us
do so again together, on behalf of the American people,
reshaping these critical tools so that they serve the
government's needs and are also protecting the privacy of every
American.
I look forward to the testimony of our witnesses and yield
back, Mr. Chair.
Mr. Biggs. Thank you. I thank the Ranking Member Jackson
Lee.
Now, the Ranking Member of the entire Committee, Mr. Nadler
from New York.
Mr. Nadler. Thank you, Mr. Chair, and thank you for
continuing this Committee's important work on FISA
reauthorization and on the overall question of the warrantless
acquisition of U.S. person information.
At our last hearing, we heard from government watchdogs who
described the FBI's ongoing compliance issues with Section 702.
Today I hope to hear from the witnesses about the impact of
these violations, even when they are unintentional, and about
what changes this panel believes would make inappropriate
queries of the 702 database all but impossible.
As I said at the beginning of our last hearing on this
topic, I have never voted to reauthorize Section 702. I am
deeply uncomfortable, as we should all be, with the legal
fiction that it is permissible for the government to search our
most private communications without a warrant simply because
they were aiming for non-U.S. persons overseas. I understand,
however, that this authority is becoming increasingly important
to our national security, and so I will entertain reauthorizing
Section 702, provided that we meet this basic privacy challenge
head-on.
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. person data are swept up under this
problematic surveillance. We also know from what reporting is
available that the government has a lot of this data, that much
of it could not have been obtained without a warrant had they
tried to collect it directly.
As the reauthorization debate has begun in earnest, the FBI
has assured us that they only receive a small percentage of the
total information collected under Section 702. We cannot
discuss precise numbers in this setting, but nobody should take
comfort in the fact that the FBI only has access to some
portion of a staggeringly large volume of information,
including vast amounts of data about U.S. persons.
The FBI has also demonstrated, after two decades of
tinkering with the system, an improved training and the
reconfiguration of their database has reduced the number of
improper queries of Section 702 information by roughly 90
percent this past year alone. That is no small feat. I wonder
where this debate would be today if the Department of Justice
and FBI had taken the noncompliance problems seriously years
ago.
Again, it is difficult to find comfort in the percentages.
If two years ago there were two million improper queries and
last year there were only 200,000 improper queries, we are
still left to contend with 200,000 successful attempts to
sidestep our Constitutional protections.
In a recent briefing, the FBI and the Department of Justice
told our Members and our staff that one cause of noncompliance
was a simple misunderstanding, in quotes, of the legal
standards under Section 702. That was their term,
``misunderstanding.'' I have no doubt that FBI personnel in
field offices across the country may have had trouble
interpreting the law, and I'm pleased that the administration
is correcting course, but I find it deeply troubling that the
FBI would blame its field offices for a problem that clearly
originated from its leadership.
Let's tell the stories that actually happened. Congress
last reauthorized Section 702 in 2017. Over the course of the
next few years, DOJ and the FBI diverged on how to interpret
the legal standards for searching the Section 702 database. The
FBI told us at the time that it was perfectly appropriate for
the Bureau to take a looser view of the statute, an approach
that ultimately gave them more access to our private
communications. This was not misunderstanding. It was a
deliberately maximalist interpretation of the law.
The scathing FISA Court opinion that has been released
since our last year hearing, the one that showed the FBI
querying the database for particular campaign donors, George
Floyd protestors, and January 6th suspects is a direct rebuke
of that interpretation.
I understand that the FBI has since corrected course. I'm
deeply gratified that the leadership of the Department of
Justice took control and decided to adhere to the limits
Congress put in place. This so-called misunderstanding really
gets to the heart of the matter.
Chair Biggs and I agree on very little, but here is one
place we agree. Whatever we think of the last administration,
whatever we think of the current administration, we cannot
count on the next administration to get this right. We have to
build a Section 702 regime that fully respects our privacy, no
matter who is in charge, not 90 percent of our privacy; all of
our privacy. The changes the FBI has made to this program in
the run-up to reauthorization are welcomed, but they're
insufficient.
I look forward to hearing from our panel today about what
else we must do to correct this program before it can be
reauthorized.
Thank you, Mr. Chair. I yield back.
Mr. Biggs. Thank you, Mr. Nadler.
Without objection, all other opening statements will be
included in the record.
We will now introduce today's witnesses. I'm very excited
to welcome this august panel.
Professor Jonathan Turley, Professor Turley is the J.B. and
Maurice C. Shapiro Professor of Public Interest Law at the
George Washington University Law School. He's a nationally
recognized legal scholar who has written extensively in areas
ranging from Constitutional law to legal theory.
Thanks for being here, Professor.
Mr. Phil Kiko is a Principal at Williams & Jensen, PLLC. He
is a former Chief Administrative Officer of the House of
Representatives and has served in a number of positions with
Members of Congress and Committees, including this Committee,
the Judiciary Committee.
Thanks for being here, Mr. Kiko.
Mr. Gene Schaerr is a partner at Schaerr Jaffe, LLP, and
serves as the General Counsel at the Project for Privacy and
Surveillance Accountability. The Project for Privacy and
Surveillance Accountability advocates for greater protection
for Americans' privacy and civil liberties in government
surveillance programs.
Thank you for being here, Mr. Schaerr.
Ms. Elizabeth Goitein--am I close?
Ms. Goitein. Very. It's ``Goitein.''
Mr. Biggs. Goitein, OK. Ms. Goitein is the Senior Director
of the Brennan Center for Justice's Liberty and National
Security Program. Her work focuses on Presidential emergency
powers, government surveillance, and government secrecy.
We welcome each of you here today. We thank you for
appearing. I think we're all very excited to hear what you have
to say, particularly potential remedies and reformation
recommendations.
We will begin by swearing you in. If each of you would
please 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 all answered in
the affirmative.
Thank you. Please 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. I will begin tapping
just before that five minutes so you are aware that your time
is about to expire, and the floor will open up, and your Chair
will disappear. No, that really won't happen. I can't believe I
said that. I'm not filtering. Anyway, I'll try to filter.
Professor Turley, we recognize you for your five minutes.
STATEMENT OF JONATHAN TURLEY
Mr. Turley. Thank you, Chair Biggs. Thank you, Ranking
Member Jackson Lee, and thank you, Ranking Member Nadler, and
all the Members of the Subcommittee. It's an honor to speak to
you today about FISA and the reauthorization of Section 702.
Today's hearing will raise admittedly difficult legal
questions, and there's some questions, however, that should not
be in doubt. There's no question that the FBI and other
agencies have continued to defy Federal law and abuse their
powers under FISA. There's no question that both the courts and
Congress have been misled in the use of FISA in prior years.
There's no question that the scope of the harm to privacy and
Constitutional rights has been immense. The only question is
what you're going to do about it. I think it is a significant
moment in today's deeply divided politics that not only are the
witnesses on this panel largely united in our views, but it
appears that many of the Members of both parties are as well.
Quite frankly, the FBI is back, once again, at a
reauthorization, as Ranking Member Nadler mentioned, saying
that ``you can trust us.'' For those of us who have been
critical of FISA, it is an exercise of really breathtaking
audacity, including, as Congressman Nadler stated, ``the
continued reference to misunderstanding laws after years of
litigation and discussion of those laws.''
If we reauthorize Section 702 without significant changes,
then we have a become a Nation of chumps. It's not like this is
being held from us as facts. We have documented evidence of
massive violations of the privacy of U.S. citizens. So, this is
not something that is being hidden. It's in plain sight.
Now, obviously, one of the possible responses from Congress
can be simply to let this provision sunset. You just go back to
the way it was in 2008. That would convey an important
deterrent for agencies that, if you abuse it, you lose it, and
this would certainly warrant that type of response.
Assuming that you want to add guardrails, there are a
number of things that I've suggested in my written testimony--
my colleagues have recommended others in theirs--these include
ending backdoor searches, strengthening minimization standards,
barring parallel construction, dealing with commercially
available information as a circumvention of Constitutional
protections, and the creation of special advocates in the FISA
process.
When Ronald Reagan famously talked about the Russian
proverb ``Trust, but verify,'' we actually have our own such
proverb or viewpoint, and that was contained in Federalist No.
51 when James Madison said, ``you can never have government
where you trust on the good motivations of the government
itself.''
This was part of his discussion that, if all men were
angels, no government would be necessary. He said, ``that the
key to good government was to oblige the government to control
itself.''
FISA fulfills Madison's worst expectations. That trust has
been repeatedly violated by the FBI and other agencies. So,
once again, I ask, what are you going to do about it? Now,
government power is a lot like gas in a closed space. If you
expand the space, the government will expand evenly to fill it.
If you allow a crack, the gas will escape. Section 702 wasn't a
crack. It was a wide-open door that allowed for these types of
violations to occur, this pretense of incidental violations of
privacy.
I won't get into the specific details right now, but I'll
be happy to talk about them. I do want to know, one of the
suggestions that I make is for the creation of special
advocates. As was mentioned earlier, Congress did create amicus
as part of FISA. That system was commendable, but it has been
an utter failure in my view. We need the creation of a
different type of advocate within the FISA system. Just as
there are advocates to protect our security in FISA, there
should be advocates protecting our privacy in FISA, and we need
to create a firm, structured role for that. In many ways, the
Vatican had the devil's advocate that often had to present
evidence against the wishes of the Vatican. We have to have the
same process at FISA.
Thank you very much for the opportunity to speak today, and
I'd be happy to answer questions.
[The prepared statement of Mr. Turley follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you, Professor Turley.
Mr. Kiko, you're recognized for your five minutes.
STATEMENT OF PHILIP G. KIKO
Mr. Kiko. Chair Biggs, Ranking Members Jackson Lee and
Nadler, it's an honor to testify before this Committee.
I was asked to share my experience in successfully
assisting and crafting complex antiterrorism legislation, in
particular, the USA PATRIOT Act and its progeny, and to provide
some perspective associated with the issue of 702 expiring at
the end of this year.
A little background. Following widespread wiretapping and
surveillance abuses, Congress originally enacted FISA to make
sure that government agencies must secure authorization to
gather foreign intelligence. In addition, FISA created two new
Article III courts. The most significant later reforms in FISA
were the enactment of the PATRIOT Act as a result of the
attacks. The pressure on this Committee to do something after
the 9/11 attacks was enormous. However, the Committee came
together, considered all the options, formal hearings were held
to discuss new antiterrorism authorities. We had a lot of
unofficial late-night sessions. Committee Members sitting at
the dais here, the Committee sought input from everyone; the
door was wide open to craft the PATRIOT Act.
One of this Committee's top bipartisan priorities was to
ensure that we protected not only our national security, but
our cherished civil liberties, and that core principle has been
the hot point of contention in every FISA debate.
The PATRIOT Act provided enhanced investigative tools to
prevent the future terrorist activities and the prevention of
preliminary acts in crimes to further such. It amended FISA by
creating 16 new authorities. Looking back, one of the best
things Congress did was to incorporate the sunset provisions.
The idea of sunsetting these authorities was not popular at the
time, particularly with the Justice Department, but the PATRIOT
Act would be enacted with its extraordinary new powers and
safeguards to civil liberties. Only the sunset provisions were
there to preserve Congress' power to change the law.
Since 9/11, FISA has been amended several times, including
the addition of 702 in 2008, and it created procedures to
collect foreign intelligence when communications travel to the
United States communication infrastructure. It was designed to
target non-U.S. persons reasonably believed to be located
overseas, and it was viewed as a vital tool to protect
Americans, including our men and women in uniform.
Have the law enforcement agencies and intelligence
communities earned our trust to retain those expansive
authorities? I would say the answer I think is no. My written
statement goes into the problems in detail, and this Committee
knows more than ever the myriad of ways in which the failures
have occurred.
I should add this frustration is not a partisan one. Since
the leak of the Snowden documents, the public disclosure of
abuses that resulted in the passage of the USA Freedom Act, we
have continued to witness serious escalating concerns
surrounding misconduct and abuse of civil liberties. The public
record is replete with abuse. The public trust has
deteriorated.
Obviously, something needs to be done. Traditional
oversight is not good enough because it always looks backward
after the damage has been done. When an agency abuses statutory
construct, whether intentionally or through malfeasance or
through negligence, there needs to be consequences for bad
behavior. The lack of any consequences for these abuses
compounds the lack of trust. Let's make the system more
accountable.
As for oversight, how can there be effective oversight when
so few clearances of Congressional staff there is. Probably, of
all the people that are doing oversight on the House side, I'd
say more than--there's not more than 15 or 20 people that have
the clearances that really goes. So, how are you going to do
effective oversight? Trust me, they understand that in the
agencies.
So, 702 expires this year. The important provisions should
not be lost if for no other reason than FISA was enacted to
constrain. However, there's been abuse. If Congress decides to
let it expire, which is their prerogative, then figure out a
way to legislate a different mechanism to replace it.
I stand ready to assist in any way I can. Thank you very
much.
[The prepared statement of Mr. Kiko follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you, Mr. Kiko.
Now, I recognize Ms. Goitein for your five minutes. Thank
you.
STATEMENT OF ELIZABETH GOITEIN
Ms. Goitein. Thank you.
Chair Biggs, Ranking Member Jackson Lee, and Ranking Member
Nadler, and Members of the Subcommittee, thank you for this
opportunity to testify on such an important topic.
Section 702 was passed to enhance the government's powers
to conduct surveillance of foreign terrorists. Today, according
to the government, it's used to combat a range of foreign
threats, including cybersecurity attacks, fentanyl trafficking,
and Espionage Act. Of course, if that were all Section 702 were
used for, we wouldn't be here today. The reason that this
authority is so controversial and the reason it should not be
reauthorized without far-reaching reforms is that it's become a
rich source of warrantless access to Americans' communications.
How did this happen? Section 702 authorizes warrantless
surveillance. Therefore, it can only be targeted at foreigners
abroad. The surveillance inevitably sweeps in Americans'
communications because Americans communicate with foreigners.
If the government's intent were to spy on those Americans, it
would have to get a warrant in a criminal investigation or a
FISA Title I order in a foreign intelligence investigation.
So, to prevent the government from using Section 702 as an
end run around these Constitutional and statutory requirements,
Congress did two things. It required the government to minimize
the retention and use of Americans' information, and it
required the government to certify that it is not using Section
702 as a backdoor to spy on Americans.
These protections have proven to be meaningless. All the
agencies that receive Section 702 data conduct warrantless
electronic searches of that data for the express purpose of
finding and retrieving Americans' phone calls, emails, and text
messages. The FBI conducted 200,000 of these backdoor searches
in 2022 alone. This staggering number leaves no doubt that
Section 702 has become a domestic spying tool, one that allows
the government to circumvent the protections of the Fourth
Amendment and FISA.
Now, Congress and the FISA Court have an attempted to put
some limits on this practice, but agencies have routinely
violated those limits. In 2018, Congress enacted a warrant
requirement that applies to a very small fraction of the FBI's
backdoor searches. This requirement has been triggered roughly
100 times. By the government's own admission, the FBI has never
once complied with it.
The FBI has also engaged in widespread violations of its
own rules for backdoor searches according to the FISA Court.
These violations include searches for the communications of
more than 130 racial justice protestors, thousands of people
suspected of involvement in the January 6th attack on the U.S.
Capitol, 19,000 donors to a Congressional campaign, and
multiple U.S. Government officials, journalists, and political
commentators.
The starting point for any conversation about reauthorizing
Section 702 must be a requirement that the government obtain a
Title I order or a warrant before searching Section 702 data
for Americans' communications.
That's only the beginning, because if Congress stops there,
the government could exploit gaps in the law to obtain much of
the same information, not just without a warrant but without
any legislative limits or judicial oversight.
For instance, generally speaking, FISA only applies when
the government collects information inside the United States or
from U.S. companies. This geographical boundary is a holdover
from a time when domestic surveillance usually meant
surveillance of Americans, and overseas surveillance usually
meant surveillance of foreigners. In the digital age,
Americans' communications are likely to be rooted and stored
overseas as they are in the United States. Overseas
surveillance can, therefore, have just as great an impact on
Americans' privacy as domestic surveillance. Yet, for the most
part, the government writes its own rules for overseas
collection, and those rules expressly permit bulk collection
and backdoor searches.
There are also gaps in FISA's exclusivity provision that
allow the government to treat certain parts of FISA as
optional. For instance, FISA appears to require the government
to obtain a court order to collect American cell phone location
information. The government can and does obtain access to vast
databases of this highly sensitive information by purchasing it
from data brokers.
There's little point in closing the backdoor search
loophole if the government can simply pivot to other loopholes
in the law. Meaningful reform of Section 702 will require a
comprehensive approach to reining in warrantless surveillance
of Americans.
Thank you. I look forward to your questions.
[The prepared statement of Ms. Goitein follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you very much.
Now, we'll go to you, Mr. Schaerr, for your five minutes.
STATEMENT OF GENE SCHAERR
Mr. Schaerr. Thank you, Chair Biggs, Ranking Member Jackson
Lee, Ranking Member Nadler, and other Members of the
Subcommittee.
It's an honor to appear before you today on behalf of our
civil liberties organization, the Project for Privacy and
Surveillance Accountability, or PPSA. We work with groups
across the spectrum to address government surveillance abuses
and encroachments on the Fourth Amendment, and I'm here to urge
you to treat the expiration of FISA Section 702 as a once-in-a-
generation opportunity for Congress to reassert its rightful
Constitutional prerogative to broadly determine when, why, and
how Americans can be surveilled by their own government. To
that end, with our allies, we have urged Congress to enact
comprehensive reforms that implement five key principles
designed to protect Americans' privacy without sacrificing our
security.
Today I'll focus on just three of those principles and how
they can help you bring all government surveillance of
Americans with appropriate statutory guardrails and oversight.
By the way, although I represent Carter Page and many other
clients, I'm appearing today only on behalf of PPSA.
The first principle that we've urged flows from the
consent-of-the-governed concept articulated in the Declaration
of Independence and then embodied in Article 1 of our
Constitution. It is that American citizens should not be
subject to surveillance by their own government without their
implied consent, in the form of a statute duly enacted by their
representatives here in Congress. Americans shouldn't be
subject to surveillance merely at the whim of the FBI or any
other executive official, none of whom has authority to consent
to surveillance on our behalf. Yet, under administrations
headed by both parties, the CIA, for example, has exploited
technology-created gaps in FISA's reach to conduct a bulk
collection program that sweeps up much of Americans' sensitive
data. Similarly, as we've heard, the FBI routinely conducts
backdoor searches of information collected under Section 702,
and we've also heard the government routinely buys our most
personal information from third-party data brokers. Without a
clear statute governing all surveillance activities, Congress
will be doomed to forever playing whack-a-mole with the
surveillance agencies.
The second principle is that, as Ms. Goitein said, ``any
government access to Americans' communications or other private
data should be undertaken only pursuant to a probable cause
judicial order.'' Such a warrant or other order provides at
least some assurance that the government has a specific concern
that justifies the surveillance. A probable cause order
requirement, moreover, should not apply just to direct
surveillance but also to more indirect forms of surveillance,
like searching for information about Americans in the database
of purchased information or in the massive trove of data
compiled under Section 702.
On that point, you've already heard many examples of
overreaching backdoor Section 702 searches--and I won't repeat
them--but the potential for abuse of purchased data, including
geolocation data and other Fourth Amendment protected
information, is, if anything, even greater. Currently, neither
of these indirect forms of surveillance is meaningfully
constrained by statutory guardrails or judicial oversight. They
should all be subject to a probable cause order requirement
similar to the requirement for surveillance under FISA Title I.
The third principle is that any surveillance of Americans
should be subject to adequate mechanisms in both Congress and
the Judiciary to ensure accountability for compliance with
governing law. That's important because, as we know, the
current system is rife with violations.
The Chair mentioned earlier the DOJ inspector general
report that found so many violations of the requirements
applicable to applications to the FISA Court, and those
problems highlight the need for an enhanced system of having
civil liberties experts or amici advise the FISA Court in
sensitive investigation along the lines of the Lee-Leahy
Amendment that a couple of years ago passed the Senate
overwhelmingly.
More generally, any revamp of FISA must go well beyond
ensuring that Congress has the tools to adequately oversee
surveillance agencies. That revamp must also include enhanced
penalties for violating statutory guardrails, for lying to
courts, for refusing to comply with statutory reporting
requirements, and other meaningful consequences for misbehavior
or stonewalling.
As the people's agents, you can stop this game of
surveillance whack-a-mole. You can do that by asserting your
Constitutional authority against an Executive Branch that under
both parties is too often overbearing and against the Judicial
Branch that too often gives the Executive an undeserved benefit
of the doubt. Please don't let this rare opportunity slip away.
[The prepared statement of Mr. Schaerr follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you, Mr. Schaerr.
I now recognize the gentleman from Florida, Mr. Gaetz, for
his five minutes.
Mr. Gaetz. Ms. Goitein, many of my constituents will watch
this hearing, and they'll say: Well, the Foreign Intelligence
Surveillance Act, I'm not a foreigner. Why should that bother
me?
What would you say?
Ms. Goitein. Americans' communications are swept up in
enormous volumes, so enormous that the government won't tell us
how big it is because it would be a very awkward number for the
government to disclose. I suspect that's the real reason. Those
communications are available to FBI agents without a warrant or
a court order of any kind.
Mr. Gaetz. You talked about these backdoor searches, and
that's been an intense focus of the Committee. Could you help
define that for folks, so they understand the risk there?
Ms. Goitein. Sure. What a backdoor search is, is an
electronic query of data obtained under Section 702. So, the
communications are obtained. They are placed into data systems
at the NSA and then shared with the FBI, the National
Counterterrorism Center, and the CIA. Then agents can run
electronic queries of those data systems using identifiers
associated with Americans, so using an American's email
address, for example. They can plug that in, and that will
return any communications that were obtained under Section 702
that have an American on one end of them and then--
Mr. Gaetz. It almost feels like there's a digital file out
there about millions of Americans, and I'm sort of wondering
how--and we've tried to get straight answers from folks who
work in the government about this question, but what we've
learned is it's upwards of 10,000 people who can conduct some
of these backdoor searches.
Have any of your studies evaluated the breadth of
individuals who can engage in this violation of our civil
liberties?
Ms. Goitein. No. We don't know the number, but I think--
Mr. Gaetz. Isn't that scary? Shouldn't we--it seems like
something we should know; how many people can do backdoor
searches and information that was not collected pursuant to any
probable cause or a warrant.
Ms. Goitein. Yes, it would be a good thing to know. One of
the reasons why I think we should be curious about it is
because the government has told the FISA Court that one of the
reasons for all these violations we've seen is that FBI agents
didn't understand the standard for those searches, and that
standard is that the search has to be reasonably likely to
obtain foreign intelligence or evidence of a crime.
That doesn't sound like rocket science to me, and that
standard has been in place for 15 years.
Mr. Gaetz. They break it--I just read an order from the
Foreign Intelligence--the FISC, the court, and the court said:
``Well, you weren't just using these searches and queries to
get legitimate law enforcement information.''
At times people at the FBI were searching, themselves,
searching their ex-lovers, searching their neighbors in this
system. So, it seems as though they're not really--there's not
a standard that is adhered to.
Ms. Goitein. It's adhered to often in the breach. There
were 278,000 violations of that standard in 2021.
Mr. Gaetz. If you've got 278,000 violations of the
standard, as you've said, the breach is the standard in a lot
of ways.
So, we have this tactical question coming up. We have FISA
that is set to expire, and I believe we should let it. I
believe it--the standard of violation of breach is so pervasive
that the patient is not savable, that we have to design
something totally different outside of 702.
Then I have other colleagues who are likeminded in my
desire to protect civil liberties but who suggest tactically
that the best broach is to try and insert strong warrant
requirements.
This is my seventh year in Congress. Mr. Kiko, I certainly
don't have your experience, but I want to draw on it because I
want to get your advice. I've gone down this road with the
Cheney-istas and others who bring us to the precipice of
reform, and then, at the last moment, it seems as though the
civil libertarians rarely prevail over those who purport to be
defending national security no matter how many violations of
our liberties occur.
So, would you advise a reform effort or an expiration
strategy, and why?
Mr. Kiko. Well, I would--that's a very tough question, and
I know that's why you asked it. I would--can actually see--my
preference would be some kind of reform effort with teeth and
accountability because there haven't been any teeth and there
hasn't by any accountability in the oversight that's been
conducted. At the end of the system, they say they're going to
do something. It never gets done; 4 years later we find out
there's massive violations. Everybody comes. Well, we're going
to do it this time.
There's no accountability among the people who are breaking
the law. There's no accountability among the administration. It
doesn't matter. There's nothing.
Mr. Gaetz. It sounds like there needs to be penalties.
Thank you for your testimony. I yield back.
Mr. Biggs. Thank you.
The Chair recognizes the gentlelady, the Ranking Member,
Ms. Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chair, and I
thank the witnesses very much.
Just a slight moment down memory lane, Ms. Goitein, and
something called COINTELPRO. I won't ask you to get in the
weeds, but it was used extensively against Dr. Martin Luther
King and the whole landscape of civil rights activists and
workers to give minimal liberties to African Americans during
the 1950-1960's.
So, here we are again with what was needed to be able to
protect Americans, and I think it's important to indicate that
the process was that, if there was communication and it was
with a foreign operative, foreign citizen, the FBI for
Americans would not be targeting you, not supposed to be, but
were targeting that foreign citizen or the communications
thereof.
How did we mess up so badly?
Ms. Goitein. Wow, that's a tough question.
What I would say is that FISA as enacted in 1978 required
the government to obtain an individualized court order showing
probable cause that the targeted surveillance was a foreign
power or an agent of a foreign power when domestically placing
a wiretap to collect communications between even foreign
targets and Americans, and that was to safeguard the Americans'
Constitutional rights that they have in that communication.
What Section 702 did is it got rid of that requirement, and
it enabled the government to say that, as long as it's
targeting a foreigner, we don't really have to worry so much
about the Americans' Constitutional rights.
Now, that's not actually what Section 702 says. It says:
``You're going to pull this in the American side of the
communications, but you should minimize it. You should delete
it. You should not share it.'' Unfortunately, that's not what
has happened.
Ms. Jackson Lee. So, that is--because I'm--that's the crux
of one of the elements of the problem?
Ms. Goitein. Absolutely.
Ms. Jackson Lee. There this mountain piles up, and no one
feels any compulsion, not compelled to say let me immediately
send it into the incinerator, throw it into the trash, et
cetera. It doesn't happen.
Ms. Goitein. Right. Even if the FBI comes across Americans'
information or other agencies, NSA, CIA, that doesn't even seem
to be foreign intelligence or evidence of a crime, they pretty
much don't get rid of it until it reaches the age-off deadline,
which is five years. It's five years with a lot of exceptions,
so it's five years or in many cases much longer.
Ms. Jackson Lee. Let me try to home in on what Americans
may be impacted by. With respect to these cases, this pile of
information which an agency has not complied with the
guidelines that Congress put in place and/or their own
policies, to your knowledge, has the evidence found in this way
typically excluded in a criminal case?
Ms. Goitein. Well, in most criminal cases, the government
doesn't give the notice to criminal defendants that is required
under FISA. There has been a long pattern of the government
evading its notice obligations. If the defendant doesn't know
that FISA has been used--that Section 702 has been used in that
defendant's case, there's no way the defendant can raise a
challenge, let alone have the evidence excluded. Most likely
the way that the government has been avoiding this notice
obligation is through parallel construction, which is a well-
documented practice of essentially recreating the evidence
using less controversial means.
So, one of the things that Congress should do, if and when
it reauthorizes Section 702, is to prohibit parallel
construction.
If I could quickly speak to Congressman Gaetz' question, I
think the problem with simply letting Section 702 expire is
that--
Ms. Jackson Lee. I will allow you to do so. The Chair is
going to give me a little bit more time if you answer.
Mr. Biggs. Oh, no, no.
Ms. Jackson Lee. If you'll go quickly.
Ms. Goitein. I'll go very quickly. Is that Congress will
then lose the opportunity to make necessary reforms to other
surveillance authorities and to close gaps that are in those
authorities that allow the government to operate without any
statutory authority at all. If Congress merely lets Section 702
expire, the government will shift its surveillance activities
to these other methods.
Ms. Jackson Lee. So, let me quickly get from you the
singular change, other than what we just talked about, parallel
construction, that we should be looking at.
Mr. Biggs. The gentlelady's time has expired, but you may
answer that question.
Ms. Goitein. If I have any message for you today at all is
that you cannot just go with one singular change. A warrant
requirement for backdoor searches is necessary. It is far from
sufficient. There are other reforms that need to be made not
only to Section 702 but also to overseas surveillance that
currently happens without any statutory authority, to the
practice of purchasing Fourth Amendment protected information
from data brokers, and several other reforms that I mentioned
in my written testimony.
Ms. Jackson Lee. Thank you.
I yield back.
Mr. Biggs. Thank you.
I recognize the gentleman from Wisconsin, Mr. Tiffany.
Mr. Tiffany. Yes, thank you, Mr. Chair.
The subject of this hearing, Mr. Chair, is fixing FISA.
Correct?
So, with all due respect, Mr. Kiko, I heard the comment you
made that was along the lines of that both parties agree. On
one of the most significant abuses of FISA, we do not have
agreement, and that was in regard to one President Donald J.
Trump. It was abused. Mr. Durham highlighted what an abuse it
was of FISA, and we have many people, including on this panel,
that still will not recognize that. That is dangerous for the
American Republic, because if you have a praetorian guard that
thinks they can take down a President, are we all free? Are we
all free?
Mr. Turley, building off from Mr. Gaetz' questioning, so
let's say we don't authorize. What will happen? Let's say we
didn't--will there be things that fill in the gaps? Do we have
existing law?
Mr. Turley. Well, thank you for asking that question,
because there is a--what economists sometimes call a path
dependency that can set in with these types of programs that
you can't imagine not having 702. I can because 702--and many
of the Members of this panel can because we were here. You were
in Congress. I was testifying when 702 was created. So, there
was an existence before 702--and Rome did not burn--that you
have a system that can handle it.
The question is whether Congress feels that these abuses
are so serious that you want to use a rule, that if you abuse
it, you lose it. This is not the first time the FBI has come
before you and said: Oops, you know, we misunderstood the law.
Oops, we did millions of improper searches. Oops, we actually
violated the privacy of citizens in exactly the way that people
said would happen.
At some point, Congress has to decide whether 702 was a
good path to take. If it decides to reauthorize 702, the
solutions are very, very clear.
Mr. Tiffany. Mr. Turley, if the people are not honorable in
those agencies, is it even fixable?
Mr. Turley. Well, part of the problem I had with Director
Wray's testimony this week is, when he talked about FISA, he
kept on saying that was that earlier Director. Well, the
Director may have changed, but the people in the FISA system
have not. There's been a consistent culture of violations here
that go back throughout the history of FISA. This gets to,
again, the sort of premise that was the flow of FISA of
trusting the government to act on good motivations. I think
that it's repeatedly shown, quite frankly, it cannot be trusted
with that level of discretion.
Mr. Tiffany. Unfortunately, I've only got five minutes
here. I want to get a couple more questions in.
Mr. Schaerr, so Mr. Gaetz, once again, said tactically what
should the reforms be. What would be one reform that you say
needs to be done if Section 702 is left in place?
Mr. Schaerr. Well, our--
Mr. Tiffany. Turn your mike on.
Mr. Schaerr. Several others have come up with a list of
reforms, and they're about--there are over 25 of them. Perhaps
the most important is the warrant requirement, the probable
cause requirement that we discussed earlier.
If I could just briefly answer the question that you asked
earlier, Congressman, as a former White House counsel, lawyer,
the answer that I would give to your question as to why it
would be a mistake just to let Section 702 expire is that you
then have a statutory vacuum, which the Executive Branch loves.
If you're a lawyer in the White House or the Justice
Department, you're going to ask--the question you're going to
ask is: If we do this, will we be violating any law?
If there's no law on point, your inclination is going to be
to ask: Well, does the President have an inherent authority to
do this thing that the intelligence community wants to do?
Of course, they tend to read Presidential authority
broadly. So, if there's no statute that governs the issue,
you're basically going to be opening the door to the White
House and Justice Department lawyers to come up with creative
rationales.
Mr. Tiffany. So, you're concerned that we'd be ceding
authority to the Executive Branch?
Mr. Schaerr. Absolutely, it's not their role.
Mr. Tiffany. What if there was a penalty of removal of
qualified immunity for somebody that abused this?
Mr. Schaerr. I think that's something that ought to be
considered.
Mr. Tiffany. OK. I got to get one more question in here.
Ms. Goitein, Mr. Turley did a terrific job of anticipating
my question.
Did you hear the testimony of Director Wray?
Ms. Goitein. I did not. I was busy preparing for this
hearing.
Mr. Tiffany. Well, I would just say to you that you were
incredibly prepared, and we really appreciate that.
Mr. Chair, I just want to say thank you for putting
together this panel. It's one of the finest that I've been
before.
Mr. Biggs. Thank you.
They have notified votes. They have called them. What we're
going to do here, so everybody knows, is I'm going to go to Mr.
Nadler for his questioning, and then we're going to recess
until after the votes, which would mean I would anticipate
somewhere between 11:15-11:30 we'll be back in this room. Sorry
about that interruption.
With that, Mr. Nadler, please.
Mr. Nadler. Thank you.
Let me first say that, with respect to what Mr. Tiffany
said, we may have a disagreement over whether FISA was abused
in a certain case, and not with respect to the former
President. That doesn't affect our deliberations now. We all
agree that FISA has been massively abused, and we've got to fix
it.
The idea of eliminating qualified immunity here is a good
one. I'd like to eliminate qualified immunity entirely.
Mr. Kiko, in the three months since this Committee last
held a hearing on FISA, we learned that the FBI conducted
unminimized warrantless backdoor searches of campaign donors,
George Floyd protestors, and many others.
If the FBI sought to search Americans' communications, no
matter the reason, they would normally need a warrant under the
Fourth Amendment.
Could you briefly explain to us why the court has found
warrantless searches of the 702 databases to be acceptable
under the Constitution, Mr. Kiko?
Mr. Kiko. I don't think a warrantless search is acceptable
under the Constitution, and that was what was anticipated when
the Fourth Amendment was created.
Mr. Nadler. No, we agree on that. My question is, why has
the court found warrantless searches of the 702 databases to be
acceptable under the Constitution?
Mr. Kiko. I haven't looked at that particular question, so
I would ask a panel Member to--
Mr. Nadler. Anybody else?
Ms. Goitein?
Ms. Goitein. I'd be happy to answer that.
The FISA Court has found that warrantless searches are
Constitutional. The FISA Court has essentially said, as long as
the initial collection was lawful, then you apply some kind of
lower standard to analyzing the queries rather than treating it
as a separate Fourth Amendment event.
However, Section 702 has recently made its way to the
regular Federal Courts. I say recently because for many years
the government was not providing notice to criminal defendants,
so there was no way to raise the issue.
In the past few years, regular Federal Courts have had a
chance to look at this question and there is a divide among
those courts. You have four District Court judges holding that
these searches are Constitutional. Then you have four Appellate
Court judges expressing serious Constitutional concerns.
The only Federal Appellate Court to rule directly on this
question was a unanimous three-judge panel on the Second
Circuit, which held that you do have to treat the query as a
separate Fourth Amendment event subject to its own
reasonableness analysis. The Supreme Court has made clear that
warrantless searches are presumptively unreasonable unless they
fall within an established exception to the warrant
requirement, such as consent or exigent circumstances. The
Second Circuit remanded to the District Court to conduct that
analysis.
So, the courts--it is far from settled that these queries
are Constitutional.
Mr. Turley. Mr. Ranking Member, could I just add one thing
as well to that? That is, this was a reference to the
Hasbajrami case in the Second Circuit, and I agree with
everything that is being said. One of the barriers that we see
in Federal Court is that people have been denied standing to
challenge these issues.
Mr. Nadler. Ms. Goitein, the number of searches conducted
among U.S. person identifiers went from 3.4 million in 2021 to
less than 120,000 in 2022.
Can you explain what remedial measures that DOJ put in
place to reduce the number and whether you consider these
changes sufficient to protect Americans from unwanted
surveillance?
Ms. Goitein. Sure. The FBI imposed some new training
requirements, some new oversight requirements. It changed its
data systems in various ways. These changes resulted in the
searches, as you say, going from 3.4 million to 200,000
searches.
Now, I would say that one warrantless search of Americans'
communications is too many. Two hundred thousand warrantless
searches? That's 500 warrantless searches for our
communications every day. That is just a jaw-dropping number.
The fact that the FBI seems proud of that number really tells
you how little regard they have for Americans' civil liberties.
They have made these changes according to the FBI's own
internal study. Noncompliance has been reduced to four percent.
I think there are a lot of reasons to question that number.
Even if you accept that number, four percent of 200,000
searches--
Mr. Nadler. That's a lot of people.
Ms. Goitein. --that's 8,000 searches every year that
violate the FBI's own low standards.
Mr. Nadler. Thank you, Ms. Goitein.
How can FISA be modernized to protect Americans'
communications that are inadvertently acquired through Section
702? What would be the impact of such changes in our national
security? How can they be--what should we do, in other words?
Ms. Goitein. Right. So, I think the solution is to require
a warrant or a FISA Title I order to conduct these queries. The
government has put forward absolutely no evidence and no reason
to believe that this would harm our national security.
After all this time, the government has managed to come up
with three examples of situations where U.S. person queries
were useful. The government has been very vague about exactly
how those queries happened or were used and how they produced
the benefit that the government is claiming. More importantly,
the government has given no reason to think that a warrant
requirement or a Title I order requirement would have prevented
the queries from occurring.
So, for example, there's the Colonial Pipeline ransomware
attack. In that case, the queries took place after the attack.
So, there would certainly be probable cause to support any
query that would return evidence of a crime. Similarly, there
were queries to try to identify and protect potential victims
of assassination plots.
Mr. Biggs. The gentleman's time has expired.
Ms. Goitein. I would argue that surely these potential
victims would have consented to a search had the FBI bothered
to ask.
Mr. Nadler. Thank you. I yield back.
Mr. Biggs. Thank you.
Again, thank you to the panel. Thanks for indulging us to
go vote. We hope everybody votes with me.
Anyway, we'll be back probably about an hourish, and feel
free to make yourself comfortable here. Thank you.
[Recess.]
Mr. Biggs. I call the hearing back to order. Thank you
again. I apologize for our recess.
The Chair recognizes Mr. Nehls for five minutes.
[Chart.]
Mr. Nehls. [Audio malfunction.] I wholly agree.
The FBI, on the other hand, has abused its FISA authorities
and violated Americans' Constitutional rights. In several
investigations and audits DOJ Inspector General Michael
Horowitz and Special Counsel John Durham exposed the extent to
which the FBI violated its FISA authorities.
For example, in 2019, the OIG issued a 478-page report
finding that the FBI has abused its FISA authority to illegally
surveil former Trump campaign associate and American hero
Carter Page. The report found 17 significant errors or
omissions and 51 wrong or unsupported factual assertions in the
application to surveil Mr. Page.
The FBI relied upon uncorroborated information to support
its application to surveil Mr. Page because they wanted to
keep--my opinion--Donald J. Trump, the greatest President in my
lifetime, from office.
Per the report, the FBI cherry-picked facts to support its
application, ignored exculpatory evidence, and even doctored
evidence presented to a FISA Court judge to support its
surveillance against Page.
The FBI's FISA applications to surveil Trump's associate
Page were based almost entirely on the debunked allegations in
the Steele dossier that had no probable cause.
I think it's very important that we go through Mr. Carter
Page, an American hero. In 1993, graduates from the Naval
Academy. So, wanted to serve his country. He worked as an Intel
Officer for five years.
Then you go forward. From 1993-2000, he begins working as
an Investment Banker in London, making some money; 2004 gets
promoted, moves to Moscow.
That's where things kind of get interesting. In 2007, Page
becomes an Internal Energy Consultant in Moscow and London.
Then, in 2008, the CIA, they begin debriefing Page about his
contacts with the Russians; 2009, now FBI counterintelligence
interview, they interviewed Page, in which Page told them he
was reporting information to the CIA.
So, back in 2009 already, the FBI, the CIA, they know who
Mr. Carter Page was.
In 2013, some Russian agents, in January 2013, some Russian
agents approached Page in an attempt to cultivate him as a
source. He rejects, of course. In April of the same year, the
FBI records one of the Russian agents complaining about Page
because Page wasn't working with them, he wasn't going to do
anything for the Russian agents. He's an American hero.
In June 2013, the FBI interviews Page again, and Page said
he was working, and he had spoken with the CIA. Page agrees to
cooperate as a key witness in the FBI undercover investigation
of the Russian agents that want to turn him.
So, he is working, he is doing everything he can for his
country, as he has when he started back in the Navy.
Then it gets interesting. March 2016, Page meets with the
FBI agents and Federal prosecutors about their case against the
Russian agents. One of those Russian agents was found guilty,
spent 30 months in prison. That couldn't have been done without
Carter Page.
Then, all of a sudden, this is where things get really
sour. March 2016, Page joins the Trump campaign as a Foreign
Policy Adviser. In April 2016, the FBI headquarters advises New
York Field Office to investigate Page.
Couple months later, in August 2016, FBI headquarters opens
an investigation of Page and prepares a request to eavesdrop
him under FISA. August.
The CIA sends a memo to the FBI headquarters and advised
the Crossfire Hurricane team that Page was an operational
contact for the CIA for five successive years, 2008-2013, and
the FBI does nothing. They do nothing with it.
What do we know? The FBI withheld this information from the
FISA Court, and the court approves the FISA warrant and
secretly surveils Page. Wow. Wow.
So, he is an American hero until he joins the Trump team.
You wonder why people up here feel that the FBI cannot be
trusted and why we say that they have weaponized the FBI to go
against the American people, specifically with a dissenting
point of view, like Carter Page and Donald J. Trump.
They haven't stopped yet. They continue to go up against
Donald Trump, whether it's Mar-a-Largo, whether its indictments
up there with the job in Manhattan.
It's just horrible what the FBI--we have to rein them in. I
will not support the idea of reauthorizing 702 for the FBI
until they get their house in order.
With that, I yield back.
Mr. Biggs. Thank you.
The Chair recognizes the gentlelady from Pennsylvania, Ms.
Dean.
Ms. Dean. Thank you, Mr. Chair, and I thank the Ranking
Member, for having this important hearing today, an important
moment of bipartisanship in the understanding that the FISA
application has gone horribly wrong. It is our responsibility
to do something about it.
So, I thank all the witnesses for being here today, for
your expertise and your historical understanding of where we
are and the grave moment that we're in.
The Foreign Intelligence Act, FISA, the Legislative Branch,
we're entrusted with making the laws of the United States. It's
our job to decide what the rules should be, delineating fair
from unfair, safe from unsafe.
Sometimes these decisions are straightforward and easily
guided by the Constitution and common sense. Other times the
decisions are more difficult. It feels like we're in one of
those places now with a clear-cut understanding that the abuses
of the FISA applications and queries are unacceptable.
We know we have a responsibility, as do the agencies, to
protect our national security, to protect us against crime any
time we can possibly do it. We must always protect civil
liberties, people's right to privacy, and our Constitutional
rights.
Ms. Goitein, I was interested in your very eloquent history
of what's going on here and what has happened. We do need to
review the FISA process.
What are the most, if you had maybe three areas of reform,
what would be the most important--I know it's denser than
that--but what would be the most three top areas of reform?
Ms. Goitein. I've been trying to narrow it down a little
bit because I know that that's helpful. It's difficult. There's
a lot that needs to be done. I think I can at least narrow it
to three buckets.
The first bucket is ensuring that Section 702 works as
intended. That means that it's not a domestic spying tool. For
that, we need to have a warrant requirement or a requirement of
a FISA Title I order before the government conducts U.S. person
queries of Section 702 data.
Part of the Section 702 reform also has to be narrowing the
scope of permissible surveillance so that the government is not
allowed to conduct surveillance of foreign targets who do not
reasonably pose any threat to the United States or have any
information about a threat to the United States.
That is actually a vicarious protection for Americans'
privacy, because the larger the scope of permissible foreign
targets, the greater the volume of incidental collection of
Americans' communications.
So, that's the Section 702 bucket.
Then, I would say that Congress needs to complete the
modernization of FISA by ensuring that Americans'
communications and Fourth Amendment-protected information are
protected from warrantless surveillance regardless of where in
the world the government obtains that information.
Then, finally, I would say that the Congress has to close
the data broker loophole. While we were on break, the House
passed by voice vote a bipartisan amendment, cosponsored by
Representatives Jacobs and Davidson and with a long bipartisan
list of cosponsors, which I'm not going to list because I'm
afraid I'll forget someone by accident, but the House passed an
amendment that would prohibit the Department of Defense from
buying its way around the Fourth Amendment and obtaining
Americans' Fourth Amendment-protected information by buying it
from data brokers.
That is proof of concept Congress can do this, and Congress
now needs to do that for all Federal agencies.
Ms. Dean. That is very helpful.
Mr. Kiko, thank you too for your testimony and your work on
this. We talked about whether to sunset and allow it to expire,
Section 702, or to reform it, as we've just had some
conversation around that.
What are the consequences of allowing 702 to simply expire
later this year?
Mr. Kiko. Well, I think allowing it to expire, you're
turning over the keys to Article II, to the Executive Branch.
We've had enough experience to know that even when they have a
statute, there are ways to weasel around it.
I just would be very--I mean, Article I is the Congress.
They're the ones that establish the law. We're going to have
to--my experience would be to draft something.
You're going to have to have close oversight. You're going
to have to bring the administration to heel for the
consequences of abuse. Also, we don't have to have it read as
broadly as it is for data purchases and for all this other
stuff that they have been somehow figured to have jurisdiction
over.
So, if you could narrow that, but really have tight
oversight and also consequences for people and agencies that
don't follow what the law is.
Ms. Dean. I thank you both.
I thank you, Mr. Chair. My time has expired. I yield back.
Mr. Biggs. Thank you.
The Chair recognizes the gentleman from California, Mr.
Kiley.
Mr. Kiley. Professor Turley, in your statement you quoted
Justice Brandeis' famous formulation of privacy as the right
``to be let alone,'' which I do believe is indeed one of the
rights most valued by Americans, and that most Americans would
be horrified to hear of the government having access to their
private communications.
There's something really fundamental about the separation
between the public and the private, the idea that each of us
has a sphere of personal privacy that is inviolable. That goes
to the heart of what it means to live in a free society.
Sometimes you hear a contrary view that, well, if you're
not doing anything wrong, what do you care if the government
has access to this?
What would be your response to that?
Mr. Turley. Well, thank you very much for that question.
What's interesting about the quote that you just cited is
that this was part of the Katz/Olmstead line of cases. Katz
said that, ``the Fourth Amendment is there to protect persons,
not places.'' It got rid of the trespass doctrine as the key
test for whether your rights are violated.
We've sort of returned to that because the location of a
lot of this data, if it's abroad, for example, or it's routed
through an international source, suddenly loses its protections
as a citizen.
So, to answer your question, how does that impact you? The
answer is that 702 and the abuses under that section impact
free speech, associational rights, a host of other
constitutional rights, because it creates a chilling effect.
That if citizens know that their communications are part of a
massive data bank, that the government can search and piece
together who you've talked to, who you sent to, you begin to
live in this fishbowl society. That impacts us as citizens, it
impacts how we exercise rights, which is what Brandeis was
referring to.
Mr. Kiley. Mr. Schaerr, we've been talking a little bit
about how this right was put into our Constitution by our
Founders in the form of the Fourth Amendment and how a lot of
the jurisprudence and our understanding of the Fourth Amendment
is rooted in this idea of a reasonable expectation of privacy.
So, we've heard that the law is, as far as the courts are
concerned, is a little bit unsettled when it comes to how that
applies to the situation we're talking about today.
So, in your view, is that a lens that Congress should look
through when deciding what to do about FISA, the reasonable
expectation of privacy that Americans have? How should that
apply to the gathering of information under Section 702?
Mr. Schaerr. Well, two points.
First, while Congress should take account of what the
courts have said on the application of the Fourth Amendment in
this setting, I don't believe, with all respect, that you as
Members of Congress should feel bound by what the courts say.
All of you--and I apologize if this comes across as a
lecture--but all of you have taken an oath to support and
defend the Constitution of the United States, not the
interpretation of the Constitution by some Federal District
judge in the Western District of Wisconsin or wherever he or
she may be. You have the ability, and I think the right and the
duty under the Constitution, to reach your own conclusions
about what the Fourth Amendment requires.
Second even Congress has an important role to play in
determining for the courts what is a reasonable expectation of
privacy and when do the people of the United States have a
reasonable expectation of privacy.
Even if some courts don't think that we have a reasonable
expectation of privacy in our electronic data, which, as we've
heard, may get sold to data brokers and then sold to other
people, Congress can step in and say, no, we think the people
of the United States do, in fact, retain a reasonable
expectation of privacy in their private data, even if it's held
by Google or Amazon or somebody else, and we, the Congress of
the United States, believe that Americans retain an expectation
of privacy and communications that have been collected pursuant
to 702.
Mr. Kiley. That's right. So, could we take the analysis a
step further?
So, I think most Americans would understand we live in a
dangerous world and intelligence gathering is very important.
Sometimes aggressive tactics are needed. It's possible that on
occasion information can be incidentally collected.
So, the question becomes, once that information is there
and in the government's hands, what do you think is the
reasonable expectation of Americans as to what is done with
that information, how long it's kept, who can access it?
Because that's really the question when it comes to reforming
FISA that we need to consider.
Mr. Schaerr. Well, certainly. If people have not expressly
consented to have that data collected and put into the 702
database, or wherever else it goes, it's fair to say that they
should retain an expectation of privacy in that data, even if
somebody else has it.
Therefore, Congress can say to the FBI, consistent with the
Fourth Amendment, if you're going to search that database of
purchased data, or if you're going to search the database of
702-
derived information, you need to get a probable cause order
from a court.
Mr. Kiley. Thank you very much. It's great to see the
bipartisan agreement on a lot of these principles.
I yield back to the Chair.
Mr. Biggs. Thank you.
The Chair recognizes the gentleman from Georgia, Mr.
Johnson.
Mr. Johnson of Georgia. Thank you, Mr. Chair.
Having practiced criminal defense law for 27 years and
acted as a judge for 12 years prior to my 17 years now in
Congress, I understand Fourth Amendment principles and
understand the concept of a reasonable expectation of privacy.
I cannot wrap my head around the concept of a reasonable
expectation of privacy in data that has been acquired over the
open market by anybody who wants it, like Russia, China, Iran,
or North Korea. That's data that is purchased every day by our
adversaries. Why should our own government not be able to
acquire that same data that we certainly have no reasonable
expectation of privacy in, given the fact that it's on the open
market?
However, we in this country can certainly rely on the
Constitution and its principles to protect our privacy,
especially when privacy concerns bump up against security
concerns.
We've lived through harrowing terrorist attacks on U.S.
soil and through attempts by foreign actors to meddle in our
national elections. That's why, while taking affirmative steps
to protect our civil liberties, we must give our intelligence
community the tools it needs to protect us.
Section 702 of the Foreign Intelligence Surveillance Act is
one of those tools necessary to protect our national security.
Due to the classified nature of much of the work that's
done under Section 702 FISA authority, Americans will never
know how it has kept them safe, the degree to which it has kept
them safe. They will, through politicians, hear of problems
with implementation of the legislation and demonization of
those who would access that information to protect us.
In the real world, law enforcement can control the street
to monitor suspicious activity. They don't need a reasonable
expectation of privacy to be out on patrol. We need to bring
real world processes to the cyber world, and Section 702 allows
us to do that, letting law enforcement patrol the information
highways to neutralize threats.
However, just as cops have certain limitations, the
intelligence agencies have limits on their ability to search
the Section 702 database when it comes to U.S. person
identifiers. If the agency's investigation is related to
national security, then a database search using U.S. person
identifiers is allowed when the agency believes it is, quote,
``reasonably likely,'' that such a search will retrieve foreign
intelligence or evidence of a crime.
If the agency's investigation is unrelated to national
security, then the agency must get an order from the Foreign
Intelligence Surveillance Court before it can search the
database using U.S. person identifiers.
In the past, it seems that the FBI has fallen short due to,
among other things, lack of proper training on the limitations
imposed on them by law. In this day and time, when politicians
recklessly demonize government in general, and the FBI and DOJ
in particular, the public is susceptible to claims that the FBI
willfully defies the law, abuses its power as a regular course
of conduct, and, as some have argued, is generally, quote,
``bad.''
I respectfully disagree with the assessment of the 38,000
employees of the FBI, including special agents and support
professionals, many of whom put their lives on the line every
day to protect us from danger, both foreign and domestic.
I would also point out that it's not about bringing this
administration to heel. These FISA excesses existed during the
Trump Administration and before.
I am heartened to see that the Department of Justice is
working hard to improve agency compliance with the civil
liberties protections in Section 702. I look forward to
continuing the dialog on how we can improve compliance with
Section 702, how we can improve the act itself.
With that, I will--well, I don't have time.
Mr. Biggs. Yes, you can't yield anything back. You don't
have any time left. Thank you, though.
Mr. Johnson of Georgia. Well, I said what I wanted to say.
Mr. Biggs. I know you did.
We will now recognize the gentlelady from Florida, Ms. Lee.
Ms. Lee. Thank you, Mr. Chair.
Thank you to all of you for being here today.
As we work to identify solutions and improvements to this
process, for us to have a panel such as this is extremely
helpful. So, we are very grateful to have your years of
experience and your background working in the subject matter
here with us today, both your written testimony and what you
have shared with us during this hearing.
A number of us commented, and I think it bears noting again
here today, the good work and integrity of so many of the men
and women of the FBI who work out in field offices across this
country.
However, that said, we are, of course, here to address a
very specific and serious concern, which is the misuse of FISA
and surveillance techniques. I believe there is broad agreement
here that we have much-needed reforms to discuss.
I'd like to go back, Mr. Schaerr, to some of what you've
testified about in parts of your written testimony that you
submitted to us.
So, we know that 702 is providing the FBI with access to a
large amount of information about Americans. One thing that you
have touched on when we look at the concept of potentially
creating alternative statutory schemes or potential revision,
the concept that the government is also utilizing other sources
of information, private data, other things to essentially
surveil or gather information about Americans.
I'd like to hear more about that subject and what you would
propose, if anything, we should be doing to try to monitor or
curtail that practice.
Mr. Schaerr. I assume that you're referring to the purchase
of data.
Ms. Lee. Yes, sir.
Mr. Schaerr. Which is, in my view, an equally, if not more
serious problem than the vast trove of information that's
collected under--pursuant to Section 702.
Certainly, both of those enormous databases together can be
an enormously powerful surveillance tool. Like any other
surveillance tool, it should be subject, in my view, to a
judicial order with a probable cause requirement. I think
that's the most important thing that can be done.
I don't think any of us here on the panel are disputing the
wisdom or the ability of the FBI to collect the underlying
data. Yes, in many instances it's broader than it needs to be.
The key event is not so much the collection of the data as the
searching of that data using identifiers that are specific to
American citizens.
In my view, that constitutes a search for Fourth Amendment
purposes. Even if you disagree with that, it's still an
important event to the privacy of an American citizen and is
therefore something that Congress can and should regulate very
closely.
Ms. Lee. All right. Thank you, Mr. Schaerr.
Professor Turley, I'd like to go back to something you
mentioned earlier as well, and that is the concept of making
the FISC Court process more adversarial, adding an adversarial
component of that, or having an amicus involved in that
process.
Would you elaborate for us on how you think that type of
reform could be implemented and how that might look?
Mr. Turley. Thank you very much for that question.
The Congress years ago implemented this amicus process by
which the court can reach out by what the Congress described as
novel questions to get the assistance of essentially a third-
party view separate from the government.
That has been relatively underutilized. As far as I know,
there's no indication it's ever been used in an individual case
where the FISC Court says, can you look at this application?
What we know is that when we actually put those
applications under a spotlight, which is relatively rare, as
the Chair mentioned, out of 29 cases reviewed, 25 of them were
in error.
So, there's obviously a need for some additional viewpoint.
I don't think that's going to be achieved with any amicus
curiae. I think that what you really need is this sort of
concept of a special advocate, a formal office that has the
ability, among other things, to bring a case to the appellate
FISA Court, to say that there's a problem here that you should
reveal or review.
I think that would be very useful, to have an actual
privacy advocate with security advocacy. It you're going to
have a secret court, let's make sure both are represented.
Ms. Lee. Thank you, Professor Turley.
Mr. Chairman, I yield back.
Mr. Biggs. Thank you.
The Chair recognizes the gentleman from South Carolina, Mr.
Fry.
Mr. Fry. Thank you, Mr. Chair.
This is incredible. Finally, we've been fighting all week
on the floor on the NDAA. In this Committee, it's always a
knife fight, it seems like. In today's hearing we have really
unanimous support for fixing this process or letting it expire.
There's a recognition across the entire country that this needs
to be fixed.
What's perplexing to me--and we just had Director Wray come
in--Professor Turley, you alluded to that earlier--who, if you
ask agencies, all is well in the Land of Oz.
This is really not the case. We know that the FBI and other
agencies have abused FISA to the nineth degree. We know that
they continually spy on Americans without a warrant. We know
that they end around and they use data collection, geotagging,
and geolocation to look at the activities of Americans.
At the end of the day I look back--and, Professor, you
cited the Federalist Papers--we're a Nation of laws. We are not
some Orwellian dystopia where these things are appropriate or
even allowed, but we've allowed to them to happen. To the point
of the entire panel, we really need to get a handle on this in
a pretty aggressive way.
Professor Turley, I want to start with you. To hear the FBI
talk about it, we should be celebrating that we went from two
million illegal search queries to 200,000. Do you think this is
cause for celebration?
Mr. Turley. No. It's like a bank robber saying, we're
hitting smaller banks. I mean, the problem still is that you're
engaged in something you're not supposed to do.
Look, the thing that we have to keep in mind is that all
governments are information junkies. That is consistent across
all types of government, whether they are democratic or
authoritarian. They're information junkies. They want more
information. It's not necessarily for nefarious purposes. It's
that they want data. They always do. So, this impulse will
exist, and it will grow unless you restrain it.
I was baffled by the Director's testimony. When he said
that he wasn't even aware of what parallel construction was, I
was really taken aback, because that's a core issue in these
FISA debates. It's been an issue for years. I just looked in
disbelief when he said, I'm not sure what that might be.
What that might be is a very serious threat to privacy
that's existed for years. It essentially replants material to
create a different origin. Its purpose is to hide the original
origin from courts.
As someone who's litigated national security cases, I have
to tell you that these cases are riddled with this type of
slight of hand. I am usually the cleared attorney in national
security cases, I've had national espionage, terrorism cases.
When you hit a FISA line, all the lights go off. The government
gives you nothing.
The other thing that I want to emphasize about this
commercially available information is it has another insidious
problem. That is what happens is the government often wraps
commercially available information into FISA applications, and
then everything gets iron plated under FISA. When people like
me finally see the applications in the SCIF, we find it's
loaded with material that should have been disclosed to defense
counsel or trial counsel.
Mr. Fry. Right, so this is nothing to celebrate. I mean,
200,000 violations of the Fourth Amendment are not really a
good cause for celebration.
Professor, I think you hit on having a special advocate and
strengthening that. I think that's a great step. What in your
mind are other reforms that would be crucial to fixing the FISA
problem that we have in this country?
Mr. Turley. Well, Congressman, the most important one is
where we should have started and ended this debate in 1978.
That is, you cannot engage in a query, search of a U.S. citizen
without a warrant, or Title I order, period. I don't think it
should matter where that occurred.
Now, it's true, the extraterritoriality of the Fourth
Amendment has not been supported by the Supreme Court. You can
support it. You can support the rights of U.S. persons abroad.
That creates a very clear line.
When I talked about letting the provision sunset, I'm
saying that when its sunsets you make clear that all searches
or inquiries, wherever they are, of a U.S. citizen by a U.S.
agency, must be accompanied by a warrant or Title I order,
period.
Mr. Fry. Right.
Mr. Turley. They can find a way to try to get around that.
That's the brightest of bright lines.
Mr. Fry. Mr. Schaerr, real briefly, to wrap up. I'm also
concerned that even if we fix this, the administration, a
future administration, will just end around this by virtue of
Executive Order.
So, how do we deal with FISA in reforming FISA when an
administration could just go around it? What would you suggest
in that sphere?
Mr. Biggs. The gentleman's time has expired.
You may answer the question.
Mr. Schaerr. I think the short answer is two words. Any
statute needs to make clear that whatever Congress specifies is
an appropriate search has to be the exclusive means of
obtaining the information that's covered.
If you're a lawyer sitting at the White House or the
Justice Department, you feel an obligation to be sure that the
President that you serve takes care that the laws be faithfully
executed. If it's clear in the law that there's one exclusive
way of getting the information at issue, you're going to feel
some obligation to be sure that your boss proceeds in that way.
If there's a statutory vacuum, that's where the problems arise.
Mr. Biggs. The gentleman's time has expired.
Now, I haven't taken my five minutes of questioning yet,
but I'm going to go ahead and do it. I am going to limit it to
three questions and--
Ms. Jackson Lee. I have the gavel.
Mr. Biggs. You took the gavel from me.
Yes, she's good. She's going to pop me with that gavel.
OK. We're going to start with you, Mr. Turley, please.
Let's start, let's get with this, capacity of State and
District Courts to keep records and information sealed. That's
one of the critiques we have about moving away from a FISA
Court, because, ``Oh, boy, there'll be leaks,'' as if there's
been no leaks in the current scheme.
So, tell me your experience there. Is it possible for State
and Federal Courts to keep information sealed?
Mr. Turley. Yes, I always hear this objection, and it has
no support at all. I deal with national security cases through
regular Article III Courts throughout the years. They have
SCIFs. They have training. They're cleared. There aren't these
allegations of leaks.
The issue with the secret court is that no one's objecting
that you can have a secret court in the sense of a giant SCIF
where secret proceedings can occur. You can even have judges
that are selected and trained for that purpose. The question is
whether the standard for U.S. citizens and U.S. persons should
be different in that courtroom. I have never accepted that to
be the case. I don't see an exception under the Fourth
Amendment.
Mr. Biggs. Right. I appreciate that. I'm in agreement with
that.
Mr. Schaerr, I'm going to go to you next.
The gentleman from Georgia kind of intimated that somehow
data collection and querying is similar to an officer in the
patrol car driving around and observing suspicious activity,
maybe making a Terry stop, or whatever you want to call it.
How is this different and why should we equate this more
like to a wiretap rather than a stop and frisk?
Mr. Schaerr. I think it is very much more like a wiretap.
Yes, if you're a police officer, you have a right to be on a
highway and watch what goes by, but that doesn't mean that you
also get to have a helicopter flying over the neighborhood and
taking picture of everything that happens in every home in that
neighborhood.
So, by all means, I think the wiretap analogy is the right
one to use because that exactly is what 702 is doing, is it's
taking a stream of data, a massive stream of data, and just
pulling things out of it. Even if it's appropriate to collect
the data, there needs to be Fourth Amendment protections when
it comes to searching that data.
Mr. Biggs. Just as you would have in a wiretap, when you
narrow the search down, you have made a particularized--you
have targeted somebody.
Mr. Schaerr. Right.
Mr. Biggs. You're going forward and getting a warrant,
right?
Mr. Schaerr. Right. Searching a database with somebody's
name or other identifying information is more analogous to a
wiretap.
Mr. Biggs. So, I want to get to this other thing too, Ms.
Goitein, and that is dealing with purchased information. I
think Professor Turley kind of got to it a little bit, is that
they wrap it up. We've been briefed by the FBI on this. They
talk about multiple databases that they're using. Then there's
a wall that's created.
Why should we prohibit the use of purchased material when
we know other nations are using it?
Ms. Goitein. Well, that's an important question. Let's be
clear that we are talking about material that the government
would need a warrant or a court order or subpoena if it were
compelling the production. So, we're talking about sensitive
information about U.S. persons.
The reason the government can buy this from data brokers is
because there are loopholes in the law. The law does prohibit
phone companies and internet companies from selling this type
of data to the government, but that law is from 1986 and so it
doesn't address digital data brokers. They didn't exist back
then.
So, there's this loophole where the government--where the
companies cannot sell it to the government. They can sell it to
data brokers. The data brokers turn around and sell the same
information to the government at a handsome profit. So, the
information is laundered through a middleman.
Now, we should be concerned about the fact that foreign
governments can get this information. Congress absolutely
should act on that problem. The Brennan Center is in favor of
comprehensive consumer data privacy legislation.
That should not stop Congress from acting now to make sure
that our government can't exploit this loophole. Because when
the U.S. Government is obtaining Americans' sensitive
information, there are risks and harms to Americans' civil
liberties that go beyond what can happen when private entities
can get that information or even foreign governments.
Because the U.S. Government has coercive powers over
American citizens that private companies and foreign
governments do not have the ability to put us in jail, the
ability to deport people, to tax you, to fine you, to put you
on a no-fly list, and to withhold public benefits.
There are all kinds of ways in which the government can
impact our liberties. For that reason, the Fourth Amendment
applies to the U.S. Government, not to private actors, not to
other governments, and Congress should make sure that the U.S.
Government is honoring those Fourth Amendment protections.
Mr. Biggs. Well, my time has expired. I thank each one of
you. You've provided us with some information, and I think it's
vital. A lot of comments.
What I would ask of you is, as we go forward, we may have
ideas, legislation that we want you to review. Please make
yourself available. We appreciate you making yourself
available.
Ms. Jackson Lee. Mr. Chair.
Mr. Biggs. I believe there's some unanimous consents?
Ms. Jackson Lee. Yes, there are. I would like to contribute
to Ms. Goitein, but I would like to unanimously submit into the
record the Brennan Center's ``Bipartisan Coalition Responds to
the FBI's New Policies Under Foreign Intelligence Surveillance
Authority.'' I ask unanimous consent. Under Epic.org, July 13,
2023, ``New FBI Procedures Under FISA under Section 702 `Out of
Touch' with Extent of Abuse and Gravity of Privacy Threat.''
I think I will yield on those two items and ask unanimous
consent that they be entered into the record.
Mr. Biggs. Without objection, entered into the record.
Ms. Jackson Lee. With the collegiality that we will work
together on the best solution of this matter.
Mr. Chair, I just want to put on the record we are facing
in the next decade artificial intelligence. I yield back.
Mr. Biggs. Thank you so much.
With that, I appreciate everyone being here. We are
adjourned.
[Whereupon, at 12:02 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=116211.
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