[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
A CONTINUED PATTERN OF GOVERNMENT
SURVEILLANCE OF U.S. CITIZENS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME AND FEDERAL
GOVERNMENT SURVEILLANCE
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, APRIL 8, 2025
__________
Serial No. 119-15
__________
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
60-061 WASHINGTON : 2025
-----------------------------------------------------------------------------------
COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JAMIE RASKIN, Maryland, Ranking
ANDY BIGGS, Arizona Member
TOM McCLINTOCK, California JERROLD NADLER, New York
THOMAS P. TIFFANY, Wisconsin ZOE LOFGREN, California
THOMAS MASSIE, Kentucky STEVE COHEN, Tennessee
CHIP ROY, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
SCOTT FITZGERALD, Wisconsin Georgia
BEN CLINE, Virginia ERIC SWALWELL, California
LANCE GOODEN, Texas TED LIEU, California
JEFFERSON VAN DREW, New Jersey PRAMILA JAYAPAL, Washington
TROY E. NEHLS, Texas J. LUIS CORREA, California
BARRY MOORE, Alabama MARY GAY SCANLON, Pennsylvania
KEVIN KILEY, California JOE NEGUSE, Colorado
HARRIET M. HAGEMAN, Wyoming LUCY McBATH, Georgia
LAUREL M. LEE, Florida DEBORAH K. ROSS, North Carolina
WESLEY HUNT, Texas BECCA BALINT, Vermont
RUSSELL FRY, South Carolina JESUS G. ``CHUY'' GARCIA, Illinois
GLENN GROTHMAN, Wisconsin SYDNEY KAMLAGER-DOVE, California
BRAD KNOTT, North Carolina JARED MOSKOWITZ, Florida
MARK HARRIS, North Carolina DANIEL S. GOLDMAN, New York
ROBERT F. ONDER, Jr., Missouri JASMINE CROCKETT, Texas
DEREK SCHMIDT, Kansas
BRANDON GILL, Texas
MICHAEL BAUMGARTNER, Washington
------
SUBCOMMITTEE ON CRIME AND FEDERAL
GOVERNMENT SURVEILLANCE
ANDY BIGGS, Arizona, Chair
TOM TIFFANY, Wisconsin LUCY McBATH, Georgia, Ranking
TROY NEHLS, Texas Member
BARRY MOORE, Alabama JARED MOSKOWITZ, Florida
KEVIN KILEY, California DAN GOLDMAN, New York
LAUREL LEE, Florida STEVE COHEN, Tennessee
BRAD KNOTT, North Carolina ERIC SWALWELL, California
CHRISTOPHER HIXON, Majority Staff Director
JULIE TAGEN, Minority Staff Director
C O N T E N T S
----------
Tuesday, April 8, 2025
OPENING STATEMENTS
Page
The Honorable Andy Biggs, Chair of the Subcommittee on Crime and
Federal Government Surveillance from the State of Arizona...... 1
The Honorable Jamie Raskin, Ranking Member of the Committee on
the Judiciary from the State of Maryland....................... 3
The Honorable Jim Jordan, Chair of the Committee on the Judiciary
from the State of Ohio......................................... 5
WITNESSES
James Czerniawski, Senior Policy Analyst, Technology &
Innovation, Americans for Prosperity
Oral Testimony................................................. 7
Prepared Testimony............................................. 9
Kia Hamadanchy, Senior Policy Counsel, National Political
Advocacy Division, American Civil Liberties Union
Oral Testimony................................................. 16
Prepared Testimony............................................. 18
Philip G. Kiko, Principal, Williams & Jensen
Oral Testimony................................................. 31
Prepared Testimony............................................. 33
Gene Schaerr, General Counsel, Project for Privacy & Surveillance
Accountability
Oral Testimony................................................. 50
Prepared Testimony............................................. 52
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted by the Subcommittee on Crime and Federal
Government Surveillance, for the record........................ 76
APPENDIX
A statement from Jake Laperruque, Deputy Director, Security and
Surveillance Project, The Center for Democracy & Technology
(CDT), Apr. 8, 2025, submitted by the Honorable Jamie Raskin,
Ranking Member of the Committee on the Judiciary from the State
of Maryland, for the record
A CONTINUED PATTERN OF GOVERNMENT SURVEILLANCE OF U.S. CITIZENS
----------
Tuesday, April 8, 2025
House of Representatives
Subcommittee on Crime and Federal Government Surveillance
Committee on the Judiciary
Washington, DC
The Subcommittee met, pursuant to notice, at 10 a.m., in
Room 2141, Rayburn House Office Building, the Hon. Andy Biggs
[Chair of the Subcommittee] presiding.
Members present: Representatives Biggs, Tiffany, Moore,
Kiley, Lee, Knott, Cline, and Goldman.
Mr. Biggs. The Subcommittee will come to order. Without
objection, the Chair is authorized to declare a recess at any
time. We welcome everyone to today's hearing on Federal
Government Surveillance.
I now recognize the gentleman from Alabama, Mr. Moore, to
lead us in the Pledge of Allegiance.
All. I pledge allegiance to the Flag of the United States
of America, and to the Republic for which it stands, one
Nation, under God, indivisible, with liberty and justice for
all.
Mr. Biggs. I now recognize myself for an opening statement.
I welcome my colleagues to this important hearing, and I
welcome our witnesses and thank them for being here today.
The Fourth Amendment guarantees all Americans the right to
be free of unreasonable government searches and seizures. With
advances in technology, Americans' personal data has become
easily tracked and collected and the Government can and does
obtain this information without acquiring a warrant and without
ever notifying an individual who is subject to a search. This
is especially prevalent in the context of the Foreign
Intelligence Surveillance Act.
Reports in recent years detail how the FBI, under the
leadership of past FBI Directors, abused its authorities under
FISA. The FBI used its authorities under Section 702 of FISA to
conduct millions of queries of U.S. person communications. At
its peak, the FBI conducted nearly three million such searches
in 2021. In recent years, those numbers have begun to decline,
but the FBI still conducts thousands of U.S. person-queries
every month. These actions violate the privacy and civil
liberties of Americans and likely infringe on the Fourth
Amendment protections.
I have called for serious reforms to FISA for years and
last Congress, we undertook the task of attempting to rein in
years of FISA abuses. Congress enacted a bill that included
various reforms such as new and heightened criminal and civil
penalties for those who violate FISA. We significantly reduced
the number of FBI personnel authorized to approve queries. We
required audits of U.S. person queries and implemented many new
reporting and transparency measures. We must still work to
protect the Fourth Amendment rights of all Americans.
I introduced an amendment to require a warrant for all U.S.
person queries. This amendment included various exceptions to
allow the FBI and the intelligence community to do its vital
work of defending our homeland, while protecting Americans'
privacy rights. This amendment has broad, bipartisan support
and we worked closely with our colleagues across the aisle in
an attempt to address this issue. I believe such a reform is
necessary to end the abuses of Americans' rights.
While reforming FISA itself is not enough. The Government
has plenty of other tools at its disposal to collect
information on Americans. Currently, the laws governing law--
excuse me, governing how the Fourth Amendment is applied in the
digital context is the Wild West. Key legislation in this space
is the Electronics Communications Privacy Act which was written
in 1986 and did not take into account all the advances in
digital communications that have occurred since. The IPO, for
example, did not show up for two decades after this law was
written. These cell phones have become such an integral part of
our lives that as the Supreme Court has held now ``hold for
many Americans the privacies of life.''
Federal agencies are able to sidestep the requirements of
the Fourth Amendment and access and collect massive amounts of
private information on Americans while exploiting a legal
loophole in this act. Rather than obtain a warrant, government
agencies like the Federal Bureau of Investigation, the
Intelligence Research Specialist, the Drug Enforcement Agency,
and the Department of Homeland Security can simply turn to data
brokers and purchase mass amounts of Americans' data. This
includes such private information as location and health
information and so on. Apparently, with a disturbing amount of
frequency, data brokers sell Americans' personal information to
law enforcement and intelligence agencies without any court
oversight in contrast to strict rules that prevent phone
companies and social media sites from selling such information
to the Government.
We also are aware of reports by the Federal Government
using facial recognition technology. This is a powerful tool
that can be used to help solve crimes, but this technology also
raises serious issues concerning First and Fourth Amendment
rights. Law enforcement agencies could potentially use this
technology to surveil individuals who are not engaged in any
illegal activity whatsoever. For example, we have seen reports
of ATF using facial recognition to find gun owners.
The Federal Government has also turned to private companies
like Clearview AI to purchase access to facial recognition
technology. Clearview AI pulls publicly available photographs
from social media sites and puts them into a database marketed
to law enforcement. Clearview AI's founders call the service a
search engine for faces. The Government Accountability Office
has conducted studies of Federal law enforcement entities' use
of this technology in recent years. It found that Federal law
enforcement agencies had not properly assessed privacy and
other risks associated with the use of this technology. Some
did not even know which systems their agents were using.
As technology continues to develop, the Government has more
and more information about Americans available to it. Used
improperly, this will continue a pattern of government
surveillance of U.S. citizens that we have fought so hard
against. Congress must protect the privacy rights of Americans
and uphold the guarantees of the Fourth Amendment.
I look forward to this opportunity to discuss the dangers
of mass surveillance and explore meaningful reforms. I
appreciate our witnesses and the Members for being here today
and the public for attending as well.
I now recognize the Ranking Member of the entire Committee,
Mr. Raskin, for his opening statement.
Mr. Raskin. Vote taken. Thank you, very much Chair Biggs
and thanks to our distinguished witnesses for joining us here
today.
The Fourth Amendment guarantees the right of the people to
be secure in their person, houses, papers, and effects against
unreasonable searches and seizures. That right is the same
today as it was when it was written centuries ago, but the
facts on the ground have obviously changed. Members of Congress
didn't have cell phones in their pockets. We didn't have Zoom.
We didn't email. The times have changed and while the concept
to the right of privacy has not changed, new technologies make
it a lot harder to rein in government intrusion in the lives of
the people.
Artificial intelligence turbo charges surveillance
capabilities by sifting through mountains of personal data in
seconds, data brokers aggregate and re-identify so-called de-
identified data blocked from apps and then sold to others,
including the Government, allowing them real-time access to
Americans' locations, purchasing habits, and healthcare needs.
Cameras equipped with facial recognition technology can scan a
crowd and instantaneously pick out specific people whether law
enforcement targets or undocumented immigrants. You name it,
all without a warrant.
In an 1829 speech at the Virginia Constitutional
Convention, Madison said to his colleagues,
The essence of Government is power; and power, lodged as it
must be in human hands, will ever be liable to abuse.
The U.S. Government has broad surveillance authorities. When
properly implemented, they keep us safe from terrorists and
foreign adversaries and gangs. Such broad grants of power are
also fertile ground for abuse. I believe Congress has a duty to
balance the Government's need for Americans' private data. With
our rights, I have voted in favor of government surveillance
authorities when they do not trespass on our constitutional
rights, and I voted against them when they don't. We obviously
need to keep ourselves safe both from criminals and fraudsters
who would do us harm, as well as those in power who would
violate our freedom.
When we last reauthorized Section 702 of FISA which allows
warrantless collection of the communications of non-U.S.
persons located overseas, including when those people are
interacting with Americans, our solution to that tension
between privacy and security was to establish more checks on
the Government. Congress previously imposed rules dictating
when the FBI can search for Americans' identifying information
in the 702 databases, but we know those rules had been honored
only in the breach. Rather than review a sampling of those U.S.
person searches, the FBI's National Security Division now must
audit every search for the communications of an American. These
watchdogs within the FBI and in other government agencies are
an essential line of defense against government overreach. The
problem today is that President Trump has fired all those
people.
A week after he was sworn in, President Trump fired every
democratic member of the Privacy and Civil Liberties Oversight
Board. This is the board created by Congress in 2004 to make
sure the Government does not violate Americans' civil liberties
in the name of keeping us safe. The work of these Democratic
Members have been lauded even by Republican Members of our
Committee, who recognized and shared their commitment to
protecting our rights against government overreach. Trump has
left the Privacy and Civil Liberties Oversight Board with only
one member, a single member who has been stripped of all
authority because the board needs a quorum, which is three, to
act. He cannot issue recom-
mendations on Section 702, U.S. person searches. He cannot hold
public meetings. Without the fired members, it is as though the
board simply doesn't even exist. The President did not stop
there. Remember those monthly audits of every single U.S.
person searched of the 702 databases. He removed the individual
responsible for managing that and rescinded offers extended to
those who had been recruited to help her. Congress cannot
receive the audit reports required by law because there is
simply nobody left to audit these warrantless searches, much
less provide the mandatory report to Congress which is why I am
also concerned all the other things that have been done to
remove the safeguards around Americas' right to privacy against
government invasion. The President fired at least 17 Inspectors
General, dismantled the Cyber Safety Review Board, and removed
the Director of the NSA, the person in charge of collecting 702
data responsibly and within statutory limitations.
Just last week, he fired their four-star general in charge
of the NSA and U.S. Cyber Command with other high ranking
security officials because according to reports, Laura Loomer
told him to do that. In a system that works, surveillance and
privacy are inextricably tied and made consistent. Those
conducting surveillance understand the threat posed to the
country and its civil liberties and that is applied to rules in
a precise and disciplined way. Franklin famously said that,
Those who would give up essential liberty to purchase a little
temporary safety, deserve neither liberty nor safety.
While Trump has defied even Ben Franklin because in 78 days, we
have lost both privacy and safety. We are less safe, and we are
less free than we were on January 19, 2025. President Trump
knows he is placed in charge of the FBI, like Kash Patel talked
about using the power of the Government to visit retribution on
anyone the President sees as an enemy.
Over the last 78 days, we have watched the administration
attack journalists, the free press, colleges, peaceful
protesters, Members of Congress, lawyers and law firms, and
even the Federal judges because they have countered his assault
on the rights and freedoms of the people. Never have I felt
more concerned about the extremely broad warrantless
surveillance powers that have been entrusted to the Executive
Branch.
Chair Jordan and I have disagreed about various things in
the past, but I must say he has shown commendable and strong
leadership and worked across the aisle to ensure that
Republicans and Democrats alike understand the dangers of
unchecked government surveillance and the times bear him out. I
am looking forward to working with him closely on a bipartisan
basis in this set of hearings and the lead up to the expiration
of FISA Section 702 next year to stand up for all Americans'
civil liberties. I thank him for his leadership. I thank you,
Mr. Chair, and I yield back.
Mr. Biggs. The gentleman yields back. The Chair recognizes
the Chair of the Full Committee, Mr. Jordan, for his opening
statement.
Mr. Jordan. Thank you, Mr. Chair. Section 702 of the
Foreign Intelligence Surveillance Act allows Government to
conduct surveillance of foreigners, as the title would suggest,
outside of the United States for intelligence information. OK,
that is all well and good. We like that. They get that
information. They bring in this giant database, what I call the
haystack of information, and then they do queries which is a
fancy word for search and they search Americans, American phone
numbers, names, email addresses, and they search Americans.
They call it queries, but a query is a fancy name for search.
Three million times they did it in 2021. Here is the
kicker. The FBI, when they did all these searches, didn't even
follow their own rules. You don't have to take our word for it.
The Inspector General said 278,000 times, the FBI didn't even
follow their rules for conducting these searches on Americans,
not foreigners. The Ranking Member is right. We have got 12
months from now when we get a chance to go to this issue again.
We were close last time. We lost the warrant requirement in a
vote 212-212. I am going to do everything, and I know the Chair
is and I appreciate the Ranking Member's comments. We are going
to do everything we can to make sure we have that warrant
requirement.
Here is the way it works in our country. You are an
American citizen, and the Government wants to go look at your
stuff. They have got to go to a separate equal branch of
Government and get a warrant. It is pretty simple. That is what
we want. Plain and simple and we were one vote away from
passing it in the House. Who knows what would have happened in
the Senate, but I know I am committed. I know the Chair of the
Subcommittee is committed and the Ranking Member, I appreciate
what he has done over the years in defending the Constitution,
the Bill of Rights, and we look forward to working with him on
this issue.
We need to do this to protect American citizens and as the
Ranking Member said, ``The way it has always worked, if you
want to look at someone's stuff, go get a warrant.'' Go to a
separate branch of Government, get a warrant. That is how
probable cause--and here is the other thing. We even put
exceptions in there, exigent circumstances, something really
bad is going to happen or you give permission because there is
some cyber-attack on you or your company. We put exceptions in
there. We will put them back in again. Sometimes I thought we
made too many exceptions. We will do it again. We have got to
win. We have got to win this issue 12 months from now, April--I
forget the date in April, but it is April of next year and we
have got to make sure we win this, and I appreciate the Chair
bringing our witnesses here. Thank you for coming and having
this hearing on this very important--a fundamental issue for
the American people. I yield back.
Mr. Biggs. The gentleman yields back. Without objection,
all other opening statements will be included in the record. We
will now introduce today's witnesses.
First, Mr. James Czerniawski. Mr. Czerniawski is a Senior
Policy Analyst at Americans for Prosperity where he focuses on
issues surrounding technology and innovation. Prior to joining
AFP, he was a technology and innovation policy analyst at the
Libertas Institute.
Mr. Philip Kiko is a Principal at Williams & Jenson, PLLC.
He is a former Chief Administrative Officer in the House of
Representatives. He has signed everybody here's checks at some
point or other and has served on a number of positions with
Members of Congress and the Committees including the Judiciary
Committee. He also served in the Executive Branch at the
Interior Department and the Department of Education.
Mr. Gene Scaerr is a partner at Scaerr Jaffey 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 rights and civil liberties in government
surveillance programs.
Mr. Kia Hamadanchy, did I hit it?
Mr. Hamadanchy. Hamadanchy.
Mr. Biggs. Hamadanchy. OK. Very good. Mr. Hamadanchy is a
Senior Policy Counsel to the ACLU where he focuses on civil
liberties, among other issues. He previously served as a House
and Senate staffer.
We welcome each of our witnesses and thank you for
appearing today. We will begin by swearing you in. Would you
please rise, and raise your right hand?
Do you each of 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 that the witnesses have answered in
the affirmative. Thank you, you may be seated.
Your written testimony will be entered into the record in
its entirety. Accordingly, we ask that you summarize your
testimony in five minutes. We are going to go first to you, Mr.
Czerniaski, and you may begin for your five minutes.
STATEMENT OF JAMES CZERNIAWSKI
Mr. Czerniawski. Thank you, Mr. Chair, Ranking Member
Raskin, and the Full Chair of the Committee, Mr. Jordan, for
holding this important hearing here today. This is an
incredibly important topic, Government surveillance of U.S.
citizens. This matter isn't just a question of policy or
politics. It is a matter of principle. Our Founding Fathers
enshrined individual liberty and privacy as bedrock ideals of
our Constitution, yet over the years, we have seen a
surveillance State that only continues to expand operating with
limited accountability under the guise of national security.
I do not believe that many would deny the importance of
national security. Many, including myself, recognize that the
world is a dangerous place and that there are people in this
world that would seek to do harm to our great Nation and its
people. I would know this firsthand growing up in Queens, New
York, and experiencing the terrible events and aftermath of 9/
11, a solemn day in American history that I will never forget.
It was also a day that served as a catalyst for pushing our
Nation down this path of increased surveillance.
However, while national security is important, it cannot
and must not come at the expense of the very freedoms that
define us. Looking back at history sends a stark warning of all
the dangers in allowing an unchecked government too much power.
Oftentimes, unfortunately, we know all too well that granting
such powers to the Government can result in outcomes where that
very power gets leveraged against the very people it was meant
to protect.
Time and time again, we have caught the intelligence
community with their hand in the constitutional cookie jar, if
you will, as they use their spy powers to surveil Americans and
when questioned on their wrongdoing and what they are going to
do to fix it, the agency, rather than taking the moment
seriously and implementing significant changes, puts out
platitudes and promises that it will never happen again, until
it does.
One might take from this exercise that the agencies are
seemingly more concerned with the notion of managing bad
headlines than they are with the sanctity of Americans' privacy
and constitutional protections against overreach and tyranny.
This repeated cycle of violations of Americans' rights, coupled
with the lack of serious accountability, has led to a
significant decline in public trust in the very institutions
charged with keep them safe.
In December 2024, CNN's Harry Enten was on air covering
recent Gallup polling that found that support for the FBI, in
particular, was at an all-time low with just 41 percent of
respondents thinking that the FBI is doing either an excellent
or great job, representing an 18 percent drop in favorability
in just 10 years. That is a damning indictment against one of
the key agencies responsible for keeping Americans safe.
When it comes to the question of what can be done to
address this issue, particularly when it comes to FISA, there
are a litany of great ideas floating out there, but here are
three key ones I would like to highlight for you here today:
(1) Closing the back door search loophole; (2) closing the data
broker loophole; and (3) strengthening third-party oversight at
the FISA Court.
The key reforms I just highlighted here today will not end
any surveillance that is going on right now or prevent those
authorities from being utilized to ensure our national
security. What they will do is ensure that the rights of
Americans are not trampled on in the process of carrying out
those duties. This is not a moment for complacency. This is a
moment for action. We must reaffirm our commitment to the
values that make our Nation exceptional. We must demand
policies that protect our privacy, uphold our liberty, and
preserve the Constitution as the cornerstone of our democracy.
As Members of the Committee with primary jurisdiction, you are
in the position to shape policies that properly balance
security with liberty and to safeguard the very founding
principles that make our Nation worth protecting.
Thank you for the opportunity to share our thoughts with
you today. I look forward to the conversation and answering any
questions you may have.
[The prepared statement of Mr. Czerniawski follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you for your testimony.
Mr. Hamadanchy, I recognize you now for your five minutes.
STATEMENT OF KIA HAMADANCHY
Mr. Hamadanchy. Chair Biggs, and the Members of the
Subcommittee, thank you for the opportunity to testify today on
behalf of American Civil Liberties Union regarding the myriads
of government surveillance programs that impact Americans of
all backgrounds.
At the start of my testimony, I want to express the
optimism and hope of the ACLU as the Subcommittee and this
Congress can use the next 12 months to put into Federal statute
not only long-overdue protections against the misuse of foreign
surveillance authorities, but also protections for everyone
across our country against the largely unaccountable
surveillance State.
A little over a year from now, Section 702 of the Foreign
Intelligence Surveillance Act is scheduled to expire. While
Section 702 requires that surveillance must be targeted at
foreigners overseas, large quantities of communications that
Americans exchange with people abroad are also swept up and
stored for future investigations. The FBI, NSA, and CIA then
conduct searches of their Section 702 databases for the
communications of Americans without having to demonstrate a
probable cause as the Fourth Amendment would otherwise require.
Last year, Congress, reauthorized Section 702 for two years
with the Reforming Intelligence and Securing America Act. While
we await further reporting from the Intelligence Committee on
the impact of its changes, there is one recent development
since reauthorization I would like to note. In December, the
District Court for the Eastern District of New York ruled in a
criminal case that the warrantless searches that the FBI
conducted under Section 702 violated the Fourth Amendment. This
ruling is the first of its kind and one of the rare cases where
criminal defendants have received notice of Section 702
surveillance. While Section 702 is of particular importance to
this Subcommittee because it is an issue that Congress has no
choice but what to address over the course of the next year, it
is not the only form of government surveillance that raises
concerns and I would like to briefly touch on a few related
topics.
First, as this Subcommittee is familiar, in recent years we
have seen the ever-growing practice of law enforcement and
intelligence agencies circumventing constitutional protections
by purchasing access to data that they would otherwise need a
warrant to obtain. According to former Deputy Director of the
CIA, Michael Morrel,
The information that is available commercially would kind of
knock your socks off. If we collected it using traditional
intelligence methods, you would keep it Top Secret Sensitive
and you wouldn't put it in a database. You would keep it in a
safe.
The only way to ensure that protections against Federal
agencies circumventing the Fourth Amendment by purchasing such
data is through legislation like the Fourth Amendment Is Not
For Sale, which passed the House Judiciary Committee last
Congress without a single no vote.
The second additional form of surveillance I would like to
highlight is reverse warrants such as reverse location or
geofence warrants and reverse key word warrants which allow law
enforcement to secure information that implicates law numbers
of people who are not suspected of any wrong doing. These
broad, suspicionless dragnet searches are deeply problematic
and are tantamount to the Revolutionary War Era general
warrants that led our Nation's Founders to prohibit their use
through the adoption of the Fourth Amendment. As the Fifth
Circuit Court of Appeals recently held, the reverse location
warrants are modern day general warrants and are
unconstitutional under the Fourth Amendment.
The next issue I would like to highlight is cross-agency
data linkages. On March 20th, President Trump issued Executive
Order 14243 directing Federal agencies to facilitate the
sharing and consolidation of agency records with the stated
goal of combating waste and fraud. However, the broad and
unregulated access to sensitive data not only breaches privacy,
but risks the creation of a database that creates a single
searchable profile of every American without transparency or
clear, legal limits. Without robust privacy protections, this
could risk the eventual creation of a vast and unaccountable
surveillance State capable of tracking every citizen's
activities, movements, and associations.
Finally, all these surveillance programs run the risk of
being super charged by the rapid growth and use of artificial
intelligence. This Subcommittee should undertake a
comprehensive review of AI technologies used for surveillance
under its jurisdiction and assess their impact on privacy and
civil liberties. This Committee and this Congress have an
unparalleled opportunity over the next 12 months to protect all
Americans by fundamentally reforming Section 702 starting with
imposing a warrant requirement.
We look forward to working with you and getting these long,
overdue reforms to the President's desk by next April. At the
same time, we strongly urge this Committee to also address the
massive and growing privacy problems for Americans raised by
the broader surveillance ecosystem.
[The prepared statement of Mr. Hamadanchy follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you.
The Chair now recognizes Mr. Kiko for his five minutes.
STATEMENT OF PHILIP G. KIKO
Mr. Kiko. Thank you, Chai Biggs and the distinguished
Members of Congress, including Chair Jordan and Ranking Member
Raskin.
As you know, the Judiciary Committee has a long,
distinguished, and complicated history with terrorism laws. I
discussed the history and other legislative efforts in the
testimony I delivered two years ago as an addendum to my
written statement. The overreach of government agencies and
FISA and using FISA authorities is well documented and
Inspector General reports, FISA Court opinions, and Congress'
oversight work.
As a backdrop, one must contend with internet-enabled
platforms that connect almost everyone to an extraordinary
complex digital world which captures users' personnel data,
records likes and dislikes, preferences, and creates a
personality profile for every digital user some firms compile
and sell this data to third parties. Users consent to such
dissemination of their data by signing lengthy Byzantine terms
of service agreements and there are passive ways that data is
collected as well for facial recognition cameras to license
plate readers that enable law enforcement to identify and
investigate crime in the real world. The rise of AI makes all
this more complicated. In a very real way, we live in a modern,
albeit consensual surveillance State. What is needed is the
continued bipartisan oversight by this body to rein in and
protect the guarantees of the Fourth Amendment.
How do we do this? Well, one way is continued targeted
legislative reforms that were accomplished in the previous
Congress in H.R. 7888. Additionally, in an age where massive
amounts of user data has been commercialized by data brokers,
you should ask yourself, if the Government can obtain
information from a company or a third-party data broker which
ordinary would require a determination of probable cause from a
detached magistrate or judge as the Fourth Amendment requires,
and they obtain information by paying for it without that time
honored legal process, that undermines a crucial safeguard of
civil liberty. I would expect we can deal with that in the next
reiteration of 702.
The legislative reforms are only half the battle. What is
absolutely required here is continued vigorous targeted
oversight by the Legislative Branch, not passing laws or
oversight. Just as law enforcement is increasingly able to
identify and interdict crime in real time, Congress' FISA
oversight must also be in real time. What does that mean?
Congress must insist on timely disclosure of information.
Through no fault of their own, committees have received
information in response to reporting requirements that are
months and sometimes years old. This information is useless.
This after-the-fact approach can be problematic. The
provisions of H.R. 7888 are a valuable step in solving this
problem, but this would only work if Congress received timely
access to the information. All this must happen promptly.
Information must be shared promptly, and Congress must allow
real-time access. I would also direct Members' attention to
Section 18(b) of H.R. 7888, which requires the Director of
National Intelligence to commission a study on technological
enhancements for the FBI to monitor compliance of the Bureau's
702 information systems in their real time.
Should Congress use AI to modernize FBI's compliance with
FISA? Consider something like this in the next iteration of
FISA. Why couldn't Congress be entitled to access of that
information on an on-going or even rolling basis? AI would make
that allowable. Of course, Congress must continue to include
Sunset Provisions in the FISA reauthorization. The Sunset
Provisions give Congress the leverage it needs to ensure
compliance.
In short, the short leash must be on the Intelligence
Committee, not Congress. I would also make a pitch because I
believe that there are over a million people in the Executive
Branch that have access to SCI clearances, and I just wonder
how many people on the Judiciary Committee or how many people
in Congress have access to those to do oversight and I would
just make a pitch to increase those clearances.
In any event, I am not someone who is hostile to strong,
national security laws or Federal enforcement. Congress should
not repeal 702. However, it is Congress' constitutional duty as
Congress' constitutional entity closer to the people, it must
continue its vital and constitutional oversight. Thank you
again for the opportunity to testify.
[The prepared statement of Mr. Kiko follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you.
The Chair is not recognizes, Mr. Schaerr for your five
minutes.
STATEMENT OF GENE SCHAERR
Mr. Schaerr. Thank you, Chair Biggs. Thank you, Chair
Biggs, Ranking Member Raskin, my own Congressman, and Chair
Jordan, and the other Members of the Subcommittee.
I commend my fellow panelists for their insights and their
hard work on the issues that we're discussing today.
I served as Chair and General Counsel to the nonpartisan,
proprivacy organization called the Project for Privacy and
Surveillance Accountability, which is blessed to have your
former Chair, Bob Goodlatte, as our Senior Advisor.
Over the last 25 years, the administrations of both
parties, our Nation has seen an expansion of privacy-destroying
technologies and practices--key elements of a panopticon-style
surveillance State coming together before our eyes.
One such element, of course, is FISA Section 702, mentioned
repeatedly previously, in which the NSA's global trawl
routinely catches the communication of innocent Americans. That
program, of course, was the subject of the Reforming
Intelligence and Securing America Act, RISAA, which passed the
Congress last year and some have falsely claimed closed Section
702's loopholes. As useful as RISAA was, it left important work
undone.
To see why, recall that RISAA primarily codified 702-
related rules and procedures that the FBI itself adopted by
early 2022, but the FBI failed, even by its own standards, when
it conducted 204,000 warrantless searches for Americans'
communications later in 2022. A DOJ audit recorded a
noncompliance rate--that is, a noncompliance with the
procedures rate--of at least 3,400 civil rights violations a
year, almost 10 per day. Those included warrantless
surveillance of a U.S. Senator, a State Senator, and a State
judge.
Since RISAA's passage in April 2024, the Director of
National Intelligence has revealed additional improper
searches, including the communications of a congressional
candidate, a congressional Chief of Staff, numerous Federal
employees, and even the spouse of an applicant for a security
clearance.
Beyond 702, routine searches of sensitive data purchased
from data brokers are at least as serious a threat to privacy,
but is currently shrouded in even greater secrecy than 702
searches. As abuses continue, the legal foundation for the
FBI's warrantless searches under both of those programs is
collapsing.
As Mr. Hamadanchy noted earlier, in December, building on a
landmark Second Circuit ruling that held that a search of the
Section 702 database constitutes a search for Fourth Amendment
purposes, a Federal District Court ruled that the government
had violated the Fourth Amendment when it failed to obtain a
warrant before conducting such a backdoor search of the 702
databases.
Absent an explicit warrant requirement written into statute
for searching both 702 data and purchased data, we can expect
that such abuses will continue. Unfortunately, in the last
Congress, this Committee demonstrated that it's possible to
erect useful guardrails to protect Americans' civil rights
against such abuses.
There's wide bipartisan support for reform, and although
the two warrant requirements that we discussed earlier for 702
data and for purchased data ultimately did not become law,
advancing them as far as you did was a tremendous legislative
accomplishment.
With a YouGov poll showing that at least 70 percent of
Americans support these kinds of warrant requirements, you can
now move forward with confidence. Yes, you can expect whispered
opposition from some elements of the intelligence community or
the IC, but your proposals last year, as Chair Jordan
mentioned, already answered their main objections.
An additional objection that we've heard frequently is that
the IC will sometimes claim that a warrant requirement would
require an additional army of FBI attorneys and FISA judges,
but again, your proposals have a ready answer to that.
Using the FBI's own numbers, spelled out in the exhibit
that's attached to my written testimony, the Bureau would, at
most, have to handle an average of three additional queries per
day requiring a warrant. That's not an overwhelming burden, as
former prosecutors like Mr. Knott can confirm. It's a small
price to pay for increasing public confidence in the entire
FISA system, not to mention complying with the Fourth
Amendment.
In short, this Committee has already proven that you can
protect both the constitutional rights of your constituents and
keep them safe. We urge the Committee to uphold the
Constitution by, once again, boldly advancing, and then,
persuading your colleagues to adopt these two important warrant
requirements.
I thank you again for the opportunity to testify and look
forward to your questions.
[The prepared statement of Mr. Schaerr follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Biggs. Thank you so much.
We will now proceed under the five-minute rule with
questions.
I now recognize the gentleman from Wisconsin, Mr. Tiffany.
Mr. Tiffany. Thank you, Mr. Chair.
Mr. Czerniawski, in your testimony--I'm going to read from
it,
RISAA did little in the form of reforms while simultaneously
dangerously expanding the scope of surveillance by changing the
definition of what was considered an electronic communications
service provider.
Could you expand on that a little bit? What are you talking
about there, that RISAA actually did not solve the problem and
may have made it worse?
Mr. Czerniawski. Thank you for the question,
Representative.
When we were looking at RISAA last year, as part of the
reforms, they included a provision that would expand the
definition of an electronic communications service provider.
Now, this used to be a more narrowly tailored thing to capture
data from these particular companies. The way that they
extended the definition would capture a wider array of
companies, so virtually including everybody, right?
So, what you ended up seeing was, from the Department of
Justice, they made a promise that they were going to keep their
searches for this kind of data a lot more limited, but again,
it is still problematic enough that even the Chair of the
Senate Intel Committee, Senator Warner, committed to trying to
get a fix to that.
Unfortunately, that still has not gotten done to date, but
this is a real serious threat. It's now virtually any, anybody
that has data on Americans could be subjected to being
considered an electronic communications service provider.
Mr. Tiffany. So, we think the new leadership at the FBI is
going to be better in terms of respecting people's
constitutional rights. Should Congress just move on from this
issue or should it act?
Mr. Czerniawski. Thank you for the question,
Representative.
I think that, in light of the fact that administrations can
change, I would not want to leave it up for interpretation for
a potential abuse underneath a future administration. So, I do
think that Congress should act to go and fix this overly broad
definition of an electronic communications service provider.
Mr. Tiffany. Mr. Schaerr, could you comment on the
amendment that Mr. Biggs had in his bill that allowed for
limited exceptions? Yet, we were being browbeaten saying that,
``No, you cannot do this. You cannot pass the Biggs bill
because there will be no way out to be able to get a perhaps
bad actor.''
Would you care to comment on that?
Mr. Schaerr. Sure. Well, and a number of reasons were
offered for that. My analysis is that it was all just
fearmongering. Every single objection that I heard was just
based on a misunderstanding of Mr. Biggs' amendment.
For example, as Chair Jordan mentioned earlier, the
amendment had an exigent circumstances exception. If there were
a ticking time bomb, the agency could act without getting a
warrant.
Of course, the amendment allowed for people to consent to
searches. So, if the FBI thought that somebody was being the
subject of a cyberattack, for example, they could go to that
person and say, ``We think you may be the subject of a
cyberattack. Could we search your communications, so that we
can find out who it is and try to forestall it?'' That person
could then consent. That's also a well-recognized exception
under the Fourth Amendment.
So, the Committee very carefully, and Chair Biggs very
carefully, built in the protections that the FBI might
legitimately need to be able to conduct searches without a
warrant.
Mr. Tiffany. So, the long and short of it, the Biggs
amendment dealt with what you term ``the exigent
circumstances''?
Mr. Schaerr. Yes.
Mr. Tiffany. Is that correct?
Mr. Schaerr. It had an express exception for that, and it
also, it also exempted metadata searches. So, the FBI could
actually look to see who was communicating with whom under
Chair Biggs' amendment. It just couldn't actually search the
communications themselves.
Mr. Tiffany. I want to ask you another question and I'm not
sure if you are going--you let me know if you can answer it or
not.
In 2021, the FBI lawyer Kevin Clinesmith was sentenced to
12 months' probation versus a typical five years. Why was that?
Mr. Schaerr. Yes. Well, it was an unfortunate slap on the
wrist. I'm separately representing Carter Page in his
litigation against the Department. I thought it was an outrage
that Clinesmith got such a low sentence for such an egregious
act of dishonesty before the FISA Court.
Mr. Tiffany. Who was the judge in that FISA Court case?
Mr. Schaerr. I believe it was Judge Boasberg.
Mr. Tiffany. Yes. So, Mr. Chair, this is the same Judge
Boasberg that we see regularly in the news these days. The
ultimate insider judge here in Washington, DC, gives a slap on
the wrist to Kevin Clinesmith, who misrepresented the
information out there, to the detriment of, it sounds like,
your client, now is doing everything he can to keep foreign
alien criminals in the United States rather than sending them
back home.
I yield.
Mr. Biggs. The gentleman yields.
The Chair recognizes the Ranking of the entire Committee,
Mr. Raskin.
Mr. Raskin. Thank you, Mr. Chair.
A lot of people were willing to give 702 a chance because
of the various exceptions and amendments that were added to try
to protect and insulate constitutional values, and specifically
there, the Fourth Amendment requirement of a search warrant.
What has happened in the meantime has taught me, anyway,
that we should never condition respect for constitutional
values on an expectation of the goodwill of political actors in
the Executive Branch of government.
Mr. Hamadanchy, a week after he took office, President
Trump fired all the Democrats on the Privacy and Civil
Liberties Oversight Board, which we had created, leaving it
without the quorum necessary to do business.
Can you tell us what the Privacy and Civil Liberties
Oversight Board does or what it is supposed to do, and why it
is a basic defeat of the legislative design that it is no
longer functioning?
Mr. Hamadanchy. Yes. So, the Privacy and Civil Liberties
Oversight Board is designed to report on the privacy and civil
liberty implications of the surveillance and counterterrorism
programs of the Federal Government.
These Members that have been fired, they actually had
demonstrated independence from the Biden Administration in
putting out a report that the Biden Administration, on 702,
very much disagreed with.
It's not a good thing for the President to be able to fire
these independent Board members who are meant to provide
independent oversight, because it chills their ability to
provide that oversight if you think the President can fire you
if you say something he doesn't like. That is why Congress
actually removed from the statute language that said the
President could fire these Board members.
Mr. Raskin. Then, that is not a partisan thing, as you just
pointed out. The Framers of the Constitution expected anybody
who got in as President to push the boundaries of his or her
own power, to the detriment of the other branches, but,
essentially, to the detriment of the citizens, right?
So, that is something we saw in the Biden Administration,
as you point out, and something that we are seeing right now
with huge red flags in the Trump Administration. So, we have
got to write laws that insulate constitutional values against
anybody who gets into the Executive Branch.
Does this Board issue reports and recommendations?
Mr. Hamadanchy. Yes. When they have a quorum, they
regularly issue reports. Last year, they did a report on 702.
They recently, before the firings, did a report on watchlisting
programs, and they regularly would issue reports when they are
able, when they have a quorum. When they haven't had a quorum,
it's the PCLOB has been much less effective.
Mr. Raskin. All right. So, there's no quorum. There are no
reports. There are no recommendations. Congress is not getting
the information we need to determine whether or not in this
difficult terrain constitutional values are being protected
against government overreach.
So, I take it you agree with me that it was bad for civil
liberties and constitutional rights that the President fired
the Democrats on the Board?
Mr. Hamadanchy. Yes, I do.
Mr. Raskin. Mr. Schaerr, do you agree with that?
Mr. Schaerr. We would like to see PCLOB reconstituted as
quickly as possible.
Mr. Raskin. OK. Mr. Kiko, the same question to you.
Mr. Kiko. Yes, the same, we would like to have it
reconstituted with the same kind of people that were there.
Mr. Raskin. Mr. Czerniawski?
Mr. Czerniawski. The same.
Mr. Raskin. Yes.
Mr. Czerniawski. Similar to them, yes, we would like to see
PCLOB reinstituted with the full membership.
Mr. Raskin. OK. Mr. Schaerr, I want to ask about the
reforms that Congress did make to Section 702 last year when we
reauthorized FISA. The bill mandated the FBI's National
Security Division report to Congress the number of U.S.
persons' so-called ``backdoor searches'' conducted each month.
That is, as Chair Jordan explained it, the data is mocked-
up from all the surveillance of foreign persons, but, then,
since the theory is we are in lawful possession of the data,
backdoor searches can exist for Americans.
Why is it important for us to know the number of backdoor
searches that the FBI is conducting on a monthly basis?
Mr. Schaerr. Well, for one thing, so that you can know the
extent of the issue. You can, with the number, you can
understand better the risk to Americans' privacy of the whole
702 system.
It also enables you to evaluate claims that are made by the
IC about the effect of additional reforms. I don't know how you
can, how you can act and respond, respond to their arguments
without knowing exactly how many people--
Mr. Raskin. What was the FBI sending us before the new
reporting requirements were put in?
Mr. Schaerr. My understanding is that it was pretty spotty.
Mr. Raskin. Yes. The additional reporting is going to
require more staff and more support. I had previously learned
from the National Security Division that they wanted 14 more
people to comply with Congress' requirements. Not only have
they frozen hiring, but they have also removed the person who
was responsible for managing of the compliance and audits. So,
what does that mean--
Mr. Biggs. The gentleman's time has expired.
Mr. Raskin. Yes, but if I could just finish this sentence?
What does that mean for the new statutory language that we put
in?
Mr. Schaerr. Well, we would certainly support staffing that
very important function at NSD.
Mr. Biggs. The gentleman's time has expired.
Mr. Biggs. Without objection, Mr. Cline will be permitted
to participate in today's hearing for the purpose of
questioning the witnesses, if a Member yields time for that
purpose.
The Chair now recognizes the Chair of the Full Committee,
Mr. Jordan.
Chair Jordan. Thank you, Mr. Chair.
Mr. Hamadanchy, what is the main argument the other side
uses on the warrant requirement? We think there should be a
warrant. They have an argument. Can you tell the Committee what
that argument is?
Mr. Hamadanchy. They will, typically, say, ``We have
lawfully collected this information already. So, we should be
able to search through it.''
The Second Circuit has recognized that the search of a U.S.
person's data is a separate Fourth Amendment event that
requires a separate Fourth Amendment analysis.
Chair Jordan. Yes, that is their argument, ``Oh, we
followed the law. We were searching foreigners overseas for
intel.'' Right? That is what the law says they can do. They
said, ``We followed the law. So, now, we can search the data
for Americans.'' That is the problem.
The court in New York just last year said, ``No, no, no,
you can't do that.'' The court said this--here's a fundamental
question. Tell me if you agree. Should the government be
allowed to do warrantless searches of the same information
Section 702 says it is not allowed to collect?
Mr. Hamadanchy. The court was very clear that they should
not be able to do that.
Chair Jordan. Right, and the law says it. You are supposed
to collect information on foreigners overseas, foreign
intelligence. Now, there are people who say, ``No, you don't
need a warrant because we're going to do searches for Americans
using their identifiers, their email, their phone number, their
name.'' Well, that is not supposed to be in there. The court
said you can't have it both ways.
That is what the other side wants. They want to have it
both ways. They can call it ``incidental.'' They can say,
``We're doing a query, not really a search.'' That doesn't fly.
Again, don't take our word for it. The court in New York
said so December of last year, is that right?
Mr. Hamadanchy. Yes, and the court said, like citing the
Second Circuit, that simply storage is not enough. It said it
in, I believe, Riley v. California, which gave the example of a
case where they lawful possession of a cell phone. They still
needed a warrant to be able to search the contents of that cell
phone.
Chair Jordan. Yes. This is, the Chair knows we spent a year
debating this within our conference and with our friends on the
other side last Congress. Then, we are about ready to go back
into the same darn fight for the next year.
This court decision, we didn't have that last year. I like
the way they say it. They said:
It would be paradoxical to permit warrantless searches of the
same information that Section 702 is specifically designed to
avoid collecting.
You are not supposed to collect information on Americans,
but, ``Oh, we did this search of foreigners and we got some. So
now, we can search Americans.'' No, that makes no sense, but
that has been the argument year after year, Congress after
Congress. Hopefully, we can get to commonsense and what the
court said this Congress and say, ``Time out. You can't do it
anymore.''
We will still put the exceptions in, for goodness' sake.
So, to answer their other argument, ``Oh, there could be an
emergency situation, imminent threat.'' OK, fine. We don't want
bad things to happen to America. Fine, you can do that.
If we can't get this passed, it is--I don't know; I was so
frustrated because winning beats losing every time and a tie is
a loss. That is what we had last time. We have got to make sure
we win this time, Mr. Raskin.
[Laughter.]
We need to make sure we win this time.
I will yield my time either to the Chair or to Mr. Cline. I
have a minute and 40 seconds left.
Mr. Cline?
Mr. Biggs. Mr. Cline?
Mr. Cline. Thank you.
Mr. Kiko, if the government can't articulate how many
Americans care being surveilled under Section 702, how can it
claim the program is narrowly tailored to national security
threats?
Mr. Kiko. If they can't articulate it, then they--I won't
say what they're doing. It's certainly not telling the truth.
Mr. Cline. Is it really a national security risk to require
a warrant to search the communications of Americans, especially
if there is probable cause?
Mr. Kiko. No, it's not a national security risk.
Everybody--it's we collect all this incidental information, and
you should have a, you should have a warrant to search it.
That's not why it was collected. It was incidental.
As other witnesses said, ``there's other ways to check on
this information without like metadata and stuff like that.''
So, that's my opinion.
Mr. Cline. Mr. Czerniawski, you have spoken about
government overreach and tech policy. So, how do we justify
allowing the government to query vast databases of Americans'
private communications without a warrant, especially when those
queries are increasingly used in routine criminal
investigations?
Mr. Czerniawski. Yes, thank you for the question,
Representative.
I don't think you can justify it. At the end of the day,
when people discover that the government has violated their
trust by violating their Fourth Amendment rights to search for
these vast databases for their communications, that undermines
their faith and trust in a key institution that they believe is
supposed to be protecting them. It's quite chilling for them to
realize that that weapon is being turned inward and being
leveraged against them to spy on them, when they have not
necessarily done anything wrong.
Mr. Cline. I'm going to ask the ACLU witness, whose name I
can't read on that.
Can you give us an update on the status of the decision?
Was it appealed from the Second Circuit?
Mr. Hamadanchy. So, the decision was a District Court
decision. The defendant lost on separate grounds. So, it would
actually be the defendant who has to appeal it, not the
government. The government can't actually appeal that. I'm not
sure what the defendant plans on doing.
Mr. Biggs. The gentleman's time has expired.
Mr. Cline. Thank you.
Mr. Biggs. The Chair recognizes the gentleman from New
York, Mr. Goldman.
Mr. Goldman. Thank you, Mr. Chair.
I do look forward to having this debate. As someone who
spent 10 years writing, drafting, and getting warrants through
courts, and recognizing, also, the exigent circumstances that
often exist with the 702 information, it is not as simple as my
friend, the Chair at the end, would have you believe. I
probably disagree with some of the witnesses here today as
well.
The problem I have with this hearing is, this is an
important argument, but it pales in comparison to what is going
on right now with Americans' privacy, with Americans' national
security. We are talking about whether there should be a
warrant to search a certain amount of information lawfully
collected from foreigners. It's not a broad set of information.
Yet, some nongovernment employee, Elon Musk, is getting
access to every single American's personal identification
information. His employees, some of whom have already been
found to have stolen information from one company to bring to
another competitor, are getting access to Americans' personal
identification information, whether it be through the Social
Security Administration, it be through the Department of
Treasury.
So, it feels like this hearing, while important, is
somewhat misguided at this time, when the privacy
considerations of every American are at risk, rather than a
very narrowly tailored set of Americans who are communicating
with foreigners who are suspected, or potentially suspected, of
being involved in adversarial actions against the United
States.
The other thing that I want to bring up with our friends
here is the threat to national security. We are talking a lot
about that in this hearing. Obviously, 702 is designed to
protect our national security.
As many of you know, I'm sure, last week I believe it was,
the NSA Director General Timothy Haugh, widely, widely
respected, a career national security official overseeing the
NSA, which is principally responsible for using Section 702
materials and gathering Section 702 materials, he was fired. Do
you know why he was fired, Mr. Hamadanchy?
Mr. Hamadanchy. The reporting is that there were certain
people commenting to the President, specifically, Laura Loomer,
that he should be fired.
Mr. Goldman. Laura Loomer. Yes, Laura Loomer went in and
had a meeting with the President and urged that General Haugh
should be fired because he was handpicked by General Mark
Milley, who was the Chair of the Joint Chiefs of Staff in 2023,
when Haugh was nominated to lead both the Cyber Command and the
NSA.
Now, this is the same Laura Loomer who says 9/11 was an
inside job; who has openly advocated at a White nationalist
conference that she is a White advocate; who said during the
campaign that, if Kamala Harris, who is half-Indian, won, that,
quote, ``The White House would smell like curry and White House
speeches will be facilitated via a call center''; who has said
that numerous mass shootings are all hoaxes and conspiracies;
who calls herself a proud Islamophobe, and perpetuated the
completely bogus conspiracy theory about Haitian immigrants in
Ohio. Yet, she is given access to the President of the United
States to make a national security recommendation that,
coincidentally or not, the next day happened.
How does this affect our national security, Mr. Hamadanchy,
when a conspiracy theorist who is denounced by numerous
Republicans is effectively making decisions about who oversees
our most sensitive collection agency?
Mr. Hamadanchy. So, I think the first question is whether
or not the NSA Director was refusing to follow any illegal
orders. The reporting does not indicate that.
The second question is, have there been any policy changes
at the NSA since President Trump took office? That's something
that this Committee should look at.
The third question is, who is the President going to
replace the NSA Director with? If that person is unqualified,
if that person has the potential for abuse, to abuse the
authority of NSA? That's something that Congress should weigh-
in on, if that's the case.
Mr. Goldman. I agree--
Mr. Biggs. The gentleman's time has expired.
Mr. Goldman. Mr. Chair, I will. I will, if I could just
have one second?
Mr. Biggs. No, you can't.
Mr. Goldman. I agree that--
Mr. Biggs. Your time has expired.
Mr. Goldman. --I hope we do look into all that because
that's far more important than Section 702 right at this
minute.
Mr. Biggs. Thank you, Mr. Goldman.
The Chair now recognizes the gentleman from Alabama, Mr.
Moore.
Mr. Moore. Thank you, Mr. Chair.
Mr. Chair, a quick question.
The Crossfire Hurricane investigation and subsequent
surveillance of Carter Page, a real dysfunction and political
bias, obviously, on the part of the FBI leadership, but also
real problems with FISC, is that correct?
Mr. Schaerr. It did. It illustrated that FISC does not
always examine the warrant applications under Title I with
sufficient care, and that's one of the reasons that our
organization, working with Senator Lee and many others, has
been pushing for reforms at the FISC that would allow amici,
friends of the Court, to participate in important FISC
proceedings to ensure that privacy is protected.
Mr. Moore. One of the reforms--are there other reforms, as
you recommend, to help as we work through this process of
reauthorizing 702 that we could put into the law that would
help eliminate some of these abuses? Lord, there have been a
number of them.
Mr. Schaerr. Well, the amicus requirements were
strengthened somewhat in RISA. I think they can be strengthened
still further. RISA did contain a very useful provision in that
it allowed the Chair and the Ranking Member of this Committee,
for example, to sit in on FISC proceedings so that there's more
of a window of transparency there.
Certainly, FISC needs additional staff. They need to have
additional people who are cleared, so that they can process
their business more expeditiously, but--
Mr. Moore. Also, RISA--and I think we put in the--require
the same judge to renew the application process.
Mr. Schaerr. Yes.
Mr. Moore. There were some other things, too. One of the
things that--the reason I was a no-vote is I thought there
should be a warrant requirement. Would you agree with that?
Mr. Schaerr. Absolutely.
Mr. Moore. That was stripped out at the end. That was a
tough vote for many of us. We wanted to do what we could to
renew this thing, but when you got--when I came to D.C., they
wanted to issue me another government phone. I said, ``I think
you just need to put everything on one phone.'' They were like,
``Well, sir, if we do that, we're going to know everything that
is on your phone.'' I thought to myself, ``Like you don't
already.'' Right?
So, as we are going through these hearings, we understand
they are spying on U.S. citizens without warrants. That was one
of the things that I thought we absolutely needed to do. What
are improvements that Congress can consider to--for FISC on how
it operates, some other improvements as we're going through
this process?
Mr. Schaerr. None beyond those I have just mentioned.
Mr. Moore. OK. So very good.
Mr. Czerniawski, will you explain how the government has
abused nondisclosure orders relating to the use of information
obtained under FISA?
Mr. Czerniawski. Yes. Thank you for the question,
Representative. The government has utilized the information
gathered under the FISA in numerous of instances to spy on
Americans, whether that was spying on protestors during the
Black Lives Matter riots or looking at the communications of
19,000 donors to a political campaign. The list goes on and on.
Really, when people see that revelation coming up after the
fact, it does undermine their trust because they feel that the
government now is starting to snoop at them. That has a real
chilling effect if now, simply because you want to support a
candidate, now you could be subjected to government
surveillance. That is a pretty unnerving outcome for people to
see this carried out.
Even in this most recent iteration of the FISA
reauthorization fight, to see that those surveillance
authorities had been abused to spy on a sitting Member of
Congress, a sitting Member of the Senate, it showed to me that
the intelligence community seemingly had no self-restraint on
what they were willing to do to get access to whatever
information they thought was necessary. That is really
alarming.
Mr. Moore. Extremely alarming. For those of us that--one of
the top issues was always the weaponization of the government,
and certainly, certain Members were spied on and, like you
said, Members of Congress.
With that, Mr. Chair, I yield my remaining time to our
friend Mr. Cline if he wants to take it. If not, I will yield
back to you.
Mr. Cline. I appreciate the yielding.
Mr. Kiko, do you think you would support an independent
audit of these queries conducted under 702?
Mr. Kiko. Yes, I would support that.
Mr. Cline. How else can we ensure meaningful congressional
oversight when most of the relevant details are classified and
shielded from public scrutiny?
Mr. Kiko. Well, I just think there are a lot of
requirements that are already in the law. I just would hope
that the requirements are adhered to in a very quick manner,
the audits are done in a very quick manner, and the audits and
requirements are audited in the next year, so if they are not
complied with, then you can deal with that through the next
reauthorization.
I do think that the IG was very good in coming up with all
the problems and everything, and Congress responded to 15 or 20
requirements. It is, basically, oversight is--you have to bring
the intelligence community to heel.
Mr. Cline. Thank you.
Mr. Biggs. The gentleman's time has expired. I now
recognize the gentleman from California, Mr. Kiley, for five
minutes.
Mr. Kiley. Thank you, Mr. Chair.
I think it is important to note at the outset the successes
that we did have in the last Congress in reauthorizing FISA for
the protection of America and American national security while
instituting some truly significant reforms, which were
developed through the painstaking work of this Committee and in
a bipartisan way in a Committee that is not always known for
its spirit of kumbaya bipartisanship. We were able to find a
lot of common ground in protecting civil liberties without
burdening the ability of our national security officials to
protect Americans.
However, there is, as Chair Jordan noted, more work to do.
I do think it is important to look at what was done in the bill
that was signed into law in the last Congress. We had reforms
that included new and heightened civil and criminal penalties
for those who violate the terms of the FISA authorities and
that required reporting on FBI disciplinary investigations. It
requires the FBI to establish minimum accountability standards
for violations of the querying process. The bill significantly
reduced the number of FBI personnel authorized to approve
queries, required audits of U.S. person queries, and included
increased transparency measures, among other important reforms.
There is a broader question here, though, when it comes to
the pace at which we are seeing technology develop and the
newfound opportunities that this opens up for very problematic
violations of privacy or uses of surveillance, but then at the
same time, the opportunities to perhaps use that technology not
only to advance national security and public safety, but to do
so in a more narrowly tailored way.
Advances in AI are an example of that where there are
obviously a host, an unlimited variety, of potentially
problematic uses by those who are entrusted with the power to
investigate American citizens, but then there are also already
a number of very positive proven use cases.
So, my thought--and I will maybe direct this at you, Mr.
Hamadanchy--is on how we can harness this technology in the
right way going forward. You gave an example of how there was
one police agency in Florida that--or maybe this was you, but--
so either of you can weigh in on it, but that used an algorithm
to try to predict where crimes were more likely to occur. That
seems like it actually could be helpful if it allows us to
allocate police resources in the right way, but may be
unhelpful if it leads to people being targeted prematurely or
in a way that violates their civil liberty.
I guess I will give either of you an opportunity to opine
on that. Maybe we will start with Mr. Hamadanchy, and then
since I misremembered who actually gave this example, I will
give you the opportunity as well.
Mr. Hamadanchy. I would say we are definitely concerned
about the use of AI in surveillance. More than four years ago,
we had a report where intelligence agencies were saying they
want to embed AI in every stage of the intelligence cycle. The
NSA stands out in this context because it just described itself
as a leader in integrating AI into intelligence-gathering.
There are real concerns that AI is being used to automate
target selection and potentially initiating surveillance
without adequate human review. That is something the Committee
should look into as it considers these issues.
Mr. Czerniawski. Thank you for the question,
Representative. I think that it is incredibly important. As you
rightly note, artificial intelligence is a tool. It is a pretty
neutral values/neutral kind of thing. It depends on who is
using it as to whether or not that can be used for good or for
bad.
It is really unfortunate when we see instances like what
happened in Florida where they were using AI to develop this
algorithm to identify prolific offenders and then give them
community visits. One such person ended up in the hospital with
symptoms of an anxiety attack because of the presence of law
enforcement coming up and showing on their door. You can
imagine that this is a very frightening experience for some
people.
That it just reinforces the need--I don't want to go and
take away a tool from law enforcement from being able to
leverage a tool like artificial intelligence or other
technologies that are out there, but I do think that it is
important to make sure that if they are going to be using it,
that we have proper rules and guidelines and procedures in
place to minimize the potential downside here because when the
State does leverage these technologies and they get it wrong,
the costs are really high both for the city that ultimately
bears the responsibility of the legal action that follows and
for the victims in that case.
There is a really good conversation to be had about what we
can do to go and better set guardrails around this so that law
enforcement doesn't lose access to critical tools that can help
them with their public safety functions while simultaneously
protecting people's Fourth Amendment rights.
Mr. Kiley. Yes, and I will add to that this--getting this
right is really important, not just for protecting civil
liberties in the first instance, but also because there are so
many truly beneficial applications of AI in this and other
contexts, and that if we don't--
Mr. Biggs. The gentleman's time has expired.
Mr. Kiley. --get these threshold questions right for
protections, then it could lead to a backlash that undoes those
possibilities. With that, I yield back to the Chair.
Mr. Biggs. I thank the gentleman.
The Chair recognizes now the gentlelady from Florida, Ms.
Lee.
Ms. Lee. Thank you, Mr. Chair, for convening this important
hearing.
Thank you to our witnesses who have joined us today to
provide testimony. This Committee remains committed to
restoring public trust in our Federal law enforcement agencies,
and a critical part of that involves holding open, informed
conversations with experts like yourself to identify areas of
proposed reform and change that we can then use to inform our
work and collaboration with the intelligence community.
Last Congress, I was proud to lead the RISA bill that we
have been discussing here today, which made significant reforms
to how our Federal law enforcement agencies handle, collect,
and retain critical intelligence. This legislation was an
important first step in our broader effort to rebuild
confidence in the intelligence community and to keep America
secure.
There is no question that the abuses that we have seen,
particularly in the FBI's handling of Section 702 information,
are deeply troubling, and the surveillance unauthorized or
unlawful of American citizens must be stopped. It should not
have happened, and it must not happen going forward, which is
why accountability and transparency and the things that we are
discussing here today are so important.
It is also important that any discussion that we have about
702 include a recognition of why we have it and why it exists
and that this is a vital part of our country's intelligence-
gathering capabilities. It is an essential component of what we
do, and it is necessary that this conversation center on how we
make it better, how we ensure accountability and transparency
without dismantling it.
With that in mind, I appreciate your efforts to help us
strike that balance and identify where we can further improve
and strengthen FISA overall and Section 702 in particular.
Mr. Schaerr, I would like to start with you and in
particular return to the discussion you were just having about
the FISC and some of the reforms that we implemented in the
FISC to ensure a greater level of accountability and prevention
of some of the abuses that we've seen in the past.
In particular, as you know, the RISA bill implemented
inclusion of a more adversarial process for FISC proceedings.
You just mentioned you thought we could do more there with
amici. I would love to hear more about your thoughts about how
that program could be further enhanced.
Mr. Schaerr. My recollection of RISA is that--and I agree
with you, Congresswoman Lee, that there were some very useful
reforms in RISA, and we should look to build on those rather
than tear them down.
With respect to amici and the FISA court, I think that one
limitation is that, currently, amici are only appointed if the
judge decides that an amicus would be helpful. That obviously
leaves the FISC judge with lots of discretion as to whether to
appoint an amicus.
We would prefer to see that expanded somewhat so that there
is a category of cases where the judges are expected to appoint
amici, for example, cases that obviously involve sensitive
political issues or religious issues, like the FBI's
investigation of the traditionalist Catholics down in Richmond
last year or a couple of years ago.
Those kinds of situations--and you can identify categories
of situations where an amicus, at least presumptively, should
be appointed. If an amicus is not going to be appointed, then
the judge should have to explain why not.
Ms. Lee. I would note a couple of additional reforms we
made specifically in the FISC that were targeted to prevent
some of the past abuses we have seen--first, a requirement that
exculpatory evidence be included in an application before the
FISC; and second, also that opposition research could not be
the basis for granting of a warrant by the FISC.
Are there other things that you think--first, do you find
those reforms to be something that was productive and useful?
Second, are there other things you think we should get at or
address there with the FISC?
Mr. Schaerr. Absolutely. Those were important reforms, for
sure. One additional thing that would be very useful is to
create a system whereby people whose rights are abused in the
FISC court--for example, like the Kevin Clinesmith situation--
make clear in the law that people who are victims of that are
entitled to compensation when that happens. That will not only
be fair to those people, but also will provide an added
deterrent to abuse.
Ms. Lee. Thank you.
Mr. Chair, my time is expired.
Mr. Biggs. I thank the gentlelady.
The Chair now recognizes the gentleman from North Carolina,
Mr. Knott.
Mr. Knott. Thank you, Mr. Chair. Thank you for having this
hearing. To all the Members and the guests, thank you for your
participation.
I come at this line of questions from my own experience as
a Federal prosecutor. I have actually engaged in surveillance
of American citizens through a process called the Title III
wiretap. The level of protections that are required to get to
the actual flipping of the switch--it is fairly astounding.
Obviously, it is one of the more intrusive investigative
techniques, so you have to demonstrate necessity. You have to
demonstrate why other techniques are futile.
Candidly, once we would go to trial or once we would charge
the case, the rigor that we had to exercise was very important
for a number of reasons. Obviously, it kept the internal
investigators accountable. It kept the process--once we were--
the investigation was ongoing, it kept it open and honest. They
knew that their actions were going to be subject to pen and
paper. They were going to be subject to judicial review, and
then obviously, with opposing counsel, they would review it.
Also, when we would go to court, if there was a jury trial, the
jury themselves would know these actions; this evidence, was
collected with sufficient predication.
I do find it somewhat--I don't want to say troubling yet,
but it is amazing to me that there is so much resistance to the
warrant requirement alone. In that vein, with the Title III
wiretap on one side, I am very familiar with how the evidence
is collected, how it is stored, how it is accessed.
Mr. Czerniawski, if you could explain, with the 702 program
and the FISA court, how is the data that is collected under
that subsection--how is it, again, collected, stored, and then
accessed? Does that make sense? Just tactically and in a
physical server, how is it collected and stored and accessed?
Mr. Czerniawski. Yes, so it is stored on a secure server.
The backdoor search loophole really is why this is so
important, right? Because this is basically allowing the
government's ability to search the communications that they
have incidentally collected or, as Chair Jordan has referred to
it, incidental collection of Americans' information during the
surveillance of foreign targets, all without a warrant, right?
Mr. Knott. Right.
Mr. Czerniawski. This warrant requirement that we have been
advocating for adds that necessary layer of protection because,
as you pointed out, as we are--we are using warrants,
basically, as a procedure matter of demonstrating why we got to
where we got. That is really important that--when we are
talking about foreigners that is fine if we are going to go and
engage in surveillance, but once those surveillance powers turn
inward and we are trying to tap into that data that we have
collected, that we have that warrant process carried out, so
that way we have due process.
Mr. Knott. When that much information is readily available,
the natural trend throughout history, regardless of who is in
power--obviously, people on my side of the aisle are very
distrustful given what happened with President Trump. There
have been conservative abuses when we are in power, without
question.
Mr. Czerniawski. Absolutely.
Mr. Knott. In regard to that information, how easy is it to
access once it is collected?
Mr. Czerniawski. It is fairly easy for people to go and
access that, and that is why we have seen the litany of abuses
as to why that information needs to have a better, tightened
control. Now, admittedly, as Representative Lee was talking
about, they have done some limited changes in RISA to go and
talk about what kinds of members of the FBI can go and query
that data.
We believe that this is still not sufficient. This is why
we want that warrant requirement, so that way we can have that
procedural accountability of who is tapping into it, and be
able to have the necessary--
Mr. Knott. Is there any way, with the current technology
infrastructure, to determine how often that material is
accessed and by whom?
Mr. Czerniawski. Right now, I think that it is a challenge
in its own right because we don't have full transparency into
who is querying it.
Mr. Knott. That is a huge problem.
Mr. Czerniawski. It is a massive problem.
Mr. Knott. That is a huge problem.
Mr. Czerniawski. Yes. Absolutely, Representative.
Mr. Knott. Mr. Chair, let me talk to you really quickly. In
regards to you mentioned earlier that you worked with Carter
Page. That obviously highlights a lot of abuse, again, for
political purposes, right? Which is what the Fourth Amendment
is designed in part to protect against.
What type of penalties, what type of deterrences, are there
for the law enforcement community if they abuse the 702 access
to information currently?
Mr. Biggs. Well, currently, there is--for one thing, there
is no personal liability if somebody abuses that system. There
is only the potential for liability against the government
itself if you can jump through the necessary hoops.
Mr. Knott. Given how opaque this process is, that is very
hard to build a case against.
Mr. Biggs. It is very difficult.
Mr. Knott. Yes. In the Title III wiretap affidavit, if you
lie, if you submit false information, you will be charged. You
could lose your law license, et cetera.
Mr. Biggs. Right. Right. We don't yet have those kinds of
protections in the 702 area. We moved a lot closer to them with
RISA, but--
Mr. Knott. Yes. Well, I could go a lot longer, but, Mr.
Chair, five minutes goes very fast.
Mr. Biggs. Thanks. The gentleman's time has expired.
I now yield to myself for five minutes. I, like all you--I
want to see PCLOB back up and running.
I will ask you, Mr. Hamadanchy, is this the first time that
we have been without a quorum on PCLOB?
Mr. Hamadanchy. It is not.
Mr. Biggs. Yes. It is not. We need to get it up and run as
quickly as possible, but it is not--this isn't necessarily
unique. It needs to get fixed, though. I wanted to ask you a
question because you responded, and I am going to tell you how
I interpreted your answer why the firing took place. You said
it was reported that Laura Loomer recommended that. I interpret
that as meaning that you are like me. I don't know why he was
fired.
Mr. Hamadanchy. Yes, I only know the reports that I read.
Mr. Biggs. Yes.
Mr. Hamadanchy. I will say there is a difference, also,
between a job like the NSA where the President has the
authority to fire someone, where with PCLOB, it is an
independent oversight board, and the President should not be
able to fire those board members.
Mr. Biggs. He currently has the authority now, but maybe
some reform there is what you are suggesting.
Mr. Hamadanchy. Yes. Well, we would argue that he did not
have the authority to fire the board members.
Mr. Biggs. OK. All right. Fair enough.
I am going to go on here. Mr. Schaerr, you reported that
there was--you indicated that there was some reported abuse,
even perhaps post-RISA. Can you give us an idea?
Mr. Schaerr. Yes.
Mr. Biggs. Right.
Mr. Schaerr. That is from an ODNI report from after RISA
was passed that described a number of additional abuses,
including congressional staffers and a number of Federal
employees and even the spouse of somebody who had requested a
security clearance.
Mr. Biggs. It is remarkable because RISA was supposed to
take care of probably that very kind of thing and failed to do
so, which is indicative that we need to do more.
Mr. Schaerr. Right.
Mr. Biggs. Mr. Kiko, I would venture to say, the Chair is
gone, but the Ranker is still here. RISA allowed for the Chair
and the Ranker to attend FISC hearings. My guess is that they
haven't been able--actually, we have got a busy schedule, so
probably did not get to do that. We actually were trying to get
that expanded, those of you who are participating with us, so
there would be more Members of Congress who could actually get
there.
Do you know if the Chair or the Ranker have been able to
actually attend a FISC hearing?
Mr. Kiko. No, I do not.
Mr. Biggs. You have indicated there should be some more
oversight. How do we get more vigorous oversight, and in a
shortened answer, how would you say we do that?
Mr. Kiko. I would just--
Mr. Biggs. You need your microphone, please.
Mr. Kiko. Yes, I see that. I would just have meetings all
the time. I would have somebody, whoever is your oversight
person, call these people up and say, ``Where are you on this?
Give a report,'' because there are 15 or 20 requirements that
are new requirements in RISA. You should hold their feet to the
fire and get in coordination with the Inspector Generals and
have a whole bunch of stuff done that way.
I did mention in my testimony, though, there was a
requirement that--for one of the intelligence agencies to use--
I think it was the FBI--AI to make sure that there is
compliance.
Mr. Biggs. Right.
Mr. Kiko. I don't know why this body, your Committee,
shouldn't be able to real-time make sure that there is
compliance, and what does that compliance look like? Just make
sure that they are complying with everything because you are
going to be reauthorizing the bill in a year.
Mr. Biggs. I agree with you. We need to be more vigorous in
oversight, definitely and for sure.
Mr. Czerniawski, the warrant requirement--and Mr. Knott
alluded to this. A lot of people think that is just too onerous
to get. With a recent court ruling, but beyond that, if there
are exigencies in there--did we miss any exigencies, any
sections, when we put together the amendment to the proposed
bill last year?
Mr. Czerniawski. Thank you for the question, Mr. Chair. I
believe that the warrant--the sections to the warrant
amendments that you put together during the last Congress were
quite robust in terms of providing the needed flexibility for
the agencies to conduct their surveillance without necessarily
needing to worry about that. You did a very good job with that,
sir.
Mr. Biggs. Thank you. I would say that I am where Chair
Jordan is. I thought we actually opened the door up too wide,
broader than you would have in a normal Fourth Amendment
exigency circumstance.
Needless to say, we are going to work on this. I appreciate
all of you being here today. I appreciate your testimony, and I
think more reforms ahead, to be frank with you. So, with that,
thank you all, and we are adjourned.
[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.]
All materials submitted for the record by Members of the
Subcommittee on Crime and Federal Government Surveillance can
be found at: https://docs.house.gov/Committee/Calendar/ByEvent
.aspx?EventID=118101.
[all]