[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
THURSDAY, DECEMBER 11, 2025
__________
Serial No. 119-44
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
62-294 WASHINGTON : 2026
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
CHRISTOPHER HIXON, Majority Staff Director
ARTHUR EWENCZYK, Minority Staff Director
------
C O N T E N T S
----------
Thursday, December 11, 2025
OPENING STATEMENTS
Page
The Honorable Jim Jordan, Chair of the Committee on the Judiciary
from the State of Ohio......................................... 1
The Honorable Jamie Raskin, Ranking Member of the Committee on
the Judiciary from the State of Maryland....................... 3
WITNESSES
Brett Tolman, Executive Director, Right on Crime
Oral Testimony................................................. 5
Prepared Testimony............................................. 7
Gene Schaerr, General Counsel, Project for Privacy & Surveillance
Accountability
Oral Testimony................................................. 12
Prepared Testimony............................................. 14
James Czerniawski, Head of Emerging Technology Policy, Consumer
Choice Center
Oral Testimony................................................. 25
Prepared Testimony............................................. 27
Elizabeth Goitein, Senior Director, Liberty and National
Security, Brennan Center
Oral Testimony................................................. 37
Prepared Testimony............................................. 39
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Committee on the
Judiciary are listed below..................................... 133
Materials submitted by the Honorable Andy Biggs, a Member of the
Committee on the Judiciary from the State of Arizona, for the
record
A post from President Trump regarding FISA, Truth Social,
Apr. 10, 2024
An article entitled, ``Warrantless FISA Searches are
Unconstitutional, Judge Says in Landmark Ruling,'' Jan.
27, 2025, Headlines USA
An article entitled, ``Government surveillance erodes trust
between citizens and government,'' May 8, 2025, Americans
for Prosperity
An article entitled, ``More Than 30 Bipartisan Organizations
Urge Congress Against Reauthorizing Spy Power in Spending
Bill,'' Feb. 28, 2024, Breitbart
An article entitled, ``Curbing the Power of Surveillance
State: Section 702 Reform.'' (Not privided at the time of
publication)
Materials submitted by the Honorable Jim Jordan, Chair of the
Committee on the Judiciary from the State of Ohio, for the
record
A letter to the Speaker Johnson, Majority Leader Thune, and
Minority Leaders Jeffries and Schumer, from Reform
Government Surveillance, Dec. 4, 2025
A statement from the Electronic Frontier Foundation, Dec. 11,
2025
A letter to the Honorable Jim Jordan, Chair of the Committee
on the Judiciary from the State of Ohio, The Honorable
Jamie Raskin, Ranking Member of the Committee on the
Judiciary from the State of Maryland, and Members of the
Judiciary Committee, from a coalition of 25
organizations, Dec. 10, 2025
QUESTIONS AND RESPONSES FOR THE RECORD
Questions for Brett Tolman, Executive Director, Right on Crime,
Gene Schaerr, General Counsel, Project for Privacy &
Surveillance Accountability, James Czerniawski, Head of
Emerging Technology Policy, Consumer Choice Center, and
Elizabeth Goitein, Senior Director, Liberty and National
Security, Brennan Center, submitted by the Honorable Troy E.
Nehls, Member of the Committee on the Judiciary from the State
of Texas, for the record
Response to questions from James Czerniawski, Head of
Emerging Technology Policy, Consumer Choice Center
Response to questions from Elizabeth Goitein, Senior
Director, Liberty and National Security, Brennan Center
OVERSIGHT OF THE FOREIGN INTELLIGENCE
SURVEILLANCE ACT
----------
Thursday, December 11, 2025
House of Representatives
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to notice, at 9 a.m., in Room
2141, Rayburn House Office Building, the Hon. Jim Jordan [Chair
of the Committee] presiding.
Members present: Representatives Jordan, Issa, Biggs,
McClintock, Tiffany, Massie, Roy, Fitzgerald, Cline, Gooden,
Van Drew, Nehls, Moore, Kiley, Hageman, Lee, Fry, Grothman,
Knott, Harris, Onder, Schmidt, Gill, Baumgartner, Raskin,
Lofgren, Cohen, Johnson, Jayapal, Scanlon, Neguse, Ross,
Balint, Garcia, Moskowitz, and Crockett.
The Committee 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.
The Chair recognizes the gentleman from Texas, Mr. Nehls,
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.
Chair Jordan. I thank the gentleman for leading us and
sorry to hear of his recent announcement. He is not going to be
running for reelection, but glad to have him with us here
today.
We will start with opening statements, and we will get
right to witnesses and to today's hearing.
On February 2, 2021, the FBI was given, I believe, it was
just then when we were in the Minority, just Minority staff and
Members, a briefing on the 702 program and I remember that
briefing. I can't remember who asked the question, but one of
us asked the question how many agents, how many people at the
FBI, have access to the 702 data? The data that is collected in
this database, surveilling foreigners, but all kinds of people
get swept up, all kinds of Americans, U.S. persons get swept up
in this. How many agents, how many people at the FBI can query,
which I always point out is a fancy name for search, how many
people can search this data? Their answer was 10,000 people. We
didn't know what answer to expect, but we didn't quite expect
that big of a number. If they had told us three people, I
thought well, that seems fairly small. If they had told us
about any number over a 1,000, I would have said that is crazy.
They told us 10,000.
We then said how many queries--we found out we had the IG
do a study and investigation. How many queries are these 10,000
agents, potentially 10,000 agents doing who have access to this
information, how many are they doing on U.S. persons? That
answer from the IG was three million, three million in one
calendar year, 2021.
The IG also told us that 278,000 of those searches on U.S.
persons were most definitely done in an improper way. What that
meant by improper is they didn't follow the rules Congress had
set. They didn't follow the FBI rules. They didn't follow our
rules. They didn't even follow their own rules when they were
doing these unbelievable millions of searches, 278,000,
definitely done improperly, and the potential of 10,000 people
at the FBI to do those very searches.
Who were they searching? Who are some of the people they
searched? Well, the IG told us this as well: Journalists,
people part of Black Lives Matter, Members of Congress, 19,000
political donors, and ex-girlfriends. It was as obnoxious as
you can imagine. Again, we are just talking about the 702. We
are not even getting into Title I. With all the problems with
Title I, some of the things we learned a few years ago relative
to surveilling a Presidential campaign, we all know about that.
We are just talking about 702, that all this is coming up, as
everyone knows for reauthorization, the 702 program for
reauthorization, but we can address the Title I as well. All of
that is coming due here in just four months. We felt it was
important to have this hearing when we begin to talk about some
of the things that still need to be done.
I want to back up a second to say this. Last Congress, I do
think the good work of this Committee, some of our Members
working closely in a working group with Members of the House
Intelligence Committee, I do think we had some good reforms
that got put into the bill last Congress. A lot of that is due
to the work of our witnesses here and the groups that they
represent and we appreciate that. We codified procedures to
reduce improper queries. Last year the number was done to 9,000
queries on U.S. persons. Important changes that were made to
the 702 program safeguards, protecting Americans' liberties and
of course, some changes also made to the Title I section of the
FISA law as well.
I know our Ranking Member knows this. I know every Member
of this Committee knows this. We are the Judiciary Committee,
where we are supposed to be focused on protecting the
Constitution, the Bill of Rights, and the liberties that we
enjoy as Americans. We think it is important, as we move
forward, that we do just that and part of that is if you are
going to search this database, and you are going to search
using an American's name, phone number, and email address, we
believe you should go to a separate and equal branch of
government and get a warrant to do so. We think that is
fundamental. Everyone knows that last Congress we were close to
making that happen, close as you can get without making it
there across 212-212. I will never forget that vote. We want to
hopefully get that included in the reforms that we put together
as we move forward over these next four months.
To start that effort, we have got some great witnesses who
we will look forward to hearing, but I want to yield back now
and let the Ranking Member have his opening statement and then
we will get right to our great panel. With that, I yield to the
gentleman from Maryland.
Mr. Raskin. Thank you very much, Mr. Chair, and thanks to
our witnesses for joining us today. Section 702 expires April
19th next year. This gives us four months to put together a
bill that prioritizes protecting American fundamental
constitutional rights while preserving a program that advances
national security. Over the years, FISA has remained a subject
of bipartisan collaboration on this Committee, and I really
want to thank Chair Jordan and Chair Biggs for working with all
of the Members of the Committee to protect American civil
liberties.
When Congress reauthorized Section 702 last Congress, we
gave the Executive Branch two years to show that it could
protect civil liberties without the need for greater judicial
oversight. We said that we would rely on the FBI's promise that
the modest changes, like requiring approvals for U.S. person
queries in the Reforming Intelligence and Securing American
Act, or RISAA, would be enough to prevent greater violations of
civil liberties, and we promised in turn that we would keep a
close eye on how surveillance authorities are used during that
time. This two-year experiment is nearly complete now and the
results are alarming. We have witnessed an attack on the FBI's
internal guardrails against abuse of Section 702 authorities
and an unprecedented increase in government surveillance and an
alarming coziness between the government and big tech, all
which puts Americans' data and civil liberties in jeopardy.
We must strengthen Federal law to protect American privacy
and liberty and Congress can start with FISA Section 702. As
everyone in the room knows, 702 was never meant to apply to
American citizens. Under the law, the government can only
collect communications from targets to meet two criteria: (1)
They have got to non-U.S. persons; and (2) they have got to be
located overseas. Americans and people on U.S. soil are
protected by the Fourth Amendment that prohibits unreasonable
searches and seizures, guarantees the warrant requirement. If
law enforcement wants to look at American citizens' emails,
they have got to get a warrant to do it. Despite all these
protections, because Section 702 enables the intelligence
community to ingest an incredible amount of data, American
citizens' communications are often swept up in 702 collections.
When that happens, those records end up in the FBI's massive
database and under current law, the FBI can search that
database for U.S. person identifiers like Americans' names and
street addresses or evidence of potential crimes or threats to
national security. As the Chair said, ``10,000 have access to
that.''
Administrations of both parties have repeatedly abused this
trove of U.S. person data. Recent audits show the FBI has
searched the 702 databases for candidates for Federal office,
Black Lives Matter, protesters, and Federal contractors, among
other Americans, who ought to be protected. Two years since we
enacted RISAA. However you might have felt about the modest
changes in that bill, the landscape has changed. For years, the
leaders of this Committee have warned of how Executive Branch
surveillance powers could be abused by administrations that
don't show sufficient care for the protection of civil
liberties and who use cutting-edge technology to spy on
Americans and who ignore basic principles of due process and
constitutional freedom to achieve their own ends.
In 2025, we know that we were right to worry. Here is just
one example I have been concerned for years about U.S.
Government purchasing and compiling data about our own people.
That problem has been compounded in this administration which
is actively building profiles on American citizens by combining
data traditionally siloed in separate agencies, your tax
returns, your health records, and any interactions with police.
With information purchased from tech companies, the
administration is breaking down the very few guardrails that
still exist on protecting our privacy, enabling the Executive
Branch to track the movements of dissenters and supporters
alike.
We have a lot to be concerned about at this point. I am
glad we are proceeding in a bipartisan way for the legislative
defense of essential constitutional civil liberties. I look
forward to hearing from all our witnesses today and how we can
property protect American civil freedom in this perilous era. I
yield back to you, Mr. Chair, the balance of my time.
Chair Jordan. I thank the gentleman for his statement.
Without objection, all other opening statements will be
included in the record. We will introduce today's witnesses.
Mr. Brett Tolman is the Executive Director of Right on
Crime, a nonprofit organization that advocates criminal justice
issues. He has testified here many times. He previously served
as the U.S. Attorney for the District of Utah and is the Chief
Counsel for the Crime and Terrorism for the Senate Judiciary
Committee.
Mr. Gene Schaerr is the General Counsel for the Project for
Privacy and Surveillance Accountability, a nonprofit
organization that advocates greater protections for privacy,
civil liberties, and government surveillance programs. He is
also the Managing Partner of Schaerr and Jaffe, LLP, where he
focuses on civil appellate matters.
Mr. James Czerniawski is the head of Emerging Technology
and Policy at the Consumer Choice Center. He previously was a
Senior Policy Analyst at Americans For Prosperity. His research
focuses on the issues surrounding technology and innovation.
Ms. Elizabeth Goitein is the Senior Director of the
Brennan's Center Liberty and National Security Program. She
previously served as Senate staffer with the Department and
with the Department of Justice. Her work focuses on
Presidential emergency powers, government surveillance, and
government secrecy.
I know many of you have been here before and we appreciate
the work you have done for our country for being with us today.
We welcome all of you and we will begin by swearing you in.
Would you please stand 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 that all witnesses answered in the
affirmative. Thank you. You can be seated, of course. Please
know, you have been through this before, that your written
testimony will be entered into the record in its entirety. We
ask that you summarize that in five minutes and we will just go
right down like you were introduced.
Mr. Tolman, you may begin.
STATEMENT OF BRETT TOLMAN
Mr. Tolman. Thank you, Chair Jordan, Ranking Member Raskin,
and the distinguished Members of the Committee. Thank you for
the opportunity to testify today.
Oversight of the Foreign Intelligence Surveillance Act is a
debate that goes to the heart of what it means to be an
American: Commitment to the rule of law, the constitutional
rights we hold dear, and the principle of limited government.
FISA is in desperate need of reforms, or rather our country
desperately needs to reform FISA.
For decades and with increasing regularity, it has been the
government's permission slip for warrantless spying on
Americans. This is despite the Fourth Amendment. To be sure,
FISA serves an important national security interest. I would
know. I helped write some of the FISA laws when I worked as
Chief Counsel over at Crime and Terrorism in the Senate
Judiciary Committee. I later prosecuted national security cases
as a Federal prosecutor. These credentials, however, don't
contradict the harsh truth that the FISA system is flawed. It
enables unconstitutional government surveillance and doesn't
protect our civil liberties presently.
Nowhere is this more clearer than with Section 702. Section
702 was sold to Congress as a vital tool to target foreign
adversaries. We were given high-stake assurances by DOJ and FBI
leaders, namely, James Comey and Robert Mueller, that it would
not be used improperly against honest Americans. I was in the
room when they represented it would not be abused. That was a
lie.
FISA abuse is not speculative. There is clear record of
systemic failure, constitutional betrayal, and the disregard
for the rule of law, confirmed by the FISA Court itself and
government watchdogs. For instance, the Crossfire Hurricane
investigation used flawed information and deceit to justify
FISA's surveillance of Carter Page, proves the vulnerability of
the system is to political weaponization.
Arctic Frost investigation, which targeted hundreds of
American citizens including sitting Republican lawmakers,
highlights how domestic political matters are swept up by FISA.
The FBI has carried out warrantless searches of Section 702
database involving American lawmakers, journalists, political
donors, and civil rights protesters. One thousand six hundred
searches were conducted for Americans who were at a specific
airport on a particular day. Two thousand backdoor searches
were done on athletes at a sporting event.
NSA analysts searched for communications of prospective
tenants and rental properties that they owned personally and
for people met through online dating sites. This is not
national security intelligence gathering, it is domestic
spying.
With FISA set for reauthorization in April, Congress faces
an important question. Will we limit the government, or will we
license its continued Fourth Amendment violations? Internal
policy changes by the offending agencies are not enough. FISA
must be rebuilt and reformed.
Section 702, for example, it is necessary that the Congress
requires the government to obtain a probable cause warrant if a
search is done on a U.S. citizen in a domestic investigation.
If this warrant requirement had been in place, the vast
domestic surveillance of Americans under Arctic Frost, for
example, would have required judicial review and likely would
not have occurred.
Section 704, which lets the government surveil Americans
abroad believed to be a foreign asset, would benefit from
heightened judicial review such as that declassified and
released court opinions and the use of third-party experts who
can review Section 704 applications.
Section 705(b) can easily bypass the requirement for
comprehensive judicial review, allowing the government to move
to a more intrusive form of surveillance with less scrutiny
than a new probable cause application would require. Reforms
should center on the consistent probable cause decisions.
Last, FISA Courts need structural reforms such as penalties
for omissions or misrepresentations like those used to target
Carter Page. The FISC should also incorporate third-party
advocates to balance the weighted government proceeding in
declassified FISC rulings.
In conclusion, Congress must not be complicit in
facilitating a surveillance State. It must either mandate
reforms or allow authorities like Section 702 to expire. I
applaud this Committee and its leadership for its thoughtful
review and I stand ready to work with you to craft reforms that
are conservative in principle, effective in practice, and
constitutional in design. Thank you, Mr. Chair.
[The prepared statement of Mr. Tolman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chair Jordan. Thank you. Mr. Schaerr, you are recognized
for five minutes.
STATEMENT OF GENE SCHAERR
Mr. Schaerr. Thank you, Chair Jordan, Ranking Member
Raskin, and the Members of the Committee. Thank you for the
opportunity to testify at this hearing which is particularly
timely as we prepare to celebrate the Declaration of
Independence next year.
In considering the reauthorization of FISA Section 702
which my organization supports, the overriding question faced
by this body is the extent to which it will allow the
intelligence community to continue engaging in warrantless
surveillance of Americans and without, as the Declaration put
it, the consent of the government through its representatives
in this body or otherwise. As you know, absent consent or truly
exigent circumstances, the Fourth Amendment generally condemns
warrantless searches.
While last year's reauthorization was in many respects a
good first step toward needed reform, at least four important
issues remain unresolved.
(1) Section 702 still allows the government to search
Americans' communications without a warrant through so-called
backdoor searches.
(2) Federal agencies routinely purchase and review our
geolocation internet search history and other sensitive
personal information from data brokers, all without a warrant
and without allowing providers even to inform us of those
searches.
(3) A newly expanded definition of electronic communication
service provider under last year's reauthorization allows the
NSA to force countless small businesses and other organizations
to assist in warrantless surveillance. It even includes houses
of worship, thus ensuring that even atheists will now have to
agree that someone is listening when we pray.
(4) There is still no provision requiring the FISA Court to
include amici, experts who represent the privacy interests of
all Americans in Title I surveillance proceedings involving the
Members of Congress, political campaigns, and other sensitive
targets. How then should Congress approach the upcoming
reauthorization?
First, we believe Congress should institute a warrant
requirement with appropriate exceptions before the FBI or other
agencies can search and review Americans' communications
collected under 702. Just last year, as the Chair mentioned,
this Committee in a near unanimous bipartisan show of strength,
this Committee voted to close that loophole and it should do so
again and this time insisting on closing that loophole as a
condition of reauthorizing 702.
Second, it is critical for Congress to rein in the Federal
Government's ever-growing purchase and warrantless searches of
Americans' geolocation and other sensitive personal data
purchased from data brokers. I applaud the Committee for its
impressive bipartisan work over the last several years to
address this issue, but this next reauthorization is the time
to insist that this data broker loophole also be closed.
Third, the definition of electronic communication service
provider under FISA should be narrowed to exclude houses of
worship and countless small businesses and other organizations
that were unfortunately included in last year's
reauthorization. There is no justification for secretly
coercing these entities to assist the NSA and the FBI in
conducting surveillance.
Fourth, Congress should require amicus participation in
politically sensitive FISA cases by finally enacting a robust
amicus provision of the sort that passed the Senate in 2020
with 77 votes. Nearly a decade after the Trump campaign and
transition were illegally surveilled, this key reform which
would have prevented many of the abuses that occurred in 2016
is still not in place. I have seen the impact of that
outrageous abuse in my separate work representing Carter Page
in challenging that abuse in court. Once again, I applaud this
Committee for including a robust amicus process in the reform
legislation last year, and I urge you to do so again also as a
condition of the new 702 reauthorization.
In short, with every passing year, it is harder to square
our emerging surveillance State with the consent of the
governed articulated in the Declaration of Independence and
embodied in your article of the Constitution, Article 1. With
bipartisan cooperation that has come to define this Committee's
work in this important area, I am confident that you can right
the ship.
[The prepared statement of Mr. Schaerr follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chair Jordan. Thank you, Mr. Schaerr. Mr. Czerniawski, you
are recognized.
STATEMENT OF JAMES CZERNIAWSKI
Mr. Czerniawski. Thank you, Mr. Chair, Ranking Member
Raskin, and the Members of the Judiciary Committee for holding
this critical hearing on the Foreign Intelligence Surveillance
Act. 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, all under the
guise of national security. National security is vital and few
would deny the many dangers facing our great Nation today. I
would know firsthand growing up in Queens, New York, and
experiencing the terrible events and aftermath of 9/11, a
tragic day that showed us the cost of being unprepared, but
also demonstrated just how quickly extraordinary powers, once
granted, can become normalized.
History warns us of the dangers of unchecked government
power. Time and time again, we have caught the intelligence
community raiding the civil liberties fridge, taking liberties
that were supposed to be off limits; apologizing barely when
they are caught, if we are lucky; promising to never do it
again, and then returning to business as usual. It would be
humorous if the consequences to Americans' rights were not so
serious. Too often, agencies appear more concerned with
managing bad headlines than safeguarding the privacy and rights
of the people they were created to serve and protect. This
repeated cycle of violations has resulted in an erosion of
public trust in the very institutions charged with keeping
Americans safe.
In December 2024, CNN's Harry Enten cited Gallup polling
showing that support for the FBI, in particular, was at an all-
time low with just 41 percent of respondents saying that the
agency was doing either an excellent or a great job. That
represented an 18 percent drop in just 10 years. That is a
damning indictment against the key agency responsible for
keeping Americans safe.
An intelligents apparatus that lacks the public trust
become less effective, not more. Americans are less likely to
cooperate with, have support for, or believe in institutions
that they fear and that is precisely why reforms are not
optional, they are urgently needed.
Congress has the responsibility to restore the balance and
when it comes to addressing the litany of issues under FISA,
there are many out there in terms of solutions, but here are
four key reforms that Congress should prioritize.
First, close the backdoor search loophole that allows for
warrantless searches of Americans' communications.
Second, close the data-broker loophole which lets agencies
buy their way out of constitutional constraint.
Third, strengthen third-party oversight at the FISA Court.
Improving due process and casting sunlight on decisions too
often made in darkness and secrecy.
Fourth, fix the overly expansive definition of an
electronic communication service provider, a definition that
dangerously brought in the kinds of entities that can be
deputized into the surveillance apparatus, a recent issue
stemming from FISA's reauthorization under the Reforming
Intelligence and Security America Act, also known as RISA.
These reforms that I highlighted here today will not end
surveillance nor will they prevent legitimate national security
operations. The country will not go dark, nor will it find
itself defenseless against foreign threats, but what they will
do is ensure that Americans' rights are not flagrantly
disregarded in the process of carrying out those duties. The
Constitution is not simply a piece of parchment to be admired.
This is a moment to prove that America's strength lies not only
in its defenses, but in its devotion to liberty. Let us stand
firm so that freedom is not just promised, but practiced.
As the Committee with primary jurisdiction, you have the
power to shape policy that balances security, freedom, and by
advancing meaningful reforms, you can restore public trust,
safeguard rights, and ensure that our intelligence agencies
serve the American people, not surveil them. Thank you for the
opportunity to share our thoughts with you today. I look
forward to the conversation and to answering your questions.
[The prepared statement of Mr. Czerniawski follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chair Jordan. Thank you, Mr. Czerniawski. Ms. Goitein, you
are recognized for five minutes.
STATEMENT OF ELIZABETH GOITEIN
Ms. Goitein. Chair Jordan, Ranking Member Raskin, and the
Members of the Committee, thank you for this opportunity to
testify. Congress conceived and enacted Section 702 as a
foreign terrorist surveillance program. Over the last 17 years,
it has become something very different. Today, Section 702 is a
rich source of warrantless access to Americans' communications.
It is long past time for Congress to put an end to this
betrayal of Americans' trust.
Section 702 authorizes the government to target any
foreigner overseas for foreign intelligence purposes and to
collect all their communications without an individualized
court order. This surveillance inevitably sweeps in Americans'
communications in large amounts because Americans communicate
with foreigners and because those foreigners need not be
suspected of any wrongdoing, these communications can and do
include purely innocent conversations between Americans and
their friends, family members, and colleagues overseas, a point
that was emphasized by the Privacy and Civil Liberties
Oversight Board in its 2023 report.
Now, if the government's intent were to spy on those
Americans, it would have to get a probable cause order, a
warrant in a criminal investigation, or a FISA Title I order in
a foreign intelligence investigation. The government gets
around this requirement by certifying to the FISA Court that it
is not using Section 702 as a way to access the communications
of particular known Americans. Yet, once the data is in their
hands, all of the agencies that receive Section 702 data
routinely run warrantless electronic searches for the
communications of particular known Americans. This is a bait
and switch that drives a massive hole through the Fourth
Amendment and FISA.
In 2023, the year for which we have complete data, the FBI
conducted more than 57,000 of these backdoor searches. Congress
and the FISA Court have attempted to put some limits on this
practice, but the FBI has engaged in persistent and widespread
violations of those limits according to the FISA Court. Those
violations have included searches for the communications of
Members of Congress and congressional staffers, protesters from
across the political spectrum, multiple U.S. Government
officials, journalists and political commentators, and more
than 19,000 donors to a congressional campaign.
In April of last year, Congress passed the Reforming
Intelligence and Security America Act which sought to rein in
the FBI's backdoor searches largely by bolstering internal
oversight and reporting mechanisms. We don't know what the
impact of these reforms has been, however, because the FBI
failed to track all its queries as required by law.
Specifically, last August, the Justice Department discovered
that the FBI was using a tool to search for the communications
of specific individuals, including U.S. persons from among a
particular target's communication. The FBI did not count these
as queries. It didn't follow any of the procedures required by
law such as obtaining attorney approval or providing a written
justification for U.S. person queries.
The government told the FISA Court that it lacks the
information to determine whether there was a sufficient legal
basis for these queries. As a result, we have no idea how many
queries the FBI conducted in 2024. The number that appears in
the annual statistical report is 5,518. That is the number of
known queries, the queries that the FBI actually counted. The
total number of queries remains unknown as does the FBI's
compliance rate. This is important information and Congress
should have it before it reauthorizes Section 702. Let me be
clear, even if the FBI conducted only 5,000 warrantless
searches for Americans' emails, text messages, and phone calls
last year, that would be 5,000 too many. Warrantless access to
Americans' private communications is an invitation to
government over reach and abuse under any administration.
All the internal oversight in the world cannot substitute
for the balance that the Framers struck in the Fourth
Amendment. As Justice Roberts said in a 2014 case about the
privacy of our cell phones, ``The Founders did not fight a
Revolution to gain the right to government agency protocol.''
Congress must do now what it should have done years ago,
require the government to get a warrant or a FISA Title 1 order
before accessing Americans' communications obtained under
Section 702. Thank you, and I look forward to your questions.
[The prepared statement of Ms. Goitein follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chair Jordan. Thank you, Ms. Goitein. All of you, well
done. Without objection, the following documents will be
included in the record: A letter from the Reform Government
Surveillance about the need to reform the Foreign Intelligence
Surveillance Act; a letter from a coalition of 25 organizations
about the need to reform Foreign Intelligence Surveillance Act;
and a statement for the record on the topic of today's hearing
from the Electronic Frontier Foundation.
We will start with the gentlelady from Florida, who was
part of our working group last year on this issue, the
gentlelady, Ms. Lee, is recognized from Florida.
Ms. Lee. Thank you, Mr. Chair, for holding this hearing,
and to our witnesses for appearing with us here this morning.
Last Congress, I was proud to sponsor the Reforming
Intelligence and Securing America Act, or RISAA, which was
signed into law. RISAA included sweeping reforms designed to
bring meaningful changes to surveillance operations and prevent
the past abuses of FISA from occurring again.
As Section 702 is now up for reauthorization, I'm committed
to work with this Committee to pass a bill that equips our
intelligence community with the tools that they need to protect
our national security against threats, while continuing to
protect the civil liberties of Americans.
There are two facts that should be evident from today's
hearing.
First, serious failures occurred under prior FISA and
Section 702 authorities, particularly in the FBI's queries of
U.S. person data.
Second, Congress acted; reforms were imposed, and those
reforms are now demonstrably working.
The Department of Justice Inspector General has now
completed the statutorily required post-reform review under
RISAA. That report confirms that the FBI did for years run
noncompliant U.S. persons queries; that the Foreign
Intelligence Surveillance Court found those practices
inconsistent with both statutory law and the Constitution, and
that this problem persisted well into the 2020's. Those facts
are gravely serious, demanded correction, and did not resolve
themselves.
The IG also found that reforms from RISAA have been
implemented, including mandatory preapproval by supervisors or
attorneys for U.S. person queries, mandatory DOJ audits of
every one of those queries, written factual justifications,
escalating discipline for negligent, reckless, intentional
violations, and many others.
Most importantly, the data now shows a dramatic reduction
in noncompliant queries. The IG found that widespread
noncompliant querying no longer appears to be occurring, and
that the remaining errors are overwhelmingly administrative/
typographically as opposed to structural or abusive.
None of this means that oversight is finished. The IG
explicitly noted that its postreform review covers only 1 year
and that continued monitoring is essential.
Today, we must continue to assess what further action is
needed, while recognizing the purpose of FISA, the FISC, and
702. Holding the FBI accountable does not mean stripping the
FBI of targeted vital tools that are needed to protect the
American people. We did not respond to the past failures by
abandoning national security. We responded by tightening the
law, raising the standards, hardwiring accountability, making
violations visible, and punishable. That is what we must do
again.
Mr. Schaerr, as you know, RISAA now requires the FBI to
obtain supervisory or legal approval before conducting a U.S.
person query of Section 702-acquired information, except when
there's a reasonable belief that the query could help mitigate
or prevent threat to life or serious bodily harm.
Why was that additional layer of oversight important?
Mr. Schaerr. It was a good change, and it certainly reduces
the number of abusive incidences of surveillance and examining
702 data that we saw in the past. As we've all discussed, there
are several other things that need to be done, but that was a
very good and wise change in my view.
Ms. Lee. To what extent has the increased auditing and
mandatory reporting, in your perspective, changed personnel
behavior? Are there measurable improvements with this
compliance? Tell us specifically what additional requirements
you believe we need to impose.
Mr. Schaerr. Well, there do appear to be improvements.
However, as Ms. Goitein mentioned, because the FBI has
apparently changed what it considers to be a query, it's not
entirely clear the extent to which the number of queries has
actually been reduced.
In terms of additional reforms, I would just reiterate the
four that I mentioned in my, in my testimony:
Closing the data broker loophole entirely. Especially if
the number of queries is relatively small, there's no longer
any argument that it would be a huge administrative burden to
get a warrant before the database is searched on Americans,
right?
That's something the prosecutors do all the time. They have
well-established mechanisms whereby they go to a magistrate. In
this case, it would be the FISC. They send them an email. They
outline why they think a warrant is warranted, and they
typically get a warrant very quickly in response.
It's not a huge burden of the sort that would be suggested
if you looked at the Carter Page warrant applications, for
example. The Carter Page warrant applications were very
extensive, but they are not typical of warrant applications in
general. Typically, getting a warrant is a very simple and
quick process when a prosecutor has a good reason for getting
it.
Ms. Lee. Thank you. Mr. Chair, I yield back.
Chair Jordan. The gentlelady yields back. The gentleman
from Maryland is recognized.
Mr. Raskin. Thank you, Mr. Chair. Thanks to all the
witnesses for your testimony.
Ms. Goitein, let me start with you. Lord Acton famously
said that: ``Power corrupts; absolute power corrupts
absolutely.''
There was a Supreme Court decision called Smith v. Maryland
50 years ago about the pen register, where Marshall and Brennan
said that unregulated government monitoring of people's private
communications is most fearful for people who have nothing to
hide--people who have not done anything illicit.
I wonder if you would maybe reflect for a moment on those
two thoughts in the policy choice that confronts us today.
Ms. Goitein. Yes, absolutely. I think that's true.
There is a sense, and we hear it sometimes from those who
actually oppose getting a warrant requirement, that if people
haven't done anything wrong, then they shouldn't have any need
for the protection of a warrant. From this view, warrants
protect the guilty, not the innocent. That makes no sense.
Right?
Warrants are there to make sure that people who are, in
fact, innocent are not subject to these searches, and that the
government has to have probable cause that someone has engaged
in wrongdoing to access their private communications.
There are all kinds of ways that access to private
communications can be used against a person even if they show
no evidence of crime. We see this in countries that don't have
Fourth Amendment protections or the constitutional protections
we have in this country.
One of the primary features of authoritarian regimes is
that people are tracked and that their communications are
monitored, and this is used to keep them in line and prevent
political dissent. That is not America; that should not be
America, and the Fourth Amendment is an absolutely critical
safeguard against that kind of overreach.
Mr. Raskin. I'm troubled by the government's contracts with
Palantir to create software that allows the government to
assemble and combine previously siloed information; in
particular, departments with data purchased from data brokers.
Could you explain to the Committee how purchased data can be
used to compile comprehensive profiles of American citizens?
Ms. Goitein. Sure. The word silo sounds very negative, but,
in fact, there's a good reason why data that is collected for
certain purposes isn't necessarily widely shared. Often, if
there's a major privacy intrusion involved in collecting the
data, what justifies that privacy intrusion is the specific use
to which the data is being put.
That same balance of factors doesn't apply in every
situation. It doesn't make sense to distribute the data more
widely, where the privacy intrusion is greater and the
justification might be lesser.
You have different parts of the government that are
obtaining very sensitive data, sometimes from data--often, from
data brokers. This is often data that is so sensitive that it
would need a warrant or a subpoena or a court order to acquire,
if the government wasn't able to purchase it from a data
broker.
This sensitive information may be used initially for very
specific purposes. If all these pieces of data, are shared
across the government and put together, it is possible, it
could be possible, to build dossiers on Americans that would
give a startlingly complete picture of their private lives--
their associations, their habits, and their beliefs. This is
information that our government in a free society should not
have access to, unless there is a specific justification for a
specific purpose.
Mr. Raskin. That is what the warrant requirement is all
about.
Ms. Goitein. Exactly.
Mr. Raskin. Like a lot of Members of this Committee on both
sides of the aisle, I'm a former prosecutor.
Perhaps, Mr. Tolman, you could address this because you
were the U.S. Attorney in Utah, as I understand it. When I
first heard about this stuff, I confess that my reaction was,
well, prosecutors oftentimes come into possession of
information without a search warrant.
For example, the Chimel search, a search incident, an
arrest will produce evidence of another crime; the Belton
search with automobile stops. In some sense, that becomes the
bread and butter of what a lot of prosecutors do.
I thought to myself, well, if this information just
accidently and inadvertently comes into the possession of the
government, then what's the big deal of letting the government
use it? I wonder why, as a former prosecutor, you would say
this really is a completely different matter and that's
comparing apples and oranges.
Mr. Tolman. Yes, I appreciate the question, because I think
we think of it wrong when we assess the use of the
extraordinary tools to gather intelligence in this country, we
are not looking at it through the criminal justice system lens;
we're looking at it through national security. The mentality of
national security review is that the Fourth Amendment does not
apply.
Once you cross that line, you no longer are concerned about
whether or not you're following certain constitutional
protections, and that should scare American citizens, that we
have people that will exercise that power who have crossed that
line and are no longer thinking of it in terms of what they
traditionally would as a prosecutor.
Mr. Raskin. Thank you, Mr. Chair.
Chair Jordan. You bet. The gentleman from Arizona is
recognized, Mr. Biggs.
Mr. Biggs. Thank you, Mr. Chair.
It's good to see all of you again, and hopefully, we have
an even better outcome this coming year than we had last time.
Let's just talk about this for a second. Is the idea that
an executive agency is going to have a manager, a supervisor,
review to determine whether you should actually have access to
sensitive data, is that the same thing as an independent
judicial body requiring you to produce probable cause to get a
warrant to search for that same sensitive data? Just each one
of you, is that the same thing?
Mr. Schaerr. Not at all.
Mr. Biggs. Yes.
Mr. Schaerr. It may be useful, but the process the
Constitution puts in place for dealing with those kinds of
controversies is that the Article III branch serves as an
independent check on the Executive Branch to ensure that
Americans' privacy is protected. We shouldn't abandon that
lightly.
Mr. Biggs. Others, quickly.
Mr. Tolman. I would quickly say, where you stand on an
issue depend on where you sit. I rarely had any supervisor that
pushed back against any request I had to approach either the
grand jury or a judge for a warrant.
Mr. Biggs. Yes.
Mr. Czerniawski. Yes, I agree with what's been said. I
think that simply having a manager in place doesn't go and have
the same kind of protection as a judge.
Mr. Biggs. Ms. Goitein?
Ms. Goitein. I couldn't agree more. Also, it's a different
standard. Probable cause is a very different standard from
reasonably likely to produce foreign intelligence.
Mr. Biggs. Yes, it's not on a different standard; it's a
different entity that the Constitution has established to
protect the rights of all people, guilty and innocent. It
protects everybody's rights.
When we say, OK, we are going to allow the FBI supervisor--
we are going to trust the FBI supervisor, hey, have they been
approved by either the voter or by the House of
Representatives? No. They have been hired by somebody. They are
working in the same agency, ostensibly, with the same
objective, rather than the objective of protecting rights. That
is an interesting dichotomy there.
The next thing is, when we get to this notion of the Fourth
Amendment not for sale, have you seen instances where the
Federal Government, State, or local government has attempted to
go around constitutional protections by buying data from
private entities, and then, circumventing the Fourth Amendment
requirement?
Ms. Goitein?
Ms. Goitein. It happens constantly. The Supreme Court has
held that cell phone location information, historical cell
phone location information, in sufficient amounts, a week's
worth of historical data, is protected by the Fourth Amendment
and that the government actually needs a warrant to compel
production of it.
Yet, multiple Federal agencies--the FBI, DEA, Secret
Service, different components of DHS, the Department of
Defense, and IRS--mostly all of them are buying access to vast
databases of Americans' cell phone location information.
Mr. Biggs. We also know that the definition of query is now
under dispute, apparently. Can you expand on that, Mr. Schaerr?
You have touched on it. Can you expand on that just for a
second?
Mr. Schaerr. Apparently, what the FBI did recently is they
started treating a mechanism by which they sort data in the
database, which, of course, requires them to look at the names
and information, identifying information about specific people,
but, apparently, they have some kind of a sorting process that
they go through in looking at the data, and they don't count
the sorting as a query. They only actually count it as query
when they drill down on a specific individual. There is--
Mr. Biggs. There is no way to determine how many actual,
what used to be called queries, are taking place under the new
system? We don't know?
Mr. Schaerr. That's exactly right.
Mr. Biggs. They have reported--the IG just reported a
couple of months ago that it was 9,000.
Mr. Schaerr. Right.
Mr. Biggs. Nine thousand. If that is--let's just assume,
arguendo, that this is the correct number. Well, then, that is
a manageable number to require a judicial warrant before you
conduct that query, is it not, Mr. Tolman?
Mr. Tolman. It absolutely is. In fact, my conversation with
a former chief justice of the FISC was his greatest concern was
the fact that there was so much pressure to grant everything
that was presented to them, that they didn't have the ability
to review it thoughtfully. Now, they do.
Mr. Biggs. My time has expired. There is so much more I
would like to ask. Mr. Chair, I have some articles I would like
to include into the record, if I might.
Chair Jordan. Sure. Sure.
Mr. Biggs. This is a Truth from April 10, 2024, from
President Trump saying, ``Kill FISA, it was illegally used
against me and many others. They spied on my campaign.''
This one is entitled, ``Warrantless FISA Searches Are
Unconstitutional, Judge Says in Landmark Ruling.''
Next, ``Government Surveillance Erodes Trust Between
Citizens and Government.''
Then, ``More Than 30 Bipartisan Organizations Urge Congress
Against Reauthorizing Spy Powers in Spending Bill.''
Finally, one entitled, ``Curbing the Power of Surveillance
State: Section 702 Reform.''
Chair Jordan. Without objection.
Mr. Biggs. Thank you, Mr. Chair.
Chair Jordan. Yes. I would just add, before recognizing the
gentlelady from California, to the gentleman's first point, not
only is permission from a manager/supervisor in an agency
different than probable cause, they didn't even follow the
rules they had set up within the agency with the manager. They
didn't even follow those rules. That is why we need the tried-
and-true standard.
The gentlelady from California is recognized.
Ms. Lofgren. Thank you, Mr. Chair.
As I listened to the witnesses, I was thinking back. It was
a little more than 10 years ago that Mr. Massie and I offered
an amendment, with the help of then-Congressman Justin Amash,
that would have prevented all this. It did pass the House and
never went into effect.
We have been over the years striving to do this. Somehow,
no matter which party is in the Majority, the Intelligence
Committee always manages to thwart our efforts for reform. I am
hoping that this could change this year.
We certainly failed last year in fixing the core problems.
We have a chance to change this. In fact, I am working to
reintroduce an updated, bipartisan, bicameral Government
Surveillance Reform Act, which will finally require warrants to
read America's messages; ban dragnet surveillance; and stop the
government from buying personal data. I'm hoping that many on
this Committee will join in that effort, as we have in the
past.
This is one of those issues where we do work together on a
bipartisan basis, and I'm hoping that we can finally succeed
this time.
The FISA Court itself has called out the FBI for repeated
unlawful searches, snooping on political donors, journalists,
Members of Congress, and even protestors. I think it is past
time for us to fix this.
If the government wants to read an American's email or
texts caught up in foreign surveillance, they should need a
warrant. The FISA Court found that the FBI misused the loophole
hundreds of thousands of times. The NSA can resume collecting
communications that merely mention a foreign target. That is
permitted by law. They can still buy private data, like
location, web browsing, and messages. We are seeing, as we have
mentioned, a growing trend of Federal agencies, including
defense and intelligence, contracting with companies like
Palantir to compile data.
I'm hopeful that we can move forward, but I have a couple
of quick questions.
Ms. Goitein, there is an expanded scope of who counts as an
electronic communication service provider--you referenced that
in your testimony--although the practical effects are
classified. Could you briefly explain--
Ms. Goitein. Sure.
Ms. Lofgren. --what kind of businesses could now be
required to assist government surveillance, such as data
centers, cloud storage providers, or even companies that simply
manage equipment that carry communications?
Ms. Goitein. Sure. In the past, the way that the
surveillance has worked is that the government has served
directives on electronic communication service providers. We're
talking about Verizon and Google, companies that actually have
direct access to our communications because they facilitate our
communications. That's the service that they provide. They
would turn over the communications of targets.
There was a FISA Court opinion a few years ago which found
that data centers for cloud computing--at least it was reported
that was the type of provider at issue--did not qualify under
that definition.
The Biden Administration wanted to make sure that they were
included, but they didn't want to reveal that this was the type
of provider at issue, because that information was and remains
classified.
They deliberately solicited an overbroad amendment, one
that was written in vague and very broad terms, so that no one
could figure out what kind of provider it was.
What it now allows is the government can compel the
assistance of any provider of any service, as long as that
provider has access to equipment on which communications are
routed or stored. Well, pretty much every American business and
a lot of organizations provide some kind of service, and they
all have access to communications equipment. That's a phone or
a computer.
Ms. Lofgren. Yes.
Ms. Goitein. There are some exceptions--hotels,
restaurants, and libraries--but the vast majority of ordinary
businesses that Americans frequent; for example, the commercial
landlords of the buildings where tens of millions of Americans
go to work every day, can be forced to assist the government
with surveillance.
This part is really important: These businesses don't have
the ability that Verizon or Google have to isolate and turn
over specific communications, they may have to give NSA
personnel direct access to their communications equipment and
all the communications that run through that equipment,
including purely domestic communications. Then, the NSA will,
basically, be on the honor system to extract the communications
of foreign targets.
Ms. Lofgren. Thank you. Mr. Chair, I would just note that
we also need to pass the privacy bill that Congresswoman Eshoo
and I introduced a while ago, and I'm reintroducing, because we
need to get it at FISA, but we also need to get it at the
source, so that people cannot sell our private data.
With that, I yield back.
Chair Jordan. I thank the gentlelady. The gentleman from
California is recognized.
Mr. Issa. Thank you. Briefly, does anyone on this panel
believe that Senator Blackburn, Senator Graham, Senator
Hagerty, Senator Hawley, Senator Johnson, Senator Lummis,
Senator Sullivan, Senator Tuberville, or Congressman Mike Kelly
are a risk to national security or would be reasonably believed
to be a risk, or should have been surveilled under a program
targeting them?
Seeing none, I will move on. They are my friends. They were
targeted because they were Republicans. That is unforgivable,
and the FBI cannot expect anything other than a consent decree
and criminal punishment if they ever do it again.
Anything less--and I will go to Mr. Tolman--if you were
prosecuting a case, would you accept anything less from
somebody who committed that crime, assuming you are not locking
him up for years for doing it in the beginning?
Mr. Tolman. No, absolutely not. Our history shows, for
example, in the attorney Kevin Clinesmith, that he was
prosecuted for his misrepresentations of the FISC, but received
no jail time. Is there meaningful deterrence? Presently, there
is not.
Mr. Issa. Well, it is true that no one is above the law,
but there is a caveat: Unless you are the law. Unfortunately,
the FBI and the Department of Justice are the law. Although, I
trust the current inhabitants, I trusted the Bush people, and I
was wrong. I trusted each of the successors, and I was wrong.
Let me just go through a couple of things to put it in
perspective, maybe for the record and maybe for people who are
truly laypeople.
If I wanted to find out if you were growing pot illegally
in your house and I flew over with a heat sensor, and then,
determined that you had hot spots, and then raided your house
without a warrant, what would I be doing? Would that be OK?
Mr. Tolman. No, it would not be OK.
Mr. Issa. Isn't it true that the Kyllo decision by the
Court was right on that point? In that, if I understand
correctly, what they did was they said that the reason it was
unacceptable versus, let's say, just flying over in an airplane
and seeing plants growing in your backyard, was because of the
tools used. Correct?
Now, as we are talking about this data, is that kind of
data available to Mr. Biggs or Mr. Jordan?
By definition, the first pillar of the Kyllo decision,
which is that the tools are not readily available to the
public--this massive amounts of data and the ability to gather
it, they wouldn't pay $100 million if it was available any
other way. Right? If they could just get it themselves? They
have met the first requirement.
What is any second requirement that you can see that would
allow them, having met the first requirement that what they are
getting is material, a tool, if you will, not available to the
public--it is not ordinary eyesight; it is not just walking up
and sniffing something at the door. If this tool is, by
definition, special, then the use of the tools falls directly
underneath this historic question of Fourth Amendment without
anything else. Does anyone see a way that they can carve their
way out of this? Yes?
Ms. Goitein. Well, they will try to say that a lot of this
information just isn't protected by the Fourth Amendment at all
because we are voluntarily sharing it with--
Mr. Issa. Aha. The Fourth Amendment--oh, you're absolutely
right and I agree with you, except the Fourth Amendment, I
personally--
Ms. Goitein. I don't think that.
Mr. Issa. I personally--
Ms. Goitein. You're not in agreement with me--
Mr. Issa. No, I agree with you that's what they will try to
do.
I personally have seen this tool that can pick up heat and
water damage above your ceiling. My son has one. It is
fabulous. It lets you find where you have got a leaky pipe. It
lets you find where there is a leak in your heating system.
Every heating and air conditioning company either has one or
should have one.
The fact that a special tool exists doesn't change the fact
that it is a special tool, does it?
By the way, heat coming out of your house was never
considered to be protected until the Court said the tool and
the source of the tool is what determines that; it is not an
ordinary eyesight.
I'm going to close, Mr. Chair, by saying: Shame on the
Court for not already having taken a case up and done this. If
they won't do it, this Committee must do it in reauthorization.
I yield back.
Chair Jordan. The gentleman yields back. The gentleman from
Tennessee is recognized.
Mr. Cohen. Thank you, Mr. Chair.
Ms. Goitein, we have been doing this--Ms. Goitein, we have
been doing this for a long time on different issues. Let me ask
you a question. The problem, is it the law or is it the
enforcement of the law?
Ms. Goitein. It's both. Those two things are related. One
of the things that I've wondered, when I look at these massive
compliance failures over the years, I don't think all those
compliance failures were intentional; I don't think all of them
were negligent.
They have built a system that is so massive and so complex,
and the rules are just so sort of arcane and intricate, that it
might actually be impossible to completely enforce the rules as
they would need to be enforced to protect Americans' privacy.
The one major advantage to the warrant requirement is that
it's so much simpler. You've reduced the need for all these
massive layers of oversight, for different rules, for different
tools you might use, for different queries, figuring out, is
this a query; is this not a query?
It's very, very simple. If the government wants to access
an American's communications, they submit a warrant
application. They go to the court, or a Title I application. It
simplifies the process, and that will itself, even leaving
aside the fact that you now have an independent branch of
government performing this review, will make compliance
achievable.
Mr. Cohen. With AI, are we going to have more and more
problems because there will be more and more data?
Ms. Goitein. Absolutely. With AI, we're going to have to
really reexamine how a U.S. person query is even defined.
Because if AI is used in a way that can select you as person
communications without actually using what we think of as U.S.
person identifiers, then we are sort of right back where we
were before with really no limits on governmental access to
U.S. person communications. Yes, that is an issue we will have
to--
Mr. Cohen. Has the FISA Court been fairly consistent in how
they have dealt with these issues?
Ms. Goitein. What I would say is that the FISA Court has
been remarkably tolerant of just this long history of abuses.
We focus on the FBI's querying abuses in recent years. This
program has been plagued with violations and noncompliance
since its exception--since inception.
I'm not just talking about the FBI. I'm talking about the
NSA, in particular; the CIA. The NSA was violating its query
restrictions systemically for almost a decade after the program
was put in place. Yet, every year, the FISA Court has
reauthorized this program. A couple of times, they've waited a
few months for new layers of oversight to be put in place.
To me, it's an example of: Fool me once, shame on you; fool
me twice, shame on me. Because it's been a 17-year pattern of
violations, extensive, and systemic violations. Yet, the FISA
Court points out the violations; is upset about them; says
they're unacceptable, and reauthorizes the program.
Mr. Cohen. Let me go to another issue, I guess. Mr. Issa
asked you about those seven or eight, nine Senators and Reps,
whether anybody thought that they should be subject to any
reviews. As I understand it, the idea was not because they were
Republicans; it was because they had--Mr. Smith had reason to
believe that--a court agreed in issuing a warrant--that they
had possible connections with the Trump White House and the
overthrow of our government.
Would that not give any of you all beliefs that they should
have been queried, looked at their records or their phone
calls? Ms. Goitein?
Ms. Goitein. Oh, I'm so sorry, I thought you were asking--
just repeat that?
Mr. Cohen. Yes, the idea that Jack Smith got a warrant--
Ms. Goitein. Yes.
Mr. Cohen. --apparently, because he thought that these
people might have some contact with the President and the
Committee to overthrow the government whatever it was.
Ms. Goitein. Right. Right. What we're dealing with here is
the fact that subpoenas for communications records are
extremely easy to obtain. You actually don't have to show that
the person in question is themselves involved in any sort of
criminal activity. The standard is one of relevance. That's a
very low standard.
When we're talking about communications metadata, which is
incredibly revealing information--this is the information that
the NSA was collecting in bulk--
Mr. Cohen. All right. Let me just go because my time is
about to run out.
Ms. Goitein. I'm sorry.
Mr. Cohen. It's a million-dollar question.
Ms. Goitein. Yes?
Mr. Cohen. Do you think those nine people, because they had
their metadata looked at, should get half-million to a million
dollars, simply by going to Federal court, like no other--
Ms. Goitein. Well, if we're going to do that, then that
should be open to everybody who's had their metadata acquired,
based on this very, very low standard. That will be a little
tricky.
Mr. Cohen. Thank you. I yield back, Mr. Chair.
Chair Jordan. The gentleman yields back. Mr. Tolman, are we
all in the database? Every single person? Every single
American?
Mr. Tolman. Yes.
Chair Jordan. Yes, this database is huge, right? They are
getting information on foreigners, but we are all getting swept
up in this. This is one giant--I call it the giant haystack of
information. You got 10,000 people at the FBI who can just--I
am going to search on Mr. Tolman, on Ms. Goitein. I am going to
search on whoever I darn well--and they have demonstrated that
they can't police themselves. Whatever the agency is, whatever
rules they have, they can't police themselves. This is why
Congress has to do it. Why not use the tried-and-true rule?
That to me is how big
this is.
I want to go down through a couple things here that have
been raised. First, to the gentleman from Tennessee's questions
on getting toll records. I do have a concern with this, because
some of this was done for a long period of time. Mr. Smith went
and got the toll records subpoenaed from the carriers, the toll
records of the Speaker of the House of Representatives.
Frankly, he waited until Mr. McCarthy became Speaker of the
House to get his toll records from three years prior. The real
concern I have with that is they did it for a two-month time
span.
To Ms. Goitein's statement, you can pattern someone's life.
You can figure out all kinds of things. Because they knew who
Mr. McCarthy called, who called him, when the call took place,
how long it lasted. If Kevin initiated the call, they knew
where he was at when he did so. Well, shazam. You can figure
all kinds of things out. That is the concern when they do this.
We need to--frankly, that is why this Committee passed the
nondisclosure--the gag order.
That is the other thing: They get that information and then
they go to the judge, tell the carrier, and tell AT&T that they
can't tell the customer that the government just got their
phone logs for two months, can pattern their life, and know all
that stuff I just talked about. That is a concern.
We have passed legislation out of this Committee; we hope
to pass it to the House here soon, which puts limits and
restrictions on that. Not just for the Members of Congress, of
course, but again to everyone.
Think that is a good piece of legislation we passed, Mr.
Tolman? I will come to you.
Mr. Tolman. It's essential.
Chair Jordan. Yes, it is essential. Everyone agree with
that?
Mr. Schaerr. Yes.
Chair Jordan. Yes. We got the NDO issue. Mr. Raskin and I
were talking about these areas of concern with privacy. We have
the third-party data, purchasing data, this--what we call the
Fourth Amendment is not for sale, because if you can buy stuff
that would otherwise require a warrant, and shouldn't be able
to do that. We got to do some work on that issue. Then there is
the fundamental question we are asking for FISA 702. Go get a
warrant before you get the ability to search people's--and then
there is this compilation of data.
I am just interested in any thoughts you have on--we are
trying to strategize, the Ranking Member and I, and the
Committee, how much do we try to put in 702? Do we do a
separate legislation? We are trying to figure that out, too. I
am just curious, any thoughts that you would have. Maybe we
will just go down the line. Let's start with the Democrat--or
Ms. Goitein and then we will move across.
Ms. Goitein. Yes, you really can't address Section 702 in
isolation, because Section 702 is part of a vast ecosystem of
often-overlapping surveillance authorities. If you cutoff one
avenue of surveillance, the government might be able to turn to
another, or to exploit gaps in this network of laws to conduct
surveillance without any statutory authorization.
Chair Jordan. You think we should try it all together?
Ms. Goitein. Well, it's not that. Frankly, there's a lot
you could address. We're not really talking about everything
here. The four reforms that have been specified here today
are--
Chair Jordan. Yes.
Ms. Goitein. --certainly, a good place to start, right?
That is a warrant for--or a Title I order for back door
searches. That's closing the data broker loophole. Fixing the
electronic communications service provider definition and
shoring up the role of amici in the FISA Court.
Chair Jordan. Thank you.
Mr. Czerniawski. I agree with Ms. Goitein that, at least
for the purposes of FISA, that we want to focus on those four
key reforms because I think that those are the most promising
things that we can get addressed. Then, for the other kinds of
things that you're highlighting there are other vehicles that
we can go and explore in terms of pushing forward.
Mr. Schaerr. I would not limit yourselves to FISA reforms
written narrowly.
Chair Jordan. Yes.
Mr. Schaerr. As you all are much more aware than we are,
there are only limited windows when legislation can actually
get passed by both chambers and signed by the President. Those
don't come along all that often, and it's important to take
advantage of them when they do.
Chair Jordan. Thank you.
Mr. Tolman. I would just last say, why aren't they capable
of self-governing in this area? We have to remember post-9/11
we shifted the FBI and the Department of Justice's overarching
mandate to intelligence gathering for national security
purposes. Once you do that their mentality is not to self-
govern.
Chair Jordan. Twelve billion dollars we give to the FBI.
That is their budget. Over half of it is used on the
surveillance stuff versus--you go to talk to the average
American, they would say like what? I thought the FBI was
supposed to be going after traditional bad guys, not spying on
Americans. You are exactly right. That is a problem.
One last thing. I know I am a little overtime. I will give
a little more time to the next Democrat witness.
Someone said let it expire. I forgot which of you said that
in your opening. Mr. Tolman. The guy who helped put it
together. Well, give me your thoughts on that.
Mr. Tolman. Well, without wisdom--and in my youth I bought
everything that was argued by the Department of Justice as to
why they needed it.
Chair Jordan. Yes.
Mr. Tolman. Then, you see their incapability of actually
governing themselves with such power. It would be like 215. We
let that expire and here we are still stopping national
security threats.
Chair Jordan. Yes.
Mr. Tolman. We didn't think that it was possible when 215
expired.
Chair Jordan. Yes. Yes. OK. All right. The gentleman from
Georgia is recognized.
Mr. Johnson. Thank you, Mr. Chair. I don't view this
Committee meeting as the most serious effort when it comes to
FISA reform because if it was, we would have someone from the
intelligence community sitting on this panel to give that
viewpoint.
Now, it is clear that this Committee also is not interested
in protecting the security, the personal, private security, and
the data of American citizens. That is because it was complicit
when this President set up DOGE, the Department of Government
Efficiency, put it in the hands of Elon Musk, and then
unleashed Elon Musk to collect the private data of citizens
through capturing the data of the Social Security
Administration, the Treasury Department, the Office of
Personnel Management, Health and Human Services, the VA, the
Consumer Financial Protection Bureau, the Department of
Commerce, the Department of Education, the Department of
Energy, the Department of Labor, the Department of
Transportation, and others, collecting this data.
The goal was to create a single centralized government
database. This effort was unprecedented and unauthorized by
Congress. While it was happening this Committee, as it does
today, stood silent and complicit and let it happen, and is not
concerned about it. I am concerned about that data.
I am wondering, Ms. Goitein, if you are as it relates to
Section 702?
Ms. Goitein. I'm very concerned about what you're talking
about. In fact, I was speaking about it earlier when we were
talking about sort of removing the quote, ``silos.'' That the
access to data, private sensitive data of Americans that is
collected by the government on occasion for legitimate reasons,
and then may sometimes for less legitimate reasons when the
government is simply buying up massive databases--making that
data widely available to anyone in government is a major
privacy and civil liberties issue.
Mr. Johnson. Yes. This Committee has not been interested in
that.
Let me ask a question: The Fourth Amendment, which requires
probable cause to conduct a search, also has exceptions to it
such as stop and frisk, evidence in plain view, search incident
to a lawful arrest, and exigent circumstances. Am I right? That
is for people on the street though, regular people.
People in the suites--before I say that I will note that on
February 20th of this year, Trump issued an Executive Order
forbidding the Federal Government, the DOJ, the SEC, and others
from applying or investigating the Foreign Corrupt Practices
Act. You all know that this is true. They are not enforcing
that.
At this point international crime perpetrated by American
citizens, Trump in the lead with the acceptance of a $400
million jet--he just the other day accepted a Peace Prize from
FIFA. Then, the next day they announced that an indictment of
FIFA is withdrawn and is being dismissed; Corruption. Pay-to-
play is what is happening under this administration.
Let me ask this question: Why shouldn't there be an
exception to the warrant requirement in a situation where an
FBI agent has a reasonable suspicion that a U.S. person should
be queried because that FBI agent has evidence that the U.S. is
engaged in an international conspiracy to commit a mass murder
of Americans, and that FBI agent wants to query the 702
database? Why shouldn't there be an exception to the warrant
requirement that allows that FBI agent to do that?
By the way, I should say that the FBI under Kash Patel and
the DOJ under Pam Bondi--I don't have any confidence that they
would apply the law justly, that they would act in a legal
fashion. I am afraid of what they will do. It implicates how I
am going to vote this time when it comes to this reauthorize of
FISA.
If someone could answer that question. Why shouldn't there
be an exception to the warrant requirement?
Ms. Goitein. Well, certainly, if there was an immediate
threat and a risk of life or safety there would be an
exception. That's for exigent circumstances. If not, if there's
time for the FBI to use its usual investigative techniques, the
ones that are less intrusive that don't infringe on a
reasonable expectation of privacy under the Fourth Amendment.
They would have time. You said they had evidence. Maybe they
have enough evidence already to get a warrant. If not, they
have other investigative techniques at their disposal that are
less intrusive, which is simply saying--
Mr. Johnson. Well, they are surely going to have a whole
bunch more material to work with also after this DOGE situation
has unfolded. I will yield back.
Chair Jordan. The gentleman yields back. I would just point
out that we had those exceptions in the language. In fact, I
would think many of us thought we almost had too broad of
exception language in there for imminent threat, for
cybersecurity, a situation if the person gave permission. We
had that in the language. We were as generous as you could
possibly be, I thought.
Mr. Johnson. Well, I will tell you, I am going to be
looking at it through a different set of eyes now that this
Trump Administration is in place.
Chair Jordan. Fair enough. Fair enough. Long as you are a
yes vote, we don't care how you get there.
[Laughter.]
Mr. Johnson. Well, let's not stand up here and act like
Democrats are the need through Biden is the need--
Chair Jordan. I have not done that. I have not done that.
Mr. Johnson. --Carter Page and all of that. Let's not stand
up here and act like that is the reason why we need to reform.
Chair Jordan. I have done that. I would just remind the
gentleman you can--
Mr. Johnson. That is all that we have up here among these
witnesses--
Chair Jordan. I think you are the one who has been
partisan, not me.
Mr. Johnson. --among the three Republican witnesses are
Carter Page aficionados.
Chair Jordan. The time of the gentleman has expired, and we
will recognize the gentleman from California for five minutes.
Mr. McClintock. Well, thank you, Mr. Chair. First, I am not
sure the data provided by an individual to the government in
say an application or a tax return shouldn't be reviewed by the
government. That is very different than the government
searching for and seizing data that is held by an individual.
That is the distinction my friend from Georgia misses. Other
than those--
Mr. Johnson. I am not missing anything, sir.
Mr. McClintock. Other than those remarks I am very
heartened by the fact that there is a broad bipartisan concern
on this issue reflected by all the panelists and almost all of
the Members.
As you know, the history of this goes back to 1761, the
trial of James Otis, challenging the writs of assistance, the
general warrants of the Crown. There was a 25-year-old attorney
in the audience in that trial who was named John Adams. Many
years later he reflected on the trial and said this:
Every man of a crowded audience appeared to me to go away, as I
did, ready to take arms against writs of assistance. Then and
there the child Independence was born.
In Adams' view that was the birth of the American Revolution,
was the abuse of searches by the Crown. Of course, it was also
the birth of the Fourth Amendment.
FISA is abused under Democratic and Republican
administrations, because it is human nature to acquire power
and once acquired to use it. That is why we divide the powers
of government and that is the reason we have a Fourth Amendment
that divides the power of searches between the Executive and
the Judicial Branches.
The Fourth Amendment to me is very clear: If you want to
look through my stuff, you have got to convince a judge that
there is evidence I have committed a crime and list the stuff
you want to search for. We are told that doesn't include
metadata like phone records. It seems to me that metadata is a
record of my electronic activities.
Isn't it, Mr. Schaerr?
Mr. Schaerr. It certainly is.
Mr. McClintock. Why would that not be equally protected
under the Fourth Amendment? What am I missing?
Mr. Schaerr. Well, it is protected under the Fourth
Amendment. The reason for excluding metadata searches in the
last version of the reform bill was just that searching mere
metadata is less intrusive, less dangerous than searching the
communications themselves. BThey both are protected by the
Fourth Amendment.
Mr. McClintock. They are records of my communications, even
if it is not a verbatim transcript of them. Then is that not
used to get a warrant to review a transcript?
Mr. Schaerr. Yes, it could be used to get a warrant.
Mr. McClintock. Basically, a general warrant could be used.
What is an effective general warrant could be used to get a
specific warrant, correct?
Mr. Schaerr. You could view it that way.
Mr. McClintock. There is no protection left if we are going
to go down that road, it seems to me. One ultimately has to
lead to the other.
Mr. Schaerr. Yes, I guess I would still say that
communication itself is more sensitive and more--should be
subject to higher protection. You're right, there is a bit of a
slippery slope there. As the Chair said, ``the last version was
quite generous.''
Mr. McClintock. You dealt with the FISA Court quite a bit.
I have been concerned about the secret and centralized nature
of that special court. I remember looking at statistics from
like 10 years ago and there were like 34,000 warrants that had
been requested by the government at that point. Only 11 had
been rejected by the FISA Court.
Mr. Schaerr. Right.
Mr. McClintock. Of course, the approval of warrants of
individuals like Carter Page were backed by false statements.
Not only were those claims not seriously questioned to begin
with, as they should have been, but when it came to light that
the FBI had lied in its applications, I am aware of very few
disciplinary actions taken by the FISA Court. There was one
prosecution that ended with a slap on the wrist. What are they
to make of this?
Mr. Schaerr. Well, I think you've just made the case once
again for adopting a robust amicus process in the FISC.
Obviously, the individuals who were subject to--who were being
investigated can't be told that they're being investigated.
There's a need to have an independent privacy expert, somebody
with a security clearance who can be present in especially
sensitive FISA investigations.
Mr. McClintock. Before the FISC we dispersed that
responsibility across the entire court system, did we not? To
get a warrant you had to go to a District Court judge.
Mr. Schaerr. That's typically true. In the FISA Title I
context though of course you go to the FISA Court.
Mr. McClintock. Right, but my question is why don't we go
back to the dispersed system where you at least have some
decentralization of this awesome power?
Mr. Schaerr. Well, there's an argument for that. What would
be more important is to be sure that in those decentralized
proceedings, if they don't actually give notice to the person
who's the subject of the investigation, that the amicus process
should be included there as well. It may be more efficient to
centralize it in FISC though.
Chair Jordan. The gentlelady from Washington is recognized.
Ms. Jayapal. Thank you, Mr. Chair. Thank you for holding
this hearing. Thank you to the group of us on both sides of the
aisle that have been very consistent on this and have taken on
our own party in power. It does seem like it gets very
difficult. People change their views based on who is in power.
I appreciate the work we have done on a bipartisan basis to
really protect the privacy of Americans and make sure that we
are upholding our constitutional obligations.
I want to go back to this question of queries, Ms. Goitein,
because you talked about it quite a bit in your opening
statement. These preliminary numbers are not really--we just
have no idea what they really show. I want to talk a little bit
more about why we need to approach that current number that's
been given to us with caution. Also, because this is a clear
example of how the FBI just changed the rules and they are not
complying--how do we make sure that whatever we write into
law--it appears now we have to define query. What ideas do you
have for when we approach this again that we are actually
ensuring compliance with our intent?
Ms. Goitein. Well, Congress did define query. I have racked
my brain to try to figure out why somebody at the FBI decided
that these were not queries. This was a system that allowed FBI
agents to retrieve communications associated with a particular
case file or facility, which is basically the communications of
a particular target.
Ms. Jayapal. Yes.
Ms. Goitein. It also allowed them to search for,
particular, participants and pull up those participants'
communications. Those could include U.S. persons. It was
basically a way to run queries on a subset of Section 702 data.
The query could be for a U.S. person's communications within
that pool.
It's hard for me to understand why they didn't consider
this to be a query. One possibility is that there was a drop-
down menu involved and the definition includes the use of one
or more terms to retrieve the unminimized content. Maybe if
you're clicking on a U.S. person's account rather than typing
it in maybe that's not being counted as a query. I don't know
this for sure. I'm just trying to understand.
Ms. Jayapal. Yes.
Ms. Goitein. One of the things that also puzzles me is that
apparently the National Security Division just happened to find
out about this in August 2024, and the practice wasn't
suspended until early 2025. Why did it take that long to look
at the definition, look at what was happening?
Ms. Jayapal. Well, that is right. It seems to me, Mr.
Chair, that we might be able to do some sort of our own inquiry
into this right away and at least get the correct numbers and
make sure that we are operating with full data.
I want to ask you, Ms. Goitein, also about the question of
702 does not allow for the targeting of U.S. persons, and yet
millions of Americans have been targeted for surveillance under
the statute. Why is it important to protect everyone in the
United States from warrantless surveillance? Does include
American citizens and all persons in the United States?
Ms. Goitein. Yes, first, as a constitutional matter, the
Fourth Amendment protects everybody in this country. If you
believe that a warrant requirement is a constitutional
requirement, as a District Court held a year ago, as a
unanimous panel of the Second Circuit seems to indicate in
their earlier decision, then it applies to everyone in this
country. There are practical reasons as well.
Just as collection of the communications of non-U.S.
persons incidentally pulls in U.S. person communications,
queries, any query an incidentally retrieve the communications
of Americans. That's because even if you're querying a non-U.S.
person inside this country and pulling up the communications
they have with a non-U.S. person target, those communications
can have other people involved in them. It can be a group email
or a group text that includes any number of U.S. persons. If
the non-U.S. person being queried is in this country, that
vastly increases the chances that they're going to be in
frequent communication with Americans in this country. These
are queries that pose particular risks to Americans.
Ms. Jayapal. We have been hit with lots of opposition
arguments, and so I want to give you one and ask you to refute
it. Some people view the apparent decrease in back door with
some alarm and asked whether the FBI is not making queries that
it should be making. How would enacting a warrant requirement
both protect Fourth Amendment rights while providing a clear
process for the FBI to do its work? This was just something
raised all the time to us.
Ms. Goitein. Yes. Well, if it is in fact the case that FBI
agents are not performing legitimate queries because there's
too many layers of oversight or they're worried that they will
be penalized if somebody later decides that they shouldn't have
made the query, there's really a simple answer to that.
Needless to say, the answer is not to get rid of the
oversight and go back to all the queries of Congress persons
and protestors and all that. The answer is to have the
government get a warrant to put the burden on gatekeeping these
searches where it belongs, which is with the courts. That would
reduce the need for all these layers of internal oversight and
whatever sort of administrative paperwork and burden is
associated with those layers. It would also remove any motive
that might exist for FBI agents to be excessively cautious.
FBI agents would be free to do their job, to vigorously
pursue investigations within the law and their professional
obligations. Then, the courts could do their job.
Ms. Jayapal. Their job.
Ms. Goitein. The job that they do and pretty much every
context except 702.
Ms. Jayapal. Yes.
Ms. Goitein. Which determines whether there is a lawful
basis for the search.
Ms. Jayapal. Thank you, Mr. Chair. I hope we can work
together on actually getting compliance with the real numbers
around the queries. Thank you. Yield back.
Chair Jordan. The tried-and-true method, going to a
separate and equal branch of government, getting a probable
cause warrant with imminent threat exceptions, is the answer.
Doesn't take a genius to figure this stuff out.
The gentleman from Wisconsin is recognized.
Mr. Tiffany. First, Merry Christmas to all of you.
Remember, St. Nicholas is watching and we are hoping that--he
does not need a warrant, but we are hoping we can get the
Federal Government to make sure they get a warrant.
Mr. Czerniawski, last time you were here we discussed the
concern with RISAA and the definitional expansion of electronic
communication service provider. Is that concern still there? If
it is, how are we going to fix it?
Mr. Czerniawski. Yes, that concern is still very much
there, unfortunately. As Ms. Goitein pointed out, it radically
and drastically expanded the definition of what would be
captured underneath an electronic service--communication
service provider. Because that threat is still there, that
there's an opportunity with this upcoming reauthorization
discussion to go and reign that back in.
Now, to their credit, in the Senate, Senator Mark Warner
did try to go and get some fixes to that definition, but it was
stripped out of the Intelligence Authorization Act process.
That problem is still there, and I hope that with this upcoming
debate that we can get the fix that's so desperately needed.
Mr. Tiffany. Is there anyone, in particular, that you would
point to that you would say we got to have this in terms of a
fix?
Mr. Czerniawski. Yes. Again, the most fundamental one is
getting a warrant, closing that back door search loophole is
really, really integral.
This electronic communication service provider jumps right
up there with it, because again it is just way too expansive.
It goes and conscripts a whole host of businesses into the
surveillance apparatus that had no intention of ever being in
there, so much so that it was a rare instance where you even
saw technology go--industries go and speak out against this
particular definition of language. ITI had submitted a letter
to Congress going and asking to go and fix that definitional
issue. Yes, very important.
Mr. Tiffany. Mr. Tolman, how can we limit this data broker
loophole without hurting intelligence?
Mr. Tolman. The fact that it's so secret and it's contained
exclusively within those that present to the FISC, those
powers--and we're really talking about internal powers of the
FBI--without being able to shed light on what they're doing and
who they're contracting with--it's very difficult to stop its
use. It will continue to be a challenge unless we are putting,
for example, third parties capable of reviewing what they're
searching for and who they're contracting with. If we prevent
and put guard rails on the scope of contracting, we might be
able to make an impact on its abuse.
Mr. Tiffany. Mr. Schaerr, we have seen some political
judges across the country really abusing their authority. Are
there guard rails against this with FISA?
Mr. Schaerr. Well, the warrant requirement itself is going
to help bring some accountability to the agencies. There's
always a chance that a judge will grant a warrant that he or
she shouldn't grant and there's always a chance that a judge
will deny a warrant that he or she shouldn't grant, but at
least in the judiciary there's an opportunity for appeal.
Mr. Tiffany. You see what Judge Boasberg has done. He has
served on the FISC. It is really of concern that he is going to
abuse that authority.
Mr. Schaerr. Well, no solution is perfect, but the
mechanism that the framers of the Constitution put in place to
deal with these issues is as perfect and as good a system as
we've seen. There will be lapses, there will be mistakes, but
there will be many fewer than we currently see.
Mr. Tiffany. It was talked about earlier, but amicus briefs
are allowed, correct, in the FISC?
Mr. Schaerr. I suppose they are technically allowed, but
since the FISC operates in secret nobody knows what the FISC is
considering. Nobody really--unless they're told, nobody knows
whether there's an opportunity to submit an amicus brief. Part
of the amicus system is that the FISC itself would appoint an
amicus and tell them we have this proceeding dealing with this
particular target. Can you give us your thoughts on it?
Mr. Tiffany. I am going to take it that there is some
limited ability. Should it be expanded?
Mr. Schaerr. The amicus program I believe should be
expanded. There are a lot of politically sensitive
investigations that currently are not subject to the amicus
provisions at all. There are several politically sensitive
investigations where FISC should be effectively required to
appoint an amicus to give it independent advice when it's
considering a Title I warrant.
Mr. Tiffany. Once again, with the amicus, if that is
allowed, what will that engender that will be helpful in this
process in your mind?
Mr. Schaerr. Well, two things: First, the amicus may
actually find real problems with the government's case and be
able to prevent an investigation or prevent surveillance that
should not have gone forward. At a minimum the presence of an
amicus is going to have a big deterrent effect on the FBI and
the DOJ.
In the Carter Page situation, for example, I am convinced
that if there had been an amicus in the room and in the
proceeding that Clinesmith would never have lied and that the
other misdeeds that occurred in connection with Carter Page
would likely not have occurred because they would have been
afraid that the amicus would recognize them and point them out
to the court.
Mr. Tolman. May I respond to that question Mr. Chair?
Mr. Tiffany. Sure.
One of the things that it would prevent is what happens
currently, which is where there's a deficiency in a warrant,
Title I warrant, the FISC judge will actually go back to DOJ
and ask them to fix or provide additional information on a
deficient warrant. An amicus system would prevent that.
Mr. Tiffany. Thank you for letting me exceed by time, Mr.
Chair.
Chair Jordan. You bet. The gentlelady from Pennsylvania is
recognized.
Ms. Scanlon. Thank you. I want to thank the Chair for
calling this hearing. FISA reform is a key area of bipartisan
agreement in this Committee, one where our shared interests in
limited government, protecting civil rights, and liberties
overlap substantially. The abuse of FISA by the FBI and the
intelligence community is pretty well-documented. Our witnesses
have detailed some of those abuses and made some really good
suggestions for reform to address that abuse.
One cause of the abuse of surveillance authority happens
because there are few enforceable limits to collection of data
and the use of that data. As long as we have to rely on the
good faith of the FBI, or the intelligence committee--community
regardless of who is in charge, surveillance can be ripe for
abuse. When we don't put clear enforceable limits in law, like
a warrant requirement, it means that Americans' most essential
rights and liberties are at risk, including the right to speak
their minds, to be free from unreasonable search and seizure,
and even their essential privacy rights.
The importance of protecting Americans' essential rights
and privacies has never been more clear than in the past year
when we have seen the current administration with respect to
its allies at DOGE and the Department of Justice mobilize the
government to invade and collect Americans' private data,
whether Social Security, tax, student loans, healthcare, voter
registration, or SNAP data. When you add that to the growing
purchase of online and social media data by the government, we
see that data being used in illegal law enforcement activities,
and even prosecutions of this administration's political
enemies.
One example is where we have seen the White House weaponize
government surveillance in law enforcement to target political
opposition and stifle political speech with the National
Security Presidential Memorandum 7, or NSPM-7, which directs
the intelligence community and law enforcement to target
organizations and individuals on the basis of their political
beliefs or political speech, actions that are unambiguously
protected by the First Amendment.
On the basis of that memo, we have seen Attorney General
Bondi direct the FBI to compile a list of groups allegedly
engaged in domestic terrorism, using examples of protected
political speech as key criteria for inclusion on the list. If
you strip away the pretext, then the purpose of these actions
becomes clear. This administration is already using the Federal
Government to target political opponents.
Given the known abuses of FISA by governments, past and
presence, and the willingness of this administration to run
roughshod over existing guard rails, it seems pretty clear that
we have got to act to limit those abuses, or else we are going
to see FISA being used illegally to spy on Americans who don't
align with this administration's agenda.
Ms. Goitein, in your testimony you raise the very good
point, that Americans should expect and be able to trust that
Congress will protect their privacy and their freedoms. When
Congress last considered FISA reauthorization last year we were
told repeatedly by the intelligence community that our Fourth
Amendment concerns were best addressed by better stewardship of
FISA authorities by the government.
Do you think that has played out in practice given the
known abuse of surveillance authorities that we have seen and
the failure to collect and report accurate data about the use
of those authorities?
Ms. Goitein. Yes, one important point to bring up is that
the failure to count these queries as queries and to follow the
procedures required for U.S. person queries, like getting
attorney approval or providing a written justification--those
are themselves violations of the law that Congress passed last
year.
While we don't know whether there were violations of the
substantive standard for queries or how many violations there
were, we know at least that there was a fairly systemic
violation of several requirements of the law that have happened
so far.
In terms of whether the particular queries met the
standards, I'll point out that the government credits some of
these procedural requirements: attorney approval, written
justification, audits, for improved compliance. Those were not
happening with these particular queries.
Ms. Scanlon. Yes.
Ms. Goitein. It would be reasonable to expect that you
would see a higher rate of noncompliance with these queries. I
don't know if we'll ever know that for sure.
No, I don't think the record has borne out this notion that
internal oversight was the best way to go about protecting the
Fourth Amendment. You can tell that by looking at the Fourth
Amendment, which does not talk about internal oversight. It
does not say if the government has a reasonable basis to
believe that its search will yield important information, it
can either go to a court and get a warrant or just do the
search. Right? That's not what the Fourth Amendment says.
That's not the way to protect Fourth Amendment rights.
Ms. Scanlon. Sure. The Constitution famously said you have
to get approval from a different branch of government to avoid
the kind of self-dealing or pay-no-attention-to-that-query-
behind-the-curtain-kind of an approach to this.
Can you just address again how the warrant requirement
protects people from potential targeting on the basis of their
political beliefs?
Chair Jordan. Quickly.
Ms. Scanlon. I am sorry. I did not realize my time has
expired.
Chair Jordan. The gentlelady yields back and we will
recognize the gentleman from Kentucky.
Mr. Massie. Thank you, Mr. Chair. Thanks for having the
hearing on this.
I have been working on this for over a decade with my
colleague Ms. Zoe Lofgren. I was ecstatic a decade ago when we
got an amendment passed to require a warrant, but somehow that
got stripped out. It is like Lucy and the football in Charlie
Brown. We get so close or we think we have won and then it gets
pulled away.
I will talk a little bit about the elephant in the room.
One of our colleagues here who used to be for FISA reform is
now the Speaker of the House and cast the deciding vote against
FISA reform last Congress. We don't want to talk about that too
much, but I am going to bring it up, because when he was asked
why he changed his position, he said he learned some stuff in a
SCIF. Well, the SCIF is like the magic room where they go to
change your mind.
The problem with his story is--I spent three hours in the
SCIF with him, and when we pressed the CIA Director, and the
Director of National Intelligence, and the Head of the FBI--all
of them were in the SCIF--give us one example where you
couldn't have solved the crime or you couldn't have prevented
some mass casualty event because of a warrant requirement. They
could not give us a single example.
The only person in that room who had a decent argument
about anything was a FISA judge who said you are going to need
more SCIFs somewhere if we are going to review these--if you
are--we are going to have to review warrants. It became a cost
issue, but I thought that was kind of lame. It is going to cost
some money to follow the Constitution. OK. What is it going to
cost?
One of the things that Zoe Lofgren reminded me of is there
is all these sorts of loopholes where we are afraid if we do
get our FISA reform the intelligence agencies are going to use
these loopholes to spy on Americans. The one I want to ask you
all about today--well, there are actually three of them. One of
them is Executive Order 12333. I see Ms. Goitein shaking her
head, so I will ask her.
Should we be concerned about Executive Order 12333 and what
could we do about that Executive Order to hem it in?
Ms. Goitein. Yes, absolutely. Yes. Let me explain a little
bit. As a general matter FISA applies when the government is
collecting information inside the United States or from U.S.
companies. If the government is collecting information overseas
it usually is relying on a claim of inherent authority as
governed by Executive Order 12333 and various other executive
policies. This is a critical distinction because there are
almost no legislative protections or guard rails for Executive
Order 12333, and there is no judicial oversight.
Now, this distinction between collecting here and
collecting there might have made sense in 1978 because,
collection inside the U.S. usually meant collecting on
Americans and collecting overseas usually meant collecting on
foreigners overseas. As we all know, with the changes in
technology that has completely changed. Communications, other
sensitive information is routed and stored all over the world.
In fact, that foreigners' communications were being stored by
U.S. service providers in this country and therefore--the
government would have needed to get a warrant for those before
702 is one of the reasons the government pushed to modernize
FISA with 702.
They just didn't address the other half of the problem,
which is that Americans' communications are routed and stored
overseas in ways that can in some circumstances remove them
from the protections of FISA. For example, when the government
collects information in bulk overseas and it's inevitably
pulling in Americans' communications.
Americans' communications are acquired incidentally. They
are acquired as part of bulk collection under E.O. 12333. The
only safeguards in place are those that the Executive Branch
has chosen to put in place. It will not shock you that those
rules and procedures are much more lax.
Mr. Massie. This isn't the answer I wanted. I wanted you to
tell me we shouldn't be concerned about Executive Order 12333.
Ms. Goitein. You did? Sorry. You called on the wrong
witness.
Mr. Massie. Another loophole that we have identified in the
Weaponization Committee was the Financial Privacy Act of 1978,
which is one of those bills that did the opposite of what it
was supposed--what the name of it was. It created a loophole
that allows the government to get bank records without any
warrants or anything. Is anybody familiar with this?
Mr. Tolman. Yes, I am.
I would say there is the concern, overarching concern I
have is you have 1978, you have 1981 on E.O. 12333. We didn't
have the ability to collect the data that we do today, nor the
access to it. It was a very different government that we were
talking about back then when those Executive Orders came out.
Mr. Massie. That may mean updated as well, you think?
Mr. Tolman. Absolutely it does.
Mr. Massie. Because we have, we identified where they have
been using it recently. A lot of this stuff actually comes
through whistleblowers.
Just in closing, I am disappointed that our Committee
didn't find the Arctic Frost spying on the Senators. It
wasn't--we are responsible for oversight. We couldn't even find
them spying on us. It was a whistleblower.
We need to tighten up our oversight over these Committees.
That, well, we did find that they were spying on the Speaker of
the House and the Members of this--well, at least one Member
that we know of.
Just one more thing before I close. I know we got some--I
would prefer to fix the law for everybody, not for the Members
of Congress.
Mr. Tolman. I totally agree.
Mr. Massie. One of our colleagues was very vocal about
making sure it was fixed for the Members of Congress. The fix
was to report the spying to the Speaker of the House and maybe
a couple Chairs of the Committees. Why not report it to the
person they were spying on, the Member of Congress? That is my
concern.
I yield back.
Chair Jordan. That is why we did the nondisclosure order
NDO Fairness Act that we passed out of this Committee to help
in that regard. The gentleman from Colorado is recognized.
Mr. Neguse. Thank you, Mr. Chair. I see my colleague Mr.
Massie. I don't know if you wanted to finish that thought, Mr.
Massie? I would be happy to yield a moment.
Mr. Massie. He gave me an extra minute, so I am good.
Mr. Neguse. All right. Well, thank you, Chair, for holding
this hearing. Certainly, thank you to all the witnesses.
I share the concerns with my colleagues on both sides of
the aisle with respect to FISA visas in the past and the
necessity for reforms.
Mr. Schaerr, I want to ask you a couple of questions, sir.
You testified today about your representation of Mr. Carter
Page, former campaign advisor, in his ongoing lawsuit against
the United States based on the 2019 finding by the Department
of Justice that the FBI had used invalid warrants to monitor
Mr. Page under Section 702.
Mr. Schaerr. Right.
Mr. Neguse. In 2020, five years ago, the Special Counsel at
Department of Justice Tom Durham secured a guilty plea from an
FBI attorney who doctored an email that was used in that
warrant application. Is that a fair characterization of the
events so far?
Mr. Schaerr. He actually went to trial. You are talking
about Kevin Clinesmith?
Mr. Neguse. Correct.
Mr. Schaerr. Yes.
Mr. Neguse. Went to trial. Got it and ultimately was
convicted?
Mr. Schaerr. He was convicted but didn't get any jail time.
Mr. Neguse. Correct. My understanding is that to address,
at least in part, some of the 702 abuses Attorney General Bill
Barr, in 2020, directed the creation of an Office of Internal
Auditing. You are familiar with that?
Mr. Schaerr. Yes.
Mr. Neguse. All right. That Office of Internal Auditing
which was created by former President--or not former, President
Trump's former Attorney General in the first term was assigned
to scrutinize the 702 process, to prevent these kinds of abuses
from happening in the future?
Mr. Schaerr. It was designed to scrutinize Title I
processes. The other provision of of FISA.
Mr. Neguse. Correct. Right.
Mr. Schaerr. Yes.
Mr. Neguse. I assume you agree that this is a worthy goal?
Mr. Schaerr. Certainly, a worthy goal and one that would be
advanced even further by adopting the amicus mechanisms that we
have discussed here and that passed the Senate with 77 votes a
couple years ago.
Mr. Neguse. Sure. Also, assume you are aware that the
Office of Internal Auditing no longer exists?
Mr. Schaerr. I wasn't aware of that.
Mr. Neguse. Yes. The Director of the FBI Kash Patel earlier
this year eliminated the Office of Internal Auditing at the
FBI. This was an office that the Republican Attorney General
Bill Barr created five years ago in response to the work done
by Chair Jordan, and the Republicans and Democrats on this
Committee.
It doesn't seem like that accomplishes a whole lot. I have
yet to understand the rationale as to why the FBI Director who,
by the way, at least prior to his appointment as FBI Director,
had expressed all kinds of misgivings about 702, FISA, and the
like, has now decided to eliminate the Office of Internal
Auditing at the FBI.
I wonder why that is? I don't know if you care to perhaps
make an educated guess.
Mr. Schaerr. Well, that is all the more reason why Congress
needs to act.
Mr. Neguse. Sure.
Mr. Schaerr. Congress, as the representative of the people,
needs to be the entity that is protecting the rights of
Americans.
Mr. Neguse. Yes. I don't disagree with you.
Mr. Schaerr. Yes.
Mr. Neguse. Clearly, there is an impetus for Congress to do
something. That is the, obviously, the rationale for this
particular hearing.
It would be nice to perhaps hear from our Chair and my
colleagues on the other side of the aisle, who I know have
direct relationships with the Attorney General of the United
States and the Director of the FBI, it would be nice to hear
them defend the Office of Internal Auditing that I presume they
supported in here five years ago. Doesn't really make much
sense to me why that would be eliminated.
I see, I am getting near the end of my time. As I said,
that there is a bipartisan consensus in the Congress that is
emerging this is an area ripe for reform. Again, it is
something I am supportive of. I look forward to working with my
colleagues on both sides of the aisle to try to make some
progress in that regard.
I will yield back the balance of my time.
Chair Jordan. The gentleman yields back. The gentleman from
Texas is recognized.
Mr. Roy. I thank the Chair. I thank the witnesses;
appreciate you all for being here.
Let me just ask this question among the four of you. I know
the answer. I will start with Mr. Tolman and I will move across
the panel. Is there any legitimate reason why we should not
have the warrant protection included in a reform to FISA? Mr.
Tolman?
Mr. Tolman. No. In fact, the reasons stated are
illegitimate. You take the argument that the FBI can do it
themselves, that is, I have never believed in the fox being
able to--
Mr. Roy. Right?
Mr. Tolman. --analyze and control what the fox does in the
henhouse.
Mr. Roy. Sure.
Mr. Schaerr. Absolutely. There is no reason not to, not to
include it. It should be included.
Mr. Czerniawski. That is a ``must have'' thing if we are
going to go and reauthorize FISA.
Mr. Roy. Ms. Goitein?
Ms. Goitein. No reason not to.
Mr. Roy. OK. With all due respect to one of our colleagues
on the other side of the aisle who was expressing some concerns
about not having somebody from the intel community here, the
intel community are the ones running the show, including by the
way, with all due respect, a lot of our colleagues on the Intel
Committee here who are a part of the show.
Judiciary exists to focus on the Constitution and the
rights of citizens to not have this occur. That is why the
Chair is absolutely correct to have this witness panel.
I would just note that all four witnesses, including the
Democrat witness, just said there is no legitimate basis for us
not to include a warrant protection requirement in FISA reform.
I want that to ring through the halls of Congress between
now and April so that when we are faced with the vote that is
inevitably going to occur on this issue, that we not have what
happened almost two years ago where we left the American people
without the protection the Constitution affords them from a
tool that is being used on a bipartisan basis to target the
American people and collect their data, which is offensive and
it is wrong. There cannot be this cloak of secrecy surrounding
intel.
To that point, I wonder if, Ms. Goitein, you might be able
to help me out here a little bit. I offered a couple of
amendments to FISA last time, and one of which was to demand
that we get all the reports of the queries. In that amendment
we settled on quarterly. I wanted it to be monthly or whatever,
but regular reporting.
We gave them a year at their wailing and gnashing of teeth.
They wouldn't be able to get this done and figured it out
within a year. OK? That year expired last, I will call spring.
Well, do you know and are you aware have we gotten any kind
of data and reporting information out of the System 1 efforts
that we can look at the data specifically with respect to these
queries? Can you illuminate us?
Ms. Goitein. I actually don't know the answer to that
question in terms of what you have received from the FBI. It
looks like Congresswoman Ross may?
Oh, OK. Yes, I am not sure. If you are not, if you are not
getting the data that you are supposed to be getting under the
law, needless to say, that is a very serious problem.
Mr. Roy. Well, what we are advised of is that we are--is
that the System 1 is not even really recording these queries
and set up in a way--
Ms. Goitein. Oh, I am sorry. Yes, I am sorry. The System 1,
exactly, that data, so what happened was that in it was March
2025, the National Security Division told the FISA Court that
it was currently cooperating or coordinating with the FBI to
determine whether any records of this functionality had been
generated.
Absolutely, this Committee should be following up on that
to determine whether any such records were located. If not,
whether they can be forensically reconstructed. That is
information you should have.
Mr. Roy. Then, I have a limited amount of time, I just want
to stipulate for this Committee that we need to see that data.
We need to see the results of the queries. We need to be able
to identify that information. I want to see more changes in
FISA to force more information and compile our ability to see
it.
I would note, also, that we included provisions there for
the Chair and Ranking Member of Judiciary, as well as
leadership, to be able to go into FISC proceedings. That has
been allowed pursuant to the law, however, the FBI has then
stipulated at times that individuals would have to be removed,
and that they would need to leave for certain sensitive
conversations.
Which, by the way, the statute never contemplated, and what
we passed did not contemplate, that Members of Congress who
have full clearance, that in the statute they are supposed to
be able to go in there in these FISC proceedings and monitor
them.
The FBI has no basis, whether that was the FBI under the
Biden Administration or the FBI under the Trump Administration,
to then say it is too sensitive, the Members of Congress need
to leave these proceedings.
Whatever we do in both carrying out our oversight function
of the Executive Branch, or whatever we do in FISA
reauthorization--unless we let it expire from Mr. Tolman's I
think wise advice--then we need to make sure that if we are
putting the Members of Congress in there to oversee this stuff,
the FBI doesn't walk in and say, sorry, you have seen enough,
you can't see the rest of this.
That is just facially absurd. I yield back to the Chair.
Chair Jordan. The gentleman yields back. The gentlelady
from North Carolina is recognized.
Ms. Ross. Thank you, Mr. Chair and the Ranking Member, for
holding this really important hearing. I am so glad that we
continue to have bipartisan support, particularly for the
warrant requirement. Thank you very much for the amicus
requirement, which is something that I have worked on in the
past.
As we are weighing this reauthorization of FISA, and until
we can get some of these safeguards that we want, it is very
important that we use the previously created internal safety
checks and guardrails. I am concerned that this Administration
has weakened that.
Maybe this response to Mr. Roy's initial point, but there
was a requirement that the Office of Inspector General review
the querying practices. They did file a report this past
October which found that the FBI has made progress in reducing
the number of noncompliant hearings.
Not enough. We agree. The Inspector General was not able to
conclude, based on their limited time, that the querying
compliance are entire--the problems are entirely in the past.
This really shows that we need to continue to have this
oversight with the tools that we have until we can get stronger
protections for the American public.
Ms. Goitein, the Privacy and Civil Liberties Oversight
Board serves an important oversight role, especially regarding
FISA. The board has published numerous reports and
recommendations about the different surveillance programs.
Released a report in September 2023 about Section 702 that
contained multiple recommendations to protect the rights of
Americans.
In January, almost immediately after he was sworn in as
President, Trump fired the Democratic board members. The board
now has one part-time member and lacks a quorum to begin new
investigations or issue reports signed by the board.
Could you tell us why ensuring the independence of this
board is so important and why it is important for it to have a
quorum?
Ms. Goitein. The Privacy and Civil Liberties Oversight
Board is the only independent agency within the government that
is charged with ensuring the protection of Americans' civil
liberties. It is a small board with a fairly small staff and a
huge and absolutely vital remit.
If you don't have the Privacy and Civil Liberties Oversight
Board doing its job, then all the oversight that is coming from
the Executive Branch will effectively be internal oversight.
That is sort of happening within these agencies.
PCLOB, as we call it, has been vital in bringing to light,
first, how the Section 702 program worked. If it weren't for
the PCLOB's 2014 report, most of what we are saying today about
how 702 works we wouldn't be able to say. The PCLOB managed to
get that information declassified and put it out to the
American people.
Because of the PCLOB's work we found out in 2023 that the
claim that warrantless backdoor searches were important for
national security, a claim we heard from the Government, was
not true. That the Government had only been able to identify a
handful of instances where these U.S. person queries had been
useful. In pretty much every case they could have either gotten
a warrant, consent, or invoke the exigent circumstances
exception.
It is because of the PCLOB that you had the tools that you
needed last year to enact this, and that you will have the
tools that you need now in reauthorizing Section 702 this year.
Now, if people on the PCLOB can simply be removed at will,
that will chill. First, there is no quorum, right, so there are
no people right now, essentially. That is a problem.
Unless Congress--it is not enough to just appoint people to
PCLOB. The independence of PCLOB must be protected because if
Members know that they can be removed if the President doesn't
like the investigations that they are conducting or the results
that they came up with, then that is going to chill their
oversight. We need them to be a robust oversight body.
There was a provision in the PCLOB authorizing statute
saying they could be removed at will. Congress removed that. It
seems clear that they can't be removed at will. In fact, there
are lawsuits right now challenging their removal. Congress
should make that explicit. Congress should make very clear that
Members of PCLOB can only be removed for cause.
Ms. Ross. Well, it is my great hope that at least in this
area we use our power and we have a check on the
Administration. With that, I yield back.
Chair Jordan. The gentlelady yields back. The gentleman
from Virginia is recognized.
Mr. Cline. I thank the Chair. I thank the Committee for all
their work on this important issue.
The Constitution is under the jurisdiction of this
Committee. The Fourth Amendment is pretty clear:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized.
No asterisk, no footnote that says ``but except for this case
or in cases of national security or otherwise.''
Let me just ask Ms. Goitein, under 702 the Government is
prohibited from engaging in reverse targeting. Can you describe
what reverse targeting is and why it is problematic?
Ms. Goitein. Reverse targeting is when the Government
claims to be interested in a foreigner overseas but, in fact,
the reason is collecting those communications is because they
are interested in the communications of an American who may be
communicating with a foreign partner.
Mr. Cline. What penalties, if any, does Section 702 levy
against Government actors that engage in reverse targeting or
otherwise abuse the RISAA framework?
Ms. Goitein. Well, right now there are internal
accountability procedures that have been adopted by the FBI. I
don't think that they are public. They were required by RISAA.
I don't think that they have been made public and there is no
public information. I am not aware of anyone having been
disciplined for it.
Mr. Cline. Do you have an estimate of the volume of
Americans' communications that has been collected as part of
Section 702 surveillance?
Ms. Goitein. The Government has refused to provide that
estimate. Members of Congress have been asking for it since
2011.
Mr. Cline. Has the FBI ever estimated the volume, to your
knowledge?
Ms. Goitein. Not to my knowledge. I am not sure that they
are particularly interested in that number.
Mr. Cline. Now, as you have discussed, according to the
ODNI report, queries by FBI were up to 2.9 million in 2021, 2.9
million, declining to 119,000 in 2022, 57,000 in 2023. Between
April 2024-April 2025 down to 9,000.
Can you estimate as to why there was such a large number of
queries in 2021 and why that number has come down dramatically
in recent years?
Ms. Goitein. Yes. What we have been told by the FBI is that
there were a lot of batch queries or perhaps even just one
particularly large batch query. That is when a bunch of, a
large number of individuals were queried at the same time under
the same rationale, relating to a potential cybersecurity
threat.
That, it is still hard to quite figure out the math and how
they got to 2.9 million with that. The argument for why the
queries have come down is because there has been an effort to
put more oversight in place. That there has been a lot more
attention.
Mr. Cline. More sunlight.
Ms. Goitein. Exactly.
Mr. Cline. More, more eyes on.
Ms. Goitein. There has been a lot more attention paid.
Certainly, the reauthorization was coming up and, so, we saw a
decrease. I just want to remind you that this last number,
9,000, that is the number of known and counted queries. We
don't know the actual total number.
Mr. Cline. All right. Let me go to Mr. Schaerr and talk
about RISAA. When we passed RISAA what would you say were the
most important reforms that RISAA implemented?
Mr. Schaerr. Certainly, one of the most important was the
provision allowing the Chairs of relevant Committees in this
body and in the Senate to be present in FISC proceedings, and
to be able to understand what is happening in that body.
I don't know how you provide oversight to an institution
like that unless you can at least attend its proceedings once
in a while.
Mr. Cline. We are all cleared.
Mr. Schaerr. Right.
Mr. Cline. Would it be problematic to say ``or the designee
of the Chair on the Committee''?
Mr. Schaerr. That would be a wonderful addition.
Mr. Cline. Help us spread the burden, wouldn't you say?
Mr. Schaerr. Yes.
Mr. Cline. All right.
Mr. Schaerr. The accountability.
Mr. Cline. It is a small room, but there are many of us on
this Committee who would be willing to go down there and spend
some time there.
Mr. Schaerr. Yes.
Mr. Cline. Let me just say, a reporting requirement of
RISAA, DOJ OIG would release the report which found that the
reforms implemented have ``significantly reduced the number of
noncompliant queries identified.''
Now, what further reforms? To reduce this number of
noncompliant queries down to zero is a warrant requirement
necessary?
Mr. Schaerr. I think so. Even with a warrant there will
still be some mistakes made by the courts. The number is going
to go down very substantially if you have an independent judge
looking at these requests.
Mr. Cline. Thank you. I yield back.
Chair Jordan. The gentleman yields back. I believe the law
says we can designate a staff person to go, yes. We should try
to work on making sure it could be a Member. Mr. Cline would be
great because he sits on this Committee and also the Intel
Committee. That would be ideal. If I could really quick, before
I recognize the gentlelady from Vermont.
What do we think the number is? If it is not 9,000 and we
think they have got this other route that they are taking, what
do we think the number is? Anyone hazard a guess?
Mr. Tolman. The number is very close to what it has been
historically. They eliminated the girlfriend searches and
things like that. I believe it is a product of identification.
Chair Jordan. Still way high.
Mr. Tolman. It's way, way up there. They have changed the
way that they--
Chair Jordan. Because the impression that was given is it
was two hundred and some thousand, or a hundred, I get that it
is some hundreds of thousands. Now they are pounding their
chests, like, oh, we got it down to 9,000. Nine thousand is
still a concern, but we think it is much higher. Is that fair
to say?
Mr. Tolman. Probably.
Mr. Czerniawski. Yes.
Chair Jordan. Is Mr. Tolman right that it is probably where
it was?
Mr. Czerniawski. Yes.
Ms. Goitein. I would hesitate to say simply because if it
turns out that this is not the case, it doesn't change my
opinion in terms of whether or not we should have a warrant.
Chair Jordan. I don't think it says any number.
Ms. Goitein. I don't want to set some bar that if they go
below it, suddenly everything is OK.
I do want to mention that this system, System 1, or the
advanced filter function, that is one instance we know where
the FBI basically decided that something wasn't a query and
that it was instead a filter.
Chair Jordan. Yes.
Ms. Goitein. An important question for you all to ask is
whether there are other such ways that they are obtaining U.S.
person information--
Chairman Jordan. Yes. I know it is.
Ms. Goitein. --that they consider to be a filter, or a
sorting rather than a query. Because if that were true, the
number could be even higher.
Chair Jordan. I apologize--
Mr. Tolman. Mr. Chair, when the FBI was being criticized
that violent crime was on the rise, they changed the way they
collected violent crime data.
Chair Jordan. Good point. Very good point. Good point. I am
sorry. I recognize the gentlelady from Vermont.
Ms. Balint. Thank you, Mr. Chair. Thank you to all the
witnesses for your time. Ms. Goitein, thank you so much for
being here. I want to break this down in simple terms of the
millions and millions of Americans who have never heard of
FISA, who, who have no idea when we talk about the Foreign
Intelligence Surveillance Act what we are talking about.
If you will indulge me, I would like to walk through it
piece by piece.
When we talk about communications data we are talking about
texts, we are talking about emails, phone numbers, DMs, that
kind of thing; is that right?
Ms. Goitein. Sort of any, it is actually any information
that can be acquired under Section 702, any foreign
intelligence information of any kind. It could include other
types of data.
The focus tends to be on communications because
communications are some of the most private sort of information
that we have in exchange.
Ms. Balint. Section 702 allows the Government to take huge
sets of data from companies like Verizon, or T-Mobile as part
of its stated mission of trying to track down terrorists and
other security threats.
Ms. Goitein. No, that is actually there are sort of two
separate issues there.
One is sort of this data broker loophole by which the
Government buys data under no statutory authority whatsoever.
Right? That is not under FISA, it is not under Section 702, it
is just they do it because they think they can, because they
decided they can. We are trying to change, right?
Ms. Balint. That is important. That is a really important
distinction.
Ms. Goitein. Yes. Yes, 702 there is a target. They are
collecting information concerning that target. They are
collecting the target's communications data on the target.
The issue, of course, is the foreign target doesn't have to
be suspected of any wrongdoing. All of that foreign target's
communications with Americans, would be swept up as well.
That data may also include Americans' personal, private
information, right? There is a large amount, and the PCLOB used
that word. We don't have an estimate. Government refuses to
give us one. There is a large amount of Americans' personal
data, information, and communications.
Ms. Balint. I know this is something that the Vermonters
care deeply about who is protecting their personal private
information. I am sure that is true for many of us on this
Committee.
OK, now here is the rub, right, essentially there is this
huge secret database containing all kinds of information on
Americans, and non-Americans as you said. The Government says
it can search that database without a warrant. That is what
they are claiming. Is that right?
Ms. Goitein. Yes.
Ms. Balint. Let's say my emails were caught up in one of
these data sets, landed in the database. Could the FBI search
the database for Becca Balint and access those emails without a
warrant?
Ms. Goitein. Yes.
Ms. Balint. This is what we have been referring to today as
kind of a backdoor search; is that, is that correct?
Ms. Goitein. Yes.
Ms. Balint. Has Section 702 ever been used to spy on a
Member of Congress? In other words, has the Government used a
backdoor search to find data on elected officials?
Ms. Goitein. The Government has run backdoor searches on
the Members of Congress. We don't know whether any data was
returned or whether they used that data. They have attempted to
find and use data of the Members of Congress.
Ms. Balint. Obviously, deeply concerning these backdoor
searches, deeply concerning.
Who is vulnerable? Are regular people vulnerable? This is
the thing that I want Americans outside of this Committee,
outside of Congress to understand. Is anyone vulnerable to
this?
Ms. Goitein. If you communicate with foreigners overseas,
you are vulnerable.
Ms. Balint. If you communicate with foreigners overseas,
you are vulnerable to this backdoor search?
Ms. Goitein. Yes. The Government has to have a foreign
intelligence purpose for the Section 702 program. Foreign
intelligence is defined so broadly--
Ms. Balint. Yes.
Ms. Goitein. --that it can include information that simply
relates to the U.S. conduct of foreign affairs.
Ms. Balint. Essentially, any person with an email account
or a cell phone could potentially be a target of Government
surveillance by our Government, and there is no requirement
that the Government get an actual warrant to spy on our
personal communications. Is that what we are trying to get at
here?
Ms. Goitein. Yes. The Government would say that you are not
a target because the target was a foreigner overseas. Of
course, if they are then looking for and using your
information, that kind of feels like targeting to me. It
becomes a bit of a semantic sleight of hand.
Ms. Balint. I agree. What would happen if we just let
Section 702 expire?
Ms. Goitein. I would be concerned about that for a couple
of reasons.
Ms. Balint. OK.
Ms. Goitein. I would be concerned, first, that the
Government would try, go ahead and obtain the same information
in other ways that actually come with less oversight. Whether
it is buying up data from data brokers, whether it is other
forms of surveillance under Executive Order 12333. There are
even fewer protections for Americans' privacy and civil
liberties in those contexts than under Section 702.
Also, I would point out that the Government actually has
made a case that Section 702 is valuable for national security
insofar as it permits the collection of foreigners'
communications. The foreigners' communications that have been
obtained have been shown to have national security value.
What the Government hasn't shown is evidence that
warrantless searches for Americans' communications have had any
significant national security value.
Ms. Balint. I appreciate it. I see that my time has
expired. I just want to say, one of the things that I try to do
on this Committee is try to break it down for people outside of
these halls, these powerful halls of Congress, to explain why
it is that we do the work that we do.
Again, I appreciate all your time. I yield back.
Chair Jordan. The gentlelady yields back.
You did break it down. Everyone is in there. They can't
police themselves. Much so that they actually searched the
Members of Congress, individuals in the body responsible for
setting their budget. If that is not a problem, I don't know
what it is.
The gentleman from Alabama is recognized.
Mr. Moore. Thank you, Mr. Chair. Mr. Schaerr, what is the
purpose of Woods Procedures?
Mr. Schaerr. As I understand it, the Woods Procedures are
an internal mechanism in the Justice Department and the FBI to
try to be sure that there is adequate vetting before a warrant
application is filed in the FISA Court.
Mr. Moore. Do you think the Woods Procedures should be
codified, given that the FBI is going to follow their own
procedures?
Mr. Schaerr. I am not sure codifying would be that useful.
Much more useful would be to adopt a kind of amicus
participation position mechanism that we have discussed
earlier.
Mr. Moore. What other kind of procedure is in place to
protect against malign use of the FISA? What? What would you
recommend? You mentioned the amicus. Are there other procedures
in place that should be protecting American citizens?
Mr. Schaerr. With respect to the Title, Title 1 process,
the amicus provision that we have discussed is the most useful.
If we look at FISA more broadly and include Section 702,
then the other three reforms that we have discussed here today
would be, would be extremely important. A general warrant
requirement before, before the FBI can search the
communications of Americans, for one thing.
Tightening up the Electronic Communications Service
Provider definition that was, unfortunately, broadened in the
last version of the reauthorization, tightening that up so that
it excludes, really that it excludes any entities other than
data centers, which apparently is what the FBI was trying to
ensure that they could get at there.
There is just no reason to basically dragoon churches and
small businesses into conducting surveillance on behalf of the
NSA and the FBI.
Then, closing the data broker loophole so that if the
Government wants to buy data from data brokers that contains
lots of personal data about individuals, before they can search
that data they have to get a warrant to do that, just like we
are proposing that they have to get a warrant to search the 702
database.
Mr. Moore. I am going to change gears on you for a minute,
Mr. Schaerr. You represented Carter Page in his lawsuits
against the FBI; correct?
Mr. Schaerr. Correct.
Mr. Moore. During Crossfire Hurricane investigation Mr.
Page actually reached out to the FBI and offered to be
intermediary; is that correct?
Mr. Schaerr. Offered to help them, yes.
Mr. Moore. Yes.
Mr. Schaerr. Yes.
Mr. Moore. Why did he reach out to the FBI, I guess would
be the first question.
Mr. Schaerr. Well, he was already helping the CIA with
concerns that they had about things going on in Russia. When he
learned that there was an FBI interest, he felt like maybe I
can be helpful to the FBI as well.
Mr. Moore. Why do you think they turned down the
opportunity to interview Mr. Page?
Mr. Schaerr. Well, the independent investigation of that
showed that the FBI was, or elements of the Justice Department
were trying to investigate the incoming administration. They
were trying to create the appearance of a tie between the
incoming administration and Russia.
Carter Page was the one staffer who had some well-
established contacts in Russia. They chose to focus on him.
Mr. Moore. Was that part of the reason they went after
General Flynn, too, do you think, the whole Russian collusion
narrative was part of that? Or was that a separate
investigation on its own?
Mr. Schaerr. It was closely related.
Mr. Moore. OK, thank you. Mr. Holman, I mean Mr. Tolman, I
am going to hit really quick with you. What type of information
does law enforcement agencies, what are they purchasing from
data brokers and what are they using it for?
Mr. Tolman. Well, as you know, there is so much data that
is collected from outside the government that there is really
no limit to what they can purchase that can be obtained through
online use, emails, other data points, and financial
institutions.
There really, if you think about it could be in worst form,
the ability to collect everything that they can't collect under
a warrant, without a warrant.
Mr. Moore. Very dangerous I would assume.
Mr. Tolman. Correct.
Mr. Moore. For personal privacy and, certainly, for our
amendments to protect those privacies.
In 2023, the FBI admitted to buying precise geolocation
data grabbed from mobile phone advertising. What should
Congress do about this?
Mr. Tolman. I became aware of individuals, for example,
that travel to Washington, DC, were not traveling on January
6th to the rally, were not entering the Capitol, they simply
were traveling. All their location was obtained. No warrant.
Congress has to recognize that any thought that internal
regulation is going to control the use of power by the FBI is
going to fail.
Mr. Moore. Does that get back to the fox guarding the
henhouse referred to earlier?
Mr. Tolman. That is correct.
Mr. Moore. Thank you. Mr. Chair, I am running out of time,
so I will yield back. Thank you. Thank you.
Chair Jordan. Yes, not only their location, but they also
got their bank records, and they got what they bought. They
overlaid that if they banked at the Bank of America. They
overlaid that with if they ever purchased a firearm.
So, well, well said. The gentleman from Illinois is
recognized.
Mr. Garcia. Thank you, Chair Jordan. This hearing--Oh wait.
Give me just one second.
Chair Jordan. Sure.
Mr. Garcia. I apologize. You guys have been going for 2\1/
2\ hours. If any of you need a break, make sure, we will give
you a break and we will keep going. I just thought of that
because I just took a break.
Chair Jordan. The gentleman is recognized. You get your
full time.
Mr. Garcia. Thank you, Chair Jordan.
This hearing, of course, marks the start of negotiations
over the reauthorization of FISA Section 702. At a time when
our civil liberties are under assault, and the public lacks
trust in government, the stakes could not be higher.
As my colleagues and witnesses have pointed out, Section
702 has been repeatedly abused under both Republican and
Democratic administrations. It has become a tool of mass
domestic surveillance, and an end run around Fourth Amendment
as well.
It should be clear by now that we cannot trust the
Executive Branch to regulate itself. This is a crucial
amendment for Congress to assert itself and its constitutional
authority to protect our constituents from warrantless spying.
It is clear to me, and it is not clear to me that Section
702 can ever be reformed to the point where it doesn't threaten
our constitutional rights. If Congress is going to reauthorize
it, then we must insist on major changes.
That means requiring a warrant for U.S. person searches;
closing the data broker loophole; reforming the FISA Court;
narrowing the ECSP definition; and requiring more transparency
and oversight.
It also means getting rid of the immigrant vetting
provision that was included in RISAA. This overbroad law
requires Section 702 querying procedures to ``enable the
vetting of all non-U.S. citizen persons who are being processed
for travel to the United States.''
This is a major separation--expansion, rather, of
government surveillance powers. Instead of targeted
surveillance aimed at specific national security risks, the
intelligence agencies will now surveil over 10 million people,
non-U.S. citizens entering the country without suspicion.
This will also affect the privacy of Americans whose
communications will be accessed at much higher rates, and
subject to further abuse by agencies that have shown complete
disregard for our civil liberties.
It is not just progressive Democrats who oppose this
provision. Chair Jordan opposed it and spoke against it on the
House floor, highlighting that it would ``authorize the
surveillance of a whole new category of individuals.''
Ultimately, 80 Republicans voted against it.
Ms. Goitein, thank you for being here today. Can you speak
to the potential harms of the immigrant vetting provision and
the significance of the bipartisan opposition to it?
Ms. Goitein. Sure. Ordinarily, to conduct a query the rules
of the agencies require them to reasonably believe that the
query will yield foreign intelligence. That is a very low bar,
given how broad the definition of foreign intelligence is.
Yet, despite how low the bar is, unfortunately, a provision
that was adopted last year in RISAA and, as you mentioned, the
Chair opposed it, most people in this room opposed it, but it
was still adopted. That allows in some ways, it basically
requires agencies to have procedures in place that permit
suspicionless queries for people who are seeking to travel to
the United States, whether it is as a tourist, or whether it is
on a work visa, a student visa, or whatever the case may be.
Even if none of the many vetting mechanisms that the
government already uses has turned out to be any reason to
worry about these individuals. This is completely unnecessary.
People should be able to travel to this country, to study and
work in this country without turning over their personal
communications to be read by the government.
There are plenty of vetting mechanisms in place to ensure
that they don't pose a threat to national security. There is an
impact on Americans' privacy and on U.S. persons' privacy as
well, partly because these are totally suspicionless searches.
To the extent that these queries return communications that
include Americans as participants, these are very likely to be
completely innocuous conversations with no foreign intelligence
in them. That is an intrusion on these Americans' privacy.
Also, as we have already seen, there have been significant
compliance problems with this travel vetting provision.
Including multiple queries of U.S. persons under this
authority.
Mr. Garcia. Thank you so much. You are underscoring that
this is not a partisan issue. Of course, I look forward to
working with Chair Jordan and the other Members in other
parties to ensure that this provision is not included in the
reauthorization of Section 702.
I thank you. I yield back, Mr. Chair.
Chair Jordan. The gentleman yields back. The gentleman from
New Jersey is recognized.
Mr. Van Drew. Thank you, Chair. Hey, it is good to see
because especially in a Committee where we debate a lot, we
argue a lot, we have different viewpoints on, quite frankly,
just about everything, that we are on, by and large, all of us
on the same page with this. It is heartening and it is good.
The FISA, the misuse of FISA was truly, I believe, one of
the low points of our republic. What happened, invading
people's personal lives, if there is anything--and you all know
this, you are smart--historically that this country, what this
republic was supposed to stand for was that individual freedom
and individual rights, and not to have the government, because
of political reasons, or social reasons, or religious, for any
reason, invade our privacy, invade our family, and invade our
lives.
We had hearings, as you all know. We were all here. Most of
us were here at the time. Really dug deep. I want to thank the
Chair as well, he never gives up. We are going to get this
done.
We had hearings and there was some disagreement. Not so
much within this, among us, but more the disagreement was with
other Committees and other individuals in Congress.
So, here is my question. This is what I want to get down
to. Good legislation, was an improvement, was a compromise,
that is all wonderful. We want to still do better.
If you could, and we will start with Mr. Tolman, just go
down the line relatively briefly, what has worked well? Where
have we done a good job?
By the way, if you think we haven't done a good job
anywhere, you can say that. Nobody is going to get mad. Where
are we vulnerable? Where do we still have problems? Where do
you worry at night that we are going to use our precious
freedom? Mr. Tolman?
Mr. Tolman. The first thing that comes to mind that you did
well is that you won the public debate on this issue. It used
to be very siloed, limited voices that were shouting this is a
concern, and it is going to violate citizens' rights, and they
are going to abuse it. It was not believed. The public was not
aware.
This body, and I give this House the credit, not the
Senate, I give this body, this Chair, and others that turned
the tide in the public debate on this and the awareness. That,
to me, is the battle.
I would say the thing that keeps me up at night is this: I
would like our FBI to get back to finding bank robbers and less
intelligence gathering. Until that happens, we will always need
robust guidelines to reign them in.
Mr. Schaerr. Thank you for the question.
We have discussed earlier four specific reforms that all of
us agree with that need to be made. One of those is fixing
something that happened with RISAA, which is the overexpansion
of the definition of electronic service provider, which was
expanded so much that it now includes many small businesses,
and even churches and other institutions. That needs to be
pared back and limited to its original purpose, which is to
allow the FBI to reach data centers.
That is one important reform. We also talked about closing
the backdoor search loophole in FISA that allow the government
to search Americans' information, and some of their most
private information without a warrant.
We have also talked about closing the so-called data broker
loophole which allows Government agencies to essentially buy
their way around the Fourth Amendment just by buying data from
data brokers.
Then, there's a real need still. There were some useful
reforms made in RISAA to the oversight of the Foreign
Intelligence Surveillance Court. There is an additional
important reform that we believe needs to be made, which is to
expand the amicus program within that court so that independent
privacy experts are brought in sensitive cases to advise the
court and act as kind of a counterweight to the FBI and the DOJ
who, when they try to seek warrants, to have somebody else in
the room who has a responsibility for protecting Americans'
privacy generally, to ensure that the FISA Court does that.
Mr. Van Drew. Thank you. I only between the two of you have
17 seconds. If you can really just.
Mr. Czerniawski. Sure. I will be really brief.
Second, everything that has been said. That this is
critical to continue the conversation because, as I mentioned
in my opening statement, this is a crisis in faith in the
government, in a key agency and agencies that are responsible
for protecting us. That is why if we get these reforms done
that can go a long way toward fixing that problem.
Ms. Goitein. There were some helpful reforms in RISAA. The
main problem is it just didn't go far enough. It didn't go far
enough because there wasn't a warrant requirement.
There are a couple places where RICA--RISAA took some steps
backward. That includes the ECSP provision.
It also includes a couple of provisions that actually
weaken amici that we haven't talked about yet. Maybe we can
talk about them later. That is, yes, that.
Mr. Van Drew. In plain vernacular, though, the FBI still
needs a makeover, it still needs. We can't give up on this.
Mr. Chair, I know I am over. Just for a second, I love old
mystery shows, old mysteries. I was watching an old mystery. It
dates back to the 1940's, and they are talking to the FBI and
how they overreached and were punishing somebody because they
disagreed with something they did.
I was sitting with a friend of mine and said, ``God, that
would never happen.'' He said, ``Boy, are you wrong.'' That
show was right.
Thank you. I yield back.
Chair Jordan. To the gentleman's point, I said this
earlier, I do believe it is accurate to say of the $12 billion
budget that the FBI has, over half that budget is spent on
surveillance or surveillance-like activities.
I believe over half the personnel, to Mr. Tolman's point,
you want them to go after the bad, the bank robbers, and the
drug dealer, those kind of folks, versus what seems to be the
focus the last several years.
The gentleman from Florida, the new Ranking Member is
recognized.
Mr. Moskowitz. Thank you, Mr. Chair.
Mr. Knott. Will the gentleman yield?
Mr. Moskowitz. For a second. Sure.
Mr. Knott. I was kidding. Go ahead.
Mr. Moskowitz. Oh. I was really interested in what was
about to happen. You fooled me, too, Brad.
Well, I was going to say, Mr. Chair, thank you. I sit at
the end of the dais. I am the last Democrat here. Many
questions and comments have already been made on this important
topic which is FISA. I am absolutely for FISA reform.
Mr. Chair, when I think about FISA, what I really think
about? I think about affordability and the hopes of
affordability, OK. Because, perhaps someone should tell the
President that every time he says ``affordability is a hoax,''
another Democrat spouts of the ground and lands in the House of
Representatives. Eventually we will get a gavel.
If he doesn't like saying ``affordability,'' that is fine.
We can come up with another word. If he doesn't want to say
that things are unaffordable, we could just say things are
expensive. We could agree to just say that instead. We could
just say things are expensive instead of unaffordable.
I really want to talk to the person who puts the words into
the teleprompter. Because this is like a Ron Burgundy
situation. Every time he says ``affordability is a hoax,'' it--
Mr. Van Drew. Will the gentleman yield?
Mr. Moskowitz. In a second. Let me do this and then I will
yield.
Every time he says ``affordability is a hoax,'' it is like
saying, ``Go F-- yourself, San Diego,'' OK? Is it San Diago?
Scholars say the translation was lost long ago.
There is just no partisanship on the grocery store bill. I
know what you are saying, Jared. Be honest. Tell the other side
of the coin.
OK, gasoline prices are down. Right? See, I am being fair.
Gasoline prices are down. That is great. Getting energy prices
down is important.
They are not as down as much as he is projecting. The
problem is you can't eat gasoline, right? Can't eat gasoline
unless, of course, Kennedy proposed that as some sort of way to
get rid of COVID. OK?
What I would say is that even though we all subscribe to
our own set of facts these days, we do the only thing that
still is a constant is that 2 + 2 = 4, for now. OK.
When you go to the grocery store and you get the bill,
there is no partisanship on the bill. There is no partisanship
on that bill, it is just prices.
You can go to all the stadiums you want. You can fill all
the stadiums you want. You can talk about this being a hoax all
you want. As long as people are paying double and triple for
groceries, rent, health insurance, home insurance,
transportation, and car payments, that won't work. OK.
You are going to say, Jared, how do you know it won't work?
We tried it. We tried it for a whole year during the election.
The economy is great. The stock market is great. We tried to
tell people how to feel. It didn't work.
In the weirdest plot twist ever, I can't believe Trump is
copying your favorite President Joe Biden. I feel like any
moment Trump is just going to be Trumpeconomics is great.
It is just wild. I feel like Howard Lutnick is about to
come on television and talk about how crudites prices are
coming down. Right?
Let me just say this is why I believe in FISA reform, OK.
Now, I will yield to your question.
Mr. Van Drew. Well, you almost started to answer for me, so
I love you, man, you are a great guy. Great Congressman. That
doesn't have a damn thing to do with what we are talking about
today.
Mr. Moskowitz. I know, but 50--
Mr. Van Drew. Let me just finish.
Mr. Moskowitz. Fifty people already spoke and asked all the
questions and comments.
Mr. Van Drew. I know. The subject matter today is really,
really important. I get it. I get the politics. I get the
affordability. We can have that argument.
Mr. Moskowitz. No, well, affordability is probably slightly
more important.
Mr. Van Drew. This is people's personal freedom. Let me
tell you, people died multiple times, in many wars right back
to the Revolutionary War, so people could believe what they
want to believe, say what they want to say, believe in a god
that they want to believe in.
Mr. Moskowitz. Reclaiming my time quickly, and then I will
yield back.
Listen, don't get me wrong, the Revolutionary War is very
important. Most Americans care about what they are paying for
goods today rather than what happened during the Revolutionary
War.
Mr. Van Drew. If the gentleman would yield again?
Mr. Moskowitz. Yes, I will yield back.
Mr. Van Drew. They do. They also care about the--they care
if their daughter, or son, or brother, or sister is being
surveilled, if they are losing their freedom, if the judicial
system is going out to hurt them because they believe something
different.
Mr. Moskowitz. Reclaiming my time quickly.
Mr. Van Drew. It is a big deal. That matters. That is what
we should be doing today.
Mr. Moskowitz. Yes, reclaiming my time. I know they do care
about that. If they can't pay their rent and they can't feed
their family, the rest of it is less important.
That is why I brought up affordability. Because, quite
frankly, it is not a hoax. It is a real thing, just like FISA
is. We are just not having hearings on that. I am still waiting
for Pam Bondi to come back.
We have got a week left but--Oh, the Chair has got
something on?
Chair Jordan. No. I was just--
Mr. Moskowitz. Oh, I didn't know if you had an
announcement. I yield back, Mr. Chair.
Chair Jordan. No, I was going to cut you off, but not until
you had your full five minutes.
Mr. Moskowitz. I appreciate my position on the Committee.
Chair Jordan. Yes. Ms. Bondi is coming. She was scheduled
and then we had this 43-day, month-and-a-half shutdown by the
Democrats, so she wasn't able to be here.
Mr. Moskowitz. Oh, then the Speaker furloughed us 55 days.
I had never been furloughed before, by the way.
Chair Jordan. We will have her. The gentlelady from Wyoming
is recognized.
Ms. Hagerman. Classy Democrat ploy, deflect attention from
every single thing that he described about affordability being
caused by their policies, and then turning it around and
attempting to blame us for the problems that they created with
the housing, the increase in housing costs, and the increasing
food costs.
We are fixing those things, the policies that they
implemented. I have every expectation that we will see a
decline in some of those prices next year.
I actually want to talk about why we are here today because
it is a very important hearing.
I have long been a proponent for including sunsets in
government programs and authorities. I believe we commit
legislative malpractice in a lot of the things that we do when
we don't include sunsets. I hold this principle to be
especially true when dealing with technology and technological
advances. We always seem to move much more faster than
government. We could evolve when we are drafting our bills.
The FISA is a perfect example of this issue since its
creation in 1978. The scope of FISA authorities has continually
grown, as has its abuses. As the intelligence agencies we
oversee push their surveillance abilities beyond the statutory
allowances, that issue today is compounded by new technologies
and the commercial availability of data. Today we, as
legislators, face two unique challenges:
First, reforming Section 702 to correct past abuses, which
for some appears to be a controversial exercise even of itself,
although I don't see that as to why it should be controversial.
Second, we also need to update Federal laws and protections
to account for the pace of technological advancement.
Here we are, we are actually talking about working on
reforms with a chance to vote on those reforms in 2026 for the
second time in my two terms in Congress, which I think is a
really good deal. Why? Because Congress was wise enough to
sense that these important authorities to aid in our ability to
consistently review them.
Mr. Czerniawski, technological advancement and the private
sector always seem to move faster than the government. Does
maintaining these two-year reauthorizations of Section 702
provide a better chance for us to keep up with the pace of
those changes, and also to address any violations that we may
see?
Mr. Czerniawski. Thank you for the question,
Representative.
That sunsets on a shorter timeframe are an amazing tool for
you and this Committee, more broadly speaking, to assert its
authority and its oversight function over these critical
agencies. We want them to be able to go and do their national
security mission to keep this country safe.
At the same time, as you documented and as these witnesses
documented, there is a litany of abuses that FISA has enabled.
What better way to make sure that is on decline if not,
hopefully, ideally, eliminated them by having these shorter
reauthorization periods.
Ms. Hagerman. I have been an advocate for the warrant
requirement and some of the other changes that we have made,
some of the other modernization, and the safeguards that we
have put in place.
You have been asked an awful lot of questions today. What I
would like each of you briefly to do is to describe for me, for
us, if you see any other reforms that we should be making when
we revisit this in April of next year.
Mr. Tolman, starting with you, have we touched on all your
proposed changes or do you have additional ideas that you would
like us to consider?
Mr. Tolman. With respect to 702, we have addressed them.
With the FBI, we have work to do. Shifting their mission
back to interdiction of drug and violent crime should be their
central focus, and not the gathering of intelligence. Until
then, we will see abuses that we have to reign in.
Ms. Hagerman. Just very quickly. I don't know if you are
aware, but at the beginning of the 118th Congress when we were
doing the Select Committee on Weaponization of the Federal
Government we had a former FBI agent who came and testified. He
talked about how the mission had been shifted after 9/11. You
touched on that briefly today as well.
I agree with you. We need to get back to a pre-9/11
mentality with regard to the FBI. It is important and I
appreciate your advice in that regard. Mr. Schaerr?
Mr. Schaerr. Thank you for the question. If I could add one
thing to the four specific reforms that I mentioned earlier, I
would add the NDO Fairness Act, which I know this Committee has
already passed and reported out.
Perhaps that could be attached as part of the 702
reauthorization bill, because it is certainly closely related
to the items in that bill. I would suggest adding that.
Ms. Hagerman. Thank you. Mr. Czerniawski?
Mr. Czerniawski. Yes. I would second Mr. Schaerr's point
about adding the NDO Fairness Act into that, and everything
else, the four core ones that we mentioned, too.
Mr. Hagerman. Thank you. Ms. Goitein?
Ms. Goitein. If there is one thing I would add to those
four things, which I agree with, it would be closing the
backdoor search loophole for Executive Order 12333 collection.
Mr. Hagerman. OK. Thank you. I appreciate it. With that, I
yield back.
Chair Jordan. The gentlelady yields back.
If the gentleman from South Carolina, we are going to just
flip. Because Mr. Grothman has to go, we will go with Mr.
Grothman, and then we will come right to you, Mr. Fry.
Mr. Grothman is recognized.
Mr. Grothman. Thank you.
Mr. Schaerr, when the FBI asks for, asks the FISA Court for
a Title I warrant to surveil someone in a politically sensitive
case, let's say a Member of Congress, an employee of a
Presidential campaign--this actually happened to President
Trump--this all takes place in a secret proceeding, right?
Mr. Schaerr. Correct.
Mr. Grothman. Generally speaking, is there anyone in the
proceeding advocating for privacy rights in the Constitution?
Mr. Schaerr. No. Currently there is not and that is a big
problem.
That was a process which if it had been in place during the
Carter Page investigation would have prevented the shenanigans
that happened there. In fact, it could well have deterred the
FBI and the Justice Department from even seeking that warrant
at all.
Mr. Grothman. Can you give us a suggestion on what to do
about it?
Mr. Schaerr. Yes. The best solution is to adopt something
along the lines of the Lee-Leahy reform that was adopted by the
Senate about four years ago by a vote of 77-20, or something
like that. What that reform would do is ensure that there is,
in particularly sensitive investigations, that there is an
amicus in the room and as part of the process when the FISC
considers granting a warrant in those kinds of cases.
It would be somebody who is trained in privacy, somebody
who has a full security clearance and can serve as a check, a
counterweight if you will, to the Justice Department lawyers
who, of course, will be seeking the warrant, but somebody who
can be there and knows enough about the process to be able to
help the FISC judges ask the right kinds of questions to be
sure that there aren't any shenanigans going on.
Mr. Grothman. OK. You have spoken about the data broker
loophole where Federal agencies, ranging from FBI, the IRS, buy
geolocation, internet search, purchase history, and other
sensitive information about Americans, all without a warrant or
any reason to believe most of these people have done anything
wrong.
As we consider Section 702, a surveillance authority that
has been repeatedly abused by the FBI, why is it important to
also look at other Government practices like data purchases
that violate Americans' constitutional privacy rights?
Mr. Schaerr. Well, thank you. Thank you for that question.
You are absolutely right that purchasing data can be an
effective way, currently, for agencies to do an end run about
the Fourth--around the Fourth Amendment. They shouldn't be
allowed to do that.
Whether or not they are allowed to purchase the data, they
shouldn't be allowed to use it to surveil Americans without
going through the same warrant process that we have been
talking about with respect to the Section 702 database.
Mr. Grothman. Are there any procedures in place now to
protect against the malignant use of FISA?
Mr. Schaerr. From the malignant use of FISA?
Mr. Grothman. Malignant use of FISA, yes.
Mr. Schaerr. Well, there are some procedures in place, and
some that were enacted by this body a couple of years ago that
are useful and important. There are a number of others that
need to be added like the warrant requirement for backdoor
searches.
Mr. Grothman. Are there any consequences for FBI agents
that conduct improper searches?
Mr. Schaerr. I understand there are potentially some
administrative consequences that they can lose their security
clearances if they are found to have violated the department's
own rules.
Mr. Grothman. Have they ever been used?
Mr. Schaerr. Not that I know of.
Mr. Grothman. OK. How did the FBI allow such a profound
breakdown in internal communication and verification processes,
investigators failed to properly report Carter Page's status as
an operational contact, information they already possessed,
ultimately enabling an attorney to alter communication and
result in nearly a year of unlawful surveillance?
Mr. Schaerr. Well, the independent counsels who
investigated that whole sordid history, concluded that it was
not just an innocent mistake.
Mr. Grothman. OK. Mr. Tolman, we will try to get you a
quick question at the end.
There are reports indicating that some agencies are
spending tens of millions of dollars on multiyear contracts to
purchase sensitive data on American citizens. Can you elaborate
what problems this poses?
Mr. Tolman. Well, first and foremost, if the internal
guidelines to help prevent abuse become effective, the FBI's
response is to not stop wanting to get that information.
Instead, they've pushed it out to purchase that information,
and it's the tip of the iceberg. If they expand that program,
there's no end to what they can get without a warrant.
Mr. Grothman. OK. Thank you very much.
Chair Jordan. The gentleman yields back. We have about 20
more minutes. If that's good, we will just keep on moving. Oh,
does someone need a break?
Ms. Goitein. Ideally. Two minutes.
Chair Jordan. I understand. We will take a--you can take a
break.
Ms. Goitein. OK.
Chair Jordan. If your questions are going to the
gentlelady, we will hold. If not, we will let you, Mr. Fry,
continue with the three remaining witnesses.
Mr. Fry. We will move around. We have got a lot of
questions.
Chair Jordan. All right. All right.
Mr. Fry. Thank you, Mr. Chair.
Mr. Schaerr, would you agree that the Woods Procedures
serve as a good-faith oversight safeguard and that obstructing
them in any way removes and undermines public trust in the FISA
process?
Mr. Schaerr. I'm not proposing that they be removed or
obstructed. If they work properly, then they serve a useful
function, but they're no substitute for Congress' playing its
role in ensuring accountability.
Mr. Fry. Do you agree that they serve as an oversight
safeguard?
Mr. Schaerr. Yes.
Mr. Fry. Violating them by some government official would
undermine public trust in what the government is--
Mr. Schaerr. I'm sorry, I misunderstood your question.
You're right, violating them would undermine the public trust,
I agree.
Mr. Fry. Thank you for that. Mr. Tolman, during Crossfire
Hurricane, FBI attorney Kevin Clinesmith altered an official
document using a FISA application, enabling the government to
illegally surveil Carter Page for 11 months. Clinesmith,
ultimately, received 12 months--only 12 months of probation. Do
you believe that's sufficient punishment for his violation?
Mr. Tolman. It serves as no deterrence. Deterrence is the
predictability of being held accountable, and--
Mr. Fry. That was my next question, too, which was, to the
extent that you didn't think that it was sufficient, would that
be an actual deterrent for other people seeking to violate,
seeking to violate FISA? Are there additional avenues that
exist to hold the FBI accountable in lieu of that?
Mr. Tolman. There really are no avenues. In fact, the
ethics investigations that would be conducted are all handled
in-house. Subsequently, any Solicitor General or Office of
Inspector General that would actually attempt to investigate
it, they're limited, in that they can't themselves bring any
criminal action. I would say there's no current deterrence.
Mr. Fry. How would we increase that deterrence?
Mr. Tolman. Well, certainly not relying on the courts and a
Washington, DC, jury to actually administer accountability.
Mr. Fry. Mr. Tolman, are you saying that Washington, DC,
doesn't have all the answers for the American people?
Mr. Tolman. I think that's exactly right. This is why
Congress is so important right now.
[Laughter.]
Mr. Fry. Thank you for that. I wholeheartedly agree.
Mr. Schaerr, back to you. In 2019, the U.S. Court of
Appeals for the 2nd Circuit raised concerns about Section 702's
ability to enable broad queries of Americans' communication.
The Court, essentially, held that law enforcement cannot search
people's communications without any suspicion just to see if
something incriminating turns up, which, of course, it would
violate their Fourth Amendment rights.
Is this an example, though, of government fishing for
criminal evidence at the expense of the Constitution and
people's Fourth Amendment rights?
Mr. Schaerr. I think that's a fair characterization.
Mr. Fry. How widespread to you believe this practice is?
Mr. Schaerr. Well, just from the number of queries that are
run, it seems like it's quite widespread, and yet another
reason why it's important to have a warrant requirement before
the 702 databases can be searched.
Mr. Fry. Well, I agree with you there, too. The number of
queries and the amount of people that have access to this is
very alarming as well.
What do you think this also reveals about the culture
within the FBI, that they do this with impunity without regard
to people's constitutional rights and without any reasonable
suspicion that any particular person has engaged in some
criminal activity--unless they just happen to dig it up?
Mr. Schaerr. Well, certainly, the whole Carter Page fiasco
and many of the other examples that we've discussed today are
examples of an investigation culture that seems to have run
amuck, and yet another reason why the Article III branch should
be brought into the mix to exercise some oversight.
Mr. Fry. Thank you for that. I'm going to switch gears just
a little bit to just about government data purchasing.
Obviously, government agencies are using this. In what ways
should Congress look to close these loopholes that allow them
to purchase this data that evades people's Fourth Amendment
liberties?
Mr. Schaerr. Is that to me?
Mr. Fry. Yes, sir.
Mr. Schaerr. Well, whether or not Congress decides to allow
the agencies to purchase the data, how they use it is the key
question. Before the government can search any database,
whether it's the 702 database or a database consisting of data
that has been purchased, there should be a requirement that if
they're looking at sensitive personal data, including people's
communications, that they ought to have to get a warrant to
search it.
Mr. Fry. Thank you for that. Mr. Chair, I see my time has
expired and I yield back.
Chair Jordan. The gentleman yields back. The gentleman from
North Carolina is recognized.
Mr. Knott. Thank you, Mr. Chair. Thank you for holding this
hearing. To the witnesses, we certainly appreciate your
duration, your endurance, and the candid answers that you have
given.
I have got to say that every time we bring this statement
up, it stuns me. We pass a law to surveil foreign threats to
the country, and we abuse it by spying on the United States
citizens that we are tasked to protect. When you boil it down
in that simple term, it is stunning. It is stunning.
Warrantless access is allowed under a trust agreement with
those who are investigating, this comes from someone, myself,
who worked with agents. I worked with law enforcement
professionals all over this country who are very proficient at
investigating. I was proud to do it. I was honored to do it.
I must say that this particular set of the law is entirely
too secretive. It is entirely too bureaucratic. There is
absolutely no disinfectant of the bright lights of a courtroom
that people have access to.
When you look at the kind of the construct, plainly
speaking, with this power, it enables the investigators to
target people, not criminal behavior. That is the inherent
danger that I see here.
When you open up just the documented abuses--again, even
the documented abuses we receive in a report and we trust that
those are all the abuses, right? That is, to me, again, a very
problematic posture.
Some of the abuses include intrusive searches for nefarious
or creepy reasons, right? Personal reasons from bureaucrats who
are nameless and faceless, who have not been fired or punished.
Some of these intrusive searches are for political
motivations. Again, see Carter Page, right? There is no
disinfectant of the bright light.
When I was doing these investigations, we would observe
criminal conduct. We would seek authority to get the
information, and then we would get the warrant. Right? Then,
once the information was in hand, we would go through it to
determine what charges, if any, would come forward.
With that as my basis, let me just ask: Is it a problem
that the information is already in hand before any warrant is
ever needed in the process? Mr. Schaerr?
Mr. Schaerr. It is a problem. It's probably inherent in the
whole Section 702 collection process and in the legitimate need
to engage in surveillance of foreigners. It's a problem that is
easily solved with a warrant requirement.
Mr. Knott. How?
Mr. Schaerr. Before the information can be queried on
individual Americans, then there needs to be a warrant in
place.
Mr. Knott. Well, that is getting to the root of my problem.
Mr. Schaerr. Yes.
Mr. Knott. The ``query'' is a fancy word for ``search.''
Mr. Schaerr. Correct.
Mr. Knott. There is no way to prevent searches in the back
channels of a deep government bureaucracy, correct?
Mr. Schaerr. There may be no way to prevent them, but
there's certainly ways to deter them.
Mr. Knott. Sure, but we are not doing that. Again, you have
a pot of information--
Mr. Schaerr. Yes.
Mr. Knott. --in the back channels of a bureaucracy, and we
are trusting them not to abuse access. Is there a way to
preclude access to that information without a warrant?
Mr. Schaerr. Not that I'm aware of, which is why a warrant
requirement is so important.
Mr. Knott. That's my problem. Yes, that's my problem.
Is there a way to preclude--or is there a way to gauge
whether or not there have been queries, if they want to hide
those queries? ``They'' being the FBI.
Mr. Schaerr. Yes. I'm not sure there's a way to do it.
Mr. Knott. Mr. Tolman?
Mr. Tolman. No. My concern is, if, for example, take the
analogy that the searches are large boxes in an Amazon truck,
right?
Mr. Knott. Right.
Mr. Tolman. If the FBI knows that each box has multiple
individuals in it, my concern is they'll say, ``We're only
going to search this box''--
Mr. Knott. Right.
Mr. Tolman. --where the target actually is--but there's
multiple individuals that deserve protection under the Fourth
Amendment.
Mr. Knott. Right.
Mr. Tolman. We don't get to when they're searching those.
Mr. Knott. Right. You were raising your hand, ma'am?
Ms. Goitein. Yes. You raise an excellent point, which is,
if they collect pretty much everything, any of these back-end
protections, including the requirement to get a warrant, are
going to be imperfect necessarily.
Mr. Knott. Right.
Ms. Goitein. That is a very good reason to limit the
collection on the front end.
Mr. Knott. Yes.
Ms. Goitein. One of the reforms--
Mr. Knott. Just so people know, we would have evidence that
a criminal actor was using his or her cell phone. We would
ascertain the number through investigative means, and then we
would apply for a warrant to get location data, who they were
calling. Then, if need be, the most intrusive search was a
Title III wiretap. We had to bend over backward to demonstrate
the need to get the information that the government right now
is collecting en masse--with no warrant. It is really
astounding to me.
If there is no way to protect against abuse, I wonder what
the solution is? I will turn it over--if you could go down in
sequence, starting with you, ma'am, what are ways that we can
protect that information, in addition to the warrant
requirement?
Ms. Goitein. Well, what I was going to say is that the
initial scope of surveillance right now is too broad. Any
foreigner can be targeted overseas under this broad definition,
extremely broad, of foreign intelligence.
What that means is foreigners who there's no evidence or
reason to believe that they pose any threat to the United
States or their interests, they are subject to surveillance.
What that means for Americans is that the pool of Americans'
communications that can be incidentally collected is enormous.
Mr. Knott. Right. Right.
Ms. Goitein. It's likely to be these innocuous
conversations.
Refining the foreign targets at the front end would be an
enormous protection for Americans. That is something I talk
about in my written testimony.
Mr. Knott. Thank you. Briefly.
Mr. Czerniawski. Yes, I will just say what Liza said;
refining down the scope of surveillance.
Then, I know RISAA already did this with reducing the
number of FBI agents that have access to that database. I would
say exploring how we can and further reduce that number. Chair
Jordan mentioned 10,000 before, like--
Mr. Knott. A shared custody of it.
Mr. Czerniawski. Yes, exactly.
Mr. Knott. Something.
Mr. Czerniawski. Yes.
Mr. Knott. Mr. Schaerr?
Mr. Schaerr. I agree with those comments.
Mr. Tolman. I would say perhaps we established something
like the taint team. You recall how we utilized that, where we
would not allow those access to documents and data that might
be violative. Perhaps there's a layer that could be put in
there that would prevent investigators from actually looking at
the data until they've satisfied those protocols.
Mr. Knott. Mr. Chair, I yield the balance of my time to the
Representative from Texas. Thank you all.
Chair Jordan. The gentleman from Texas is recognized for
five minutes.
Mr. Gill. Thank you, Mr. Chair. Thank you to the witnesses
for taking the time to be here and for your expertise.
I entirely associate myself with the great line of
questioning from my friend, Mr. Knott of North Carolina. I want
to begin and just kind of break this down really quickly on a
basic level. Ms. Goitein, what is the Section 702 database?
Ms. Goitein. It's not a single database per se. Section 702
enables the government to collect the communications of certain
foreign targets, which is pretty much any foreigner, if the
government has a foreign intelligence purpose, and to collect
any information on them, including all their communications,
and that includes communications with Americans. All that gets
fed into various different data systems that different agencies
have.
Mr. Gill. How vast are these data systems? In other words,
what types of information is being collected and about whom?
Ms. Goitein. Right. We have very little public information
about that. In 2011, which I think is the last time this, this
particular statistic was reported, there were 250 million
communications, internet communications, obtained. That was
when there were far fewer targets.
If you extrapolate with the number of targets we have
today, it's about a billion communications, internet
communications, collected every year. Because they reside in
these systems for at least five years, several billion
communications right now in storage, collected under 702.
Mr. Gill. What are these communications? Are these calls,
texts, emails, and location data?
Ms. Goitein. It can be anything and it doesn't have to be
communications. It can be any kind of foreign intelligence
information, or information that qualifies as foreign
intelligence. Actually, it doesn't have to be foreign
intelligence. The government just has to have a foreign
intelligence purpose. It can be any kind of information
imaginable but, definitely, it includes electronic surveillance
which is communications.
Mr. Gill. Got it. Who could be tied up in this database in
terms of American citizens, Members of Congress, everyday
American citizens? Who all could be caught up in this?
Ms. Goitein. Right. There are almost 300,000 foreign
targets, and they do not, as I said before, they don't have to
be suspected of any wrongdoing. Anybody who has the misfortune
of being in communication with someone who has been designated
as one of these targets, their communications will be swept up.
Mr. Gill. We have billions of data points from American
citizens who have never been convicted of a crime?
Ms. Goitein. Well, not all the billions involve Americans.
We don't know what proportion involves Americans because they
won't give us an estimate.
Mr. Gill. We don't know, but a large number?
Ms. Goitein. Presumably, because of the prevalence of
international communications.
Mr. Gill. Presumably, a large number? Where does all this
information sit?
Ms. Goitein. Different databases in different agencies.
Mr. Gill. Uh-hum. That's all within the Federal Government
that various actors have access to?
Ms. Goitein. Yes.
Mr. Gill. Who? Who has access to this information?
Ms. Goitein. Agents who are working on cases. I think it's
a lot. We heard earlier it's basically 10,000 FBI agents. It's
any FBI leaving aside the NSA and the CIA. It's agents in field
offices all around the country.
Mr. Gill. They don't need a warrant to access any of it?
Ms. Goitein. No.
Mr. Gill. OK. What types of protocols or procedures are in
place to help protect privacy of American citizens' data
that's, it sounds like, all within multiple agencies of the
Federal Government?
Ms. Goitein. Right. There have been reforms that were put
in place through last year's reauthorization of Section 702
that required things like attorney approval. The U.S. person
queries, it required people to keep a written justification of
their queries--agents. It requires an audit every 6 months by
the National Security Division of queries. It required
supervisory approval for certain sensitive queries.
It's there, sort of layers on layers of these sort of
internal review or oversight mechanisms. Many of these were in
place well before RISAA codified them, and even after these
internal mechanisms had been adopted, we were still seeing
abuses. We were seeing searches for the communications of a
U.S. Senator, a State Senator, a State court judge who had
contacted the FBI to report civil rights violations by a police
chief. That was after many of these reforms had been adopted.
Have they helped? Probably. Again, we don't have complete
data from this past year. They're not enough.
Mr. Gill. There's millions of--potentially more--bits of
communication information of American citizens sitting in
various government databases that FBI agents have access to
without requiring--obtaining a warrant. That seems like a
pretty egregious violation of the Fourth Amendment, does it
not?
Ms. Goitein. To me, that is a violation right there. Even
if every single query complies with the internal standards and
procedures that have been adopted, it's not probable cause and
a warrant, and therefore, it's a Fourth Amendment problem.
Mr. Gill. Agree. Thank you.
Chair Jordan. The gentleman yields back. The gentleman from
North Carolina is recognized.
Mr. Harris. Thank you, Mr. Chair. I thank all of you for
your time and patience and apologize for being in and out with
three different committees holding hearings and markups all
today.
Listen, as a freshman Member of Congress, as I have had the
opportunity to listen today, I'm delighted to see that this
Committee is united in defending Americans' Fourth Amendment
rights. As we approach FISA reauthorization, I do think it is
important to build on the progress made last Congress in
protecting Americans from unconstitutional searches.
That starts with addressing some of the shortfalls of last
year's reauthorization and the Reforming Intelligence and
Securing America Act, also known as RISAA. Obviously, my
biggest concern is the failure to include a warrant
requirement, which failed as an amendment on the House floor.
However, I understand there were other provisions in the bill
that ought to be addressed.
One concern I have is the expansion of the definition of
electronic communication service providers. I have been a
pastor for 36 years, and I often worry about the ways in which
government can be weaponized against churches and other
religious institutions.
Mr. Schaerr, does the expanded electronic communications
service provider provision in RISAA mean that even churches and
other places of worship could be demanded to facilitate the
warrantless surveillance of their people?
Mr. Schaerr. I believe so. If you look at the requirements
for being considered in ECSP--an ECSP, an electronic
communications service provider, most churches are providing
Wi-Fi service to their parishioners when they come. My church
does; I suspect your church does. They do that using
communications equipment, right? A Wi-Fi router that may be
installed in the ceiling or somewhere else.
They really fit the definition of an ECSP, and therefore,
at any moment, somebody from the FBI could come along and say,
``You have somebody in your congregation that we're suspicious
of and we want you to give us access electronically to
everything that they're doing on their phone when they use your
Wi-Fi service during the service.''
They could force you, as a pastor, to do that. They could
also order you that you can't tell the person about it. Right?
It's they're really dragooning people into secret surveillance
of their parishioners or customers, if they're a small
business, or whatever it may be.
Mr. Harris. Wow, that's pretty scary.
Mr. Schaerr. We don't know if it's actually happened, but
the way the law was drafted, that would be allowed.
Mr. Harris. Exactly. Well, Mr. Schaerr, your group, the
Project for Privacy and Surveillance Accountability, lists on
its website, quote, ``Solutions to protect privacy and restore
appropriate legal protections.''
The first solution on this list is requiring annual audits
of surveillance programs. How does oversight of the use of FISA
by government agencies currently operate?
Mr. Schaerr. Well, the most effective oversight right now
is this process of having to have it reauthorized every couple
of years. In the old days when it was every five years the
agency would, basically, do what they wanted until about a year
before the reauthorization, and then they would try to clean up
their act. They can't do that anymore. Just this annual
process--or this biannual process is useful.
Mr. Harris. Are there specific additional steps that you
believe Congress can take to improve the oversight of the use
of FISA by our government agencies?
Mr. Schaerr. Demanding more information from the FBI and
the Justice Department about how these programs are actually
being used, and then, following up when they inevitably don't
respond.
Mr. Harris. Well, thank you very much for that.
Mr. Czerniawski, in your written testimony, you mentioned
that the intelligence community has used artificial
intelligence to assist in conducting surveillance. While we all
want our intelligence community to be able to conduct proper
surveillance of foreign actors who seek to do us harm, we have
got to ensure that developing technology is not used to further
violate our Fourth Amendment.
In just the last few seconds we have left, what steps would
you say that Congress can take to ensure law enforcement uses
AI in a way that respects Americans' Fourth Amendment rights?
Mr. Czerniawski. Absolutely. Thank you for the question,
Representative.
That we don't want to necessarily deter agencies from using
new technologies to help them carry out their public mission.
That being said, as that technology's capacity to go and help
them potentially violate people's rights gets that much
greater, it makes that much more important that we have these
guardrails in place.
Having that warrant requirement, as Congressman Knott was
talking about before, the procedural elements of getting that
warrant are very important to carrying out the mission, but
they don't even have to worry about that right now, right?
If we're going to be leveraging these powerful
technologies, let's make sure that we have those processes and
procedures in place to minimize, and hopefully, ideally,
eliminate the misuses that have been well-documented for years.
Mr. Harris. Well, thank you so much. Thank you all again
for your time and your persistence. Thank you, Mr. Chair. I
yield back.
Chair Jordan. The gentleman yields back. We are almost
there. The gentlelady from Texas is recognized.
Ms. Crockett. Thank you so much, Mr. Chair. I share the
concerns of all my colleagues that they have mentioned this
morning as this hearing has been taking place.
The most important part of making reforms to government
surveillance programs is ensuring that Americans' privacy
rights are not being violated, but that requires Congress to do
its job and conduct oversight of these Executive Branch
programs.
We all agree that significant reforms are needed for FISA,
but over the past year, Republicans in the House and Senate
have allowed this President to be careless with Americans'
private data. This administration can't even prevent American
citizens from being arrested in their mass deportation machine.
Why should we believe that they will be able to prevent
Americans' private data from being unconstitutionally collected
throughout government surveillance programs?
For FISA to actually work as intended, Federal agencies
need enough staff and resources, but most importantly, they
need competent leadership. Unfortunately, this President and
his Cabinet have shown themselves to be incapable of
understanding the seriousness of handling sensitive information
or protecting Americans' private data.
When you have the Defense Secretary sending classified
information to the Vice President through Signal, or when
extremist billionaires are allowed to have access to Americans'
private data, or when ICE signs contracts to use surveillance
technologies against Americans who are critical of their
violent deportation tactics, all this shows that this
administration isn't serious about following the rule of law or
protecting Americans' privacy rights.
We can talk for hours about legislative reforms needed for
FISA, but none of it will matter if Republicans refuse to
conduct actual oversight, or if they continue to allow the
administration to dismantle Federal oversight offices and
positions.
Under this administration, numerous Federal agencies have
fired internal agency record officers, used auto-delete
technology when communicating, and stopped requiring the
preservation of Federal records.
Ms. Goitein, OK, we often learn about abuses in Federal
surveillance programs through whistleblowers. Can you explain
how the destruction of Federal records can incentivize agencies
to violate Americans' privacy records?
Ms. Goitein. I'm sorry, the destruction of Federal records?
Ms. Crockett. Yes.
Ms. Goitein. OK.
Ms. Crockett. Can you explain--
Ms. Goitein. Oh. Oh, OK. OK. Sorry, yes, my apologies. Yes,
I'm following you.
Yes, there's reasons why there are records retention
schedules in the law, and it's because this is the official
record of the official action. It is needed for all kinds of
purposes. It's needed for continuity over time with other
administrations. At times, it can be needed for litigation.
It, certainly, can be important to reveal misconduct--
fraud, waste, abuse--whether through internal oversight
channels, whether through oversight by Congress, the courts, or
through whistleblowers. Yes, it's important to preserve Federal
records, in accordance with the preservation schedules.
Ms. Crockett. Thank you so much. How have unchecked
surveillance powers historically been used against marginalized
groups?
Ms. Goitein. Oh, it is such a long story. It's not just in
this country, right? It's around the world. Surveillance is a
tool by which governments have oppressed marginalized
communities of all kinds.
In this country during the cold war, there was widespread
spying by the FBI, the CIA, and the NSA, and their predecessor
names for them. That surveillance was targeted against antiwar
protestors. It was targeted against social justice movements.
It was targeted against Martin Luther King, Jr. It was targeted
against political opponents of--whether it was the President or
people high up in the administrations.
That is a feature of this country's history that actually
led Congress to pass FISA and to get some kind of control over
foreign intelligence surveillance. A lot of these abuses were
in the name of foreign intelligence. These were purported
attempts to find out if there was foreign influence over
certain movements. It led to a number of other reforms by
Congress.
The problem is that, since then, and especially since 9/11,
some of the protections that were built into the law, including
FISA, that were meant to deter this kind of spying based on
politics, race, ideology, and religion, have been stripped out.
Particularly after 9/11, they were stripped out very, very
quickly, based on a sort of misguided sense that this was the
way that we were going to stop a future terrorist attack.
Ms. Crockett. Thank you so much.
Ms. Goitein. As a result, we're vulnerable once again. I'm
sorry I took so much time.
Ms. Crockett. No, no, no. That's OK. Thank you so much. I
appreciate you. With that, Mr. Chair, I will yield.
Chair Jordan. The gentlelady yields back. I want to thank
you all.
It seems to me everyone is probably in this giant database,
wherever it may reside. We have tried reform after reform, and
while helpful, it never seems to fully correct the problem.
The deterrence, the penalties, probably aren't there for
those who continue to abuse it, as evidenced by the one guy who
actually, on the Title I side of things, lied to the FISA
Court. He changed a document. He is back practicing law; got
his law license, and never really got any kind of real
sentence.
The only answer, it seems to me, is what we have been
spending 3\1/2\ hours talking about--is to get the warrant
requirement in there. We will continue to do that, continue to
work on that, and hopefully, get it done.
You guys have been a tremendous panel. We appreciate you
being here and the excellent testimony that you gave.
That concludes today's hearing.
We want to thank all our witnesses again.
Without objection, all Members will have five legislative
days to submit additional written questions for the witnesses
or additional materials for the record.
Without objection, the hearing is adjourned.
[Whereupon, at 12:31 p.m., the Committee was adjourned.]
All materials submitted for the record by Members of the
Committee on the Judiciary can be found at: https://
docs.house.gov/Committee/Calendar/ByEvent.aspx?EventID=118740.
[all]