LIVE: House Judiciary Subcommittee’s Hearing on ‘Fixing FISA’ (Part II)

good morning the subcommittee will come to order without objection the chair is authorized to declare recess at any time we welcome everyone to today's hearing on the foreign intelligence surveillance act fisa I will now recognize myself for an opening statement again I welcome my colleagues thank you for being here we're trying to beat a vote time so we want to get as much done as we possibly can before that as called if we're not not finished I'll let you know that we're planning on coming back following uh the vote series if we still are engaged here I thank our Witnesses very much for being here appreciate you being here as well Congress enacted the foreign intelligence surveillance act in 1978 in response to Revelations that the federal government had seriously abused warrantless surveillance resulting in rampant privacy violations 45 years later the same remains true despite efforts to reign in these abuses the federal government continues to use its powers to illegally spy on American citizens the federal government uses your tax dollars to spy on you using a law called the foreign intelligence surveillance act or fisa in 2019 Inspector General Michael Horowitz exposed the extent to which the FBI violated its authorities under fisa IG Horowitz identified significant concerns and serious performance failures including numerous factual misstatements and omissions in the FBI's unjustified investigation of trump campaign Associates in 29 in 29 applications that the FBI made to the fisa court to authorize surveillance IG was found in 25 of them there was unsupported uncorroborated or inconsistent information totaling more than 200 instances where the applications were inaccurate unsupported or omitted information the FBI was unable to even locate the woods file uh and in for the yeah for the other four applications so the 29 couldn't even find four Woods files and found over 400 instances of non-compliance with Woods procedures across the 29 applications sample in February 2020 director Ray testified before this committee and told the American people that they should not quote lose any sleep over the vast majority of fice applications former director Comey labeled fisa a top-tier FBI program but upon further review by the Inspector General it was revealed that the FBI failed to recognize his system the significant risk posed by the systemic non-compliance with the woods procedures which provide the factual justification for fisa applications in May of this year's special counsel John Durham released his report on the FBI's Crossfire hurricane investigation that report not only backed up Inspector General horowitz's findings but also found that political and confirmation bias by FBI employees led the FBI to lie to the foreign intelligence surveillance court and eagerly illegally spy on the Trump campaign for an entire year in the recent investigation of a special counsel Durham he found that Summit fi's applications ultimately arose from sources close with the Kremlin who were known to be targets of ongoing U.S investigations related to fraud and Espionage Durham concluded that the FBI ran with the first justification found to spy on the Trump campaign despite clear indications of foreign unreliable sourcing these reports detail only a fraction of the government's abuses of the fisa program at the end of this year section 702 of fisa will expire section 702 does not require a warrant or any other justification to an independent Arbiter such as a judge or magistrate before the government agent can query databases about an individual who is a U.S citizen reports in recent years have exposed the governments and specifically the FBI's abuse of this program a law designed to provide tools to collect foreign intelligence and prevent terrorist attacks has been warped into a domestic spy tool that has been used millions of times over the past three years to Target Americans in 2021 the FB FBI queried the communications of over 3.3 million Communications more than 3.3 million times and of more than one million discrete U.S citizens in 2022 the FBI conducted thousands of U.S person queries a recent fisa court opinion revealed that FBI conducted more than 278 000 improper searches of U.S persons Communications in 2022 including those of people who attended protests uh 19 000 donors to a Congressional Campaign and in another instance the FBI looked at the communications of those very of donors think about that 19 000 people on a donor list are being queried and looked at by the FBI simply because they did donate as Congress considers whether to reauthorize this program this committee will be at the Forefront and has the opportunity to shed a light on the broad issue of warrantless mass surveillance in violation of the Fourth Amendment we must consider whether fisa and section 702 can be reformed or if it's beyond repair I for one see no reason for members on either side of the aisle to trust the FBI with this tool the FBI has used Visa specifically section 702 to spy on Americans to violate the Fourth Amendment and conduct warrantless warrantless searches fisa 702 as a year let's clear it's clear the government is using Communications acquired through this program to conduct back door searches which I think we'll hear more about today most of this is done without a warrant section 702 information acquired without a warrant can later be used by the FBI and criminal prosecutions unrelated to foreign intelligence or national security the FBI has misused privileged spying powers to conduct Rogue surveillance on innocent Americans and we cannot allow that to continue I have called for serious reforms or full repeal of fisa for years I think it is built on a dubious constitutional Foundation the FBI has used this tool designed for foreign surveillance to spy on Congressional donors January 6 protesters black lives matter protesters and even elected to officials including one of our own Congressional colleagues we must end those warrantless surveillance we must warrantless surveillance of Americans and hold accountable any federal official who violates the civil liberties of Americans make no mistake actors within the FBI and other similar federal agencies who continue to conduct unlawful and unconstitutional surveillance of Americans should be brought to Justice some argue that there's that there are no more invade that these are no more invasive than a stop and frisk Terry stop but at least in a stop and frisk you have personal contact and actual communication between Target and the government agent I suggest that even a 702 query is more akin to a wiretap which requires a warrant before executing uh that that query or that wiretap the FBI claim the FBI claim now is that it's okay because it is put in place new protocols and new software but unlike a warrant all of the FBI measures rest ultimately on post-action review and it's not by an independent arbiter I continue to believe that we will be able to work across the aisle with with our colleagues because so many of us agree on this issue and I extend my hand to them and look forward to working with ranking member Jackson Lee and other members of this committee as we confront this serious issue again I thank those on the panel for being here today I thank our Witnesses and those in the audience and I yield back and now recognize the ranking member Ms jacksonly for an opening statement Mr chairman thank you so very much I am very pleased to join you in convening today's hearing on the foreign intelligence surveillance act or fisa as I indicated during part one of our examination advisor this subcommittee has a critical role to play in the reauthorization of section 702 which expires in less than six months let me acknowledge all of my colleagues that are present here today uh in particular ranking member Nadler the two of us may be the only ones present that we here when the Judiciary Committee single-handedly had to put a pause on the Patriot Act and begin to address some of our concerns uh after 9 11. even in that dastardly devastating loss of life it was important to recognize that we are a nation of laws and the Constitution and to be able to respond at that time I know that the thousands of Agents Across America have as their General premise to investigate crimes and as FBI agents and to follow the law and to protect the American people that I will acknowledge we have the opportunity to be briefed just a few days ago by members of the FBI and I will acknowledge that there is a critical understanding of the challenges that we are now facing but Congress is the Arbiter of the Constitution uh and the responder to the American people and the protective of the American people's constitutional rights with that in mind this vital set of Provisions under Section 702 which has been the subject of much scrutiny and criticism permits the federal government to collect foreign intelligence targeting non-us persons outside the United States without obtaining individualized orders it is of course um a unique provision while I expect that today's witnesses will discuss many of those criticisms hope that we are able to have a constructive conversation about the ways in which Congress can make certain that U.S persons are not ensnared in the web of international surveillance I will look forward to their Insight because we will Act Congress must act beginning with the foreign intelligence surveillance Act was first passed more than 30 years ago to address abuses in collecting and using foreign and domestic intelligence the government must show not only that there is probable cause to believe the target of intelligence surveillance is an agent of a foreign power but also that foreign intelligence gathering is a primary purpose of the collection following the 9 11 attack and significant advancements in technology the foreign intelligence gathering needs of the country shifted considerably yet will often stymied by the need to obtain individual fisa court orders for overseas surveillance which requires substantial Manpower as presented to Congress by law enforcement in response Congress passed the Pfizer Amendment act FAA of 2008 that authorized the federal government to collect massive amounts of information through the targeted surveillance of foreign persons reasonably believed to be outside of the United States without a warrant current Congress has granted agencies within the U.S intelligence Community this Authority through Pfizer and section 702 says they may gather foreign intelligence information to seek out pursue and throat threats from foreign terrorists and nation states that mean to harm us together these statutes have been vital to the protection and safety of Americans however as we consider reauthorization of section 702 we must be certain that we're not conceding very clear the constitutional rights of Americans in the name of National Security that is what makes America unique that is what is the grounding of the constantial Constitutional pillars that are uh our definition the FAA requires intelligence agencies to design targeting procedures to limit the scope of collection before the government acts and minimization procedures to limit the use of information about U.S persons after the government incidentally collects that information foreign intelligence surveillance Court reviews these procedures for legal sufficiency although the statute includes protections for U.S persons whose information is inadvertently collected but not constitutionally subject to targeting we know that the NSA and doj have repeatedly reported the unauthorized use of backdoor searches of the 702 database and as a release from the Brennan Center pointed out internal oversight measures hailed as robust failed to prevent flagrant abuses including 133 warrantless searches aimed at black lives matter protesters and nineteen thousand searches for communications to a single Congressional Campaign we're also faced with considering what guardrails are appropriate to prevent federal agencies from evading the legal protections of Americans privacy by purchasing data from data Brokers these and other problems with Pfizer and section 702 have led some of my colleagues particularly chairman Jordan and chairman Biggs and all of us to take a position adverse to reauthorization of section 702 in its current form since this is the second hearing of this subject hope that my colleagues are attaining sufficient information to help us reach a compromised position to move this reauthorization forward and to acknowledge that all of us have criticisms but I think what is broken needs to be fixed given the threats facing our nation from the ruling Chinese Communist party that represents both the leading and most consequential threat to U.S national security and Leadership globally according to director of natural intelligence Avril Haynes to terrorist groups such as Isis Al Qaeda and Hezbollah that continue to plot attacks against the United States it is critical that we take appropriate action before the exploration of government authorities under this provision and simply make it right make it correct make it constitutionally infrastructured if you will to be able to function for what it is needed and to protect the American people that is why I will reiterate my thoughts from part one of this conversation we work together to pass USA Freedom Act in 2015 demonstrating that we're capable of building consensus around our common values dedicated to privacy transparency and protection from unreasonable searches and seizures let us do so again together on behalf of the American people reshaping these critical tools so that they serve the government's needs are also protecting the privacy of every American I look forward to the testimony of our Witnesses and yield back Mr chairman thank you I think the ranking member Jackson Lee and now the ranking member of the entire committee Mr Nadler from New York thank you Mr chairman and thank you for continuing this committee's important work on Pfizer reauthorization and on the overall question of the warrantless acquisition of U.S person information and our last hearing we heard from government Watchdogs who described the FBI's ongoing compliance issues with Section 702 today I hope to hear from the witnesses about the impact of these violations even when they are unintentional and about what changes this panel believes would make inappropriate queries of the 702 database all but impossible as I said at the beginning of our last hearing on this topic I have never voted to reauthorize section 702. I am deeply uncomfortable as we all should be with the legal fiction that it is permissible for the government to search our most private Communications without a warrant simply because they were aiming for non-us persons overseas I understand however that this Authority has become increasingly important to our national security and so I will entertain reauthorizing section 702 provided that we meet this basic privacy challenge head on although section 702 authorizes only the targeting of non-us persons who are outside the United States we know that massive amounts of U.S person data are swept up under this programmatic surveillance we also know from what reporting is available that the government has a lot of this data that much of it could not have been obtained without a warrant had they tried to collect it directly as the reauthorization debate has begun in Earnest the FBI has assured us that they only receive a small percentage of the total information collection collection under Section 702. we cannot discuss precise numbers in this setting but nobody should take comfort in the fact that the FBI only has access to some portion of a staggeringly large volume of information including vast amounts of data about U.S versus the FBI is also demonstrated after two decades of tinkering with the system that improved training and the reconfiguration of their database has reduced the number of improper queries of section 702 information by roughly 90 percent this past year alone that is no small feat and I wonder where this debate would be today if the Department of Justice and the FBI had taken the non-compliance problems seriously years ago but again it is difficult to find comfort in the percentages if two years ago there were two million improper queries and last year there were only two hundred thousand improper queries we are still left to contend with two hundred thousand unsuccessful attempts to sidestep our constitutional protections in recent briefing the FBI and the Department of Justice told our members and our staff that one cause of non-compliance was was a simple misunderstanding in quotes of the legal standards under Section 702 that was their term misunderstanding I have no doubt that FBI personnel and field officers across the country may have had trouble interpreting the law and I am pleased that this that the Administration has corrected course but I find it deeply troubling that the FBI would blame its field officers for a problem that clearly originated from its leadership let's tell the story as it actually happened Congress last reauthorized section 702 in 2017 over the course of the next few years doj and the FBI diverged and had to interpret the legal standards for searching the section 702 database the FBI told us at the time that it was perfectly appropriate for the bureau to take a looser view of the statute and approach that ultimately gave them more access to our private Communications this was no in misunderstanding it was a deliberately maximalist interpretation of the law the scaling fisa Court opinion that has been released since our last hearing the one that showed the FBI query querying the database for particular campaign donors George Floyd protesters in January six suspects is a direct rebuke of that interpretation I understand that the FBI has since correct the course I'm deeply gratified that the leadership of the Department of Justice took control and decided to adhere to the limits Congress put in place but this so-called misunderstanding really gets to the heart of the matter chairman Biggs and I agree on very little but here is one place we agree whatever whatever we think of the last Administration whatever we think of the current Administration we cannot count on the next Administration to get this right we have to build a section 702 regime that fully respects our privacy no matter who is in charge not 90 percent of our privacy all of our privacy the changes the FBI has made to this program in the run-up to reauthorization are welcome but they are insufficient I look forward to hearing from our panel today what about what else we must do to correct this program before it can be reauthorized thank you Mr chairman and I yield back thank you Mr Nadler without objection all other opening statements will be included in the record we will now introduce today's Witnesses I'm very excited to welcome this August panel Professor Jonathan Turley Professor Turley is the JB and Maurice C Shapiro professor of public interest law at the George Washington University law school he's a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to Legal Theory thanks for being here professor Mr Phil Kiko is the principal at Williams and Jensen pllc he is a former chief administrative officer of the House of Representatives and has served in a number of positions with members of Congress and committees including this committee the Judiciary Committee thanks for being here Mr Kiko Mr Gene Shire is a partner at shares Jeff chair Jeff LLP and serves as the general counsel at the project for privacy and surveillance accountability the project for privacy and surveillance accountability advocates for greater protection for Americans privacy and civil liberties in government surveillance programs thank you for being here Mr chair uh Ms Ms Elizabeth goitain am I close okay go 18. okay Ms goiting is the senior director of the Brennan Center for justices Liberty and National Security program her work focuses on presidential emergency Powers government surveillance and government secrecy we welcome each of you here today we thank you for appearing uh I I think we're all very excited to hear what you have to say particularly potential remedies and Reformation recommendations we will Begin by swearing you in if each of you would please rise and raise your right hand do you swear affirm under penalty of perjury that the testimony you are about to give is true and correct to the best of your knowledge information and belief so help you God let the record reflect the witnesses answered and Witnesses have all answered in the affirmative thank you please be seated and please know that your written testimony will be entered into the record in its entirety accordingly we ask that you summarize your your testimony in five minutes I will begin tapping just just before that five minutes so you are aware that that your time's about to expire and the floor will open up in your chair will disappear no that would that really won't happen I can't believe I said that I I'm not filtering anyway I'll try to filter it Professor Turley we recognize you for your five minutes thank you chairman Biggs thank you ranking member Jackson Lee and thank you ranking member Nadler and all the members of the subcommittee it's an honor to speak to you today uh about Feist on the reauthorization of 702. today's hearing will raise admittedly to have called legal questions uh and there's some questions however that should not be in doubt there's no question that the FBI and other agencies have continued to defy federal law and abuse their powers under fisa there's no question that both the courts and Congress have been misled in the use of Faison prior years there is no question that the scope of the harm to privacy and constitutional rights has been immense the only question is what you're going to do about it and I think it is a significant moment in today's deeply divided politics that not only are the Witnesses on this panel largely United in our views but it appears that many of the members of both parties are as well quite frankly the FBI is back uh once again in a reauthorization as ranking member Nadler mentioned saying that you can trust us and for those of us who have been critical of fisa it is an exercise of really breathtaking audacity including as Congressman Adler stated the continued reference to misunderstanding laws after years of litigation and discussion of those laws if we reauthorize section 702 without significant changes then we have become a nation of chumps it's not like this is being held from us as facts we have documented evidence of massive violations of the privacy of U.S citizens so this is not something that is being hidden it's in plain sight now obviously one of the possible responses from Congress can be simply to let this provision Sunset you just go back to the way it was in 2008 that would convey an important deterrent for agencies that if you abuse it you lose it and this would certainly warrant that type of response but assuming that you want to add guard rails there are a number of things that I've suggested my written testimony my colleagues have recommended others and theirs these include ending backdoor searches strengthening minimization standards barring parallel construction uh dealing with commercially available information as a circumvention of constitutional protections and the creation of special advocates in the fisa prod process you know when Ronald Reagan uh he famously talked about I the Russian proverb trust but verify we actually have our own such proverb and or Viewpoint and that was contained in Federalist 51. when James Madison said you can never have government where you trust on the good motivations of the government itself if this was part of his discussion that if all men were Angels no government would be necessary and he said that the key to good government was to oblige the government to control itself fisa fulfills Madison's worst expectations that trust has been repeatedly violated by the FBI and other agencies and so once again I ask what are you going to do about it now Government powers a lot like gas in a closed space if you expand the space the government will expand evenly to fill it if you allow a crack the gas will escape section 702 wasn't a crack it was a wide open door that allowed for these types of violations to occur this pretense of incidental uh violations of privacy I won't get into the specific details right now but I'll be happy to talk about them I do want to know one of the suggestions that I make is for the creation of special Advocates as was mentioned earlier this uh Congress did create Amicus as part of fisa that system was commendable but it has been an utter failure in my view we need the creation of a different type of advocate within the fisa system just as there are Advocates to protect our security and fisa there should be Advocates protecting our privacy and fisa and we need to create a firm structured role for that in many ways the Vatican had the Devil's Advocate that often had to uh um present evidence against the wishes of the Vatican we have to have the same process and fisa thank you very much for the opportunity to speak today and I'd be happy to answer questions thank you Professor truly Mr Kiko you're recognized for your five minutes chairman Biggs ranking member of Jackson Lee and Adler it's an honor to testify before this committee I was asked to share my experience in successfully assisting in crafting complex anti-terrorism legislation in particular the USA Patriot Act and its progeny and to provide some perspective associated with the issue of 702 expiring at the end of this year a little background following widespread wiretapping and surveillance abuses Congress originally enacted fisa to make sure that government agencies must secure authorization to gather foreign intelligence in addition addition fisa created two new article 3 courts the most significant later reforms in fisa was the enactment of the Patriot Act as a result of the attacks the pressure on this committee to do something after the 9 11 attacks was enormous however the committee came together to consider all the options formal hearings were held to discuss new anti-terrorism authorities we had a lot of unofficial late night sessions committee members sitting at the Deus here the committee sought input from everyone the door was wide open to craft the Patriot Act but one of this committees taught bipartisan priorities was to ensure that we protected not only our national security but our cherished civil liberties and that core principle has been the hot point of contention in every fisa debate the Patriot Act provided enhanced investigative tools to prevent the future terrorist activities and the prevention of preliminary acts and crimes to further such it amended fisa by creating 16 new authorities and looking back one of the best things Congress does was to incorporate the sunset provisions the idea of sunsetting these authorities was not popular at the time particularly with the justice department but the Patriot Act would be enacted with this extraordinary new powers and safeguards to civil liberties only the sunset Provisions were there to preserve congress's power to change the law since 9 11 fisa has been amended several times including the addition of 702 in 2008 and it created procedures to collect foreign intelligence when Communications travel through the United States communication infrastructure it was designed to Target non-us persons reasonably believed to be located overseas and it was viewed as a vital tool to protect ing Americans including our men and women in uniform but have the law enforcement agencies and intelligence communities earned our trust to retain those expansive authorities I would say the answer I think is no my written statement goes into the problems in detail and this committee knows more than ever the Myriad of ways in which the failures have occurred I should add this frustration is not a partisan one since the Lake of the Snowden documents the public disclosure of abuses that resulted in the passage of the USA Freedom Act we have continued to witness serious escalating concerns surrounding misconduct and abuse of civil liberties the public record is replete with abuse the public trust has deteriorated obviously something needs to be done traditional oversight is not good enough because it always looks backward after the damage has been done when an agency abuses statutory construct whether intentionally or through malfeasance or through negligence there needs to be consequences for bad behavior the lack of any consequences for these abuse abuses compounds the lack of trust let's make the system more accountable as for oversight How can there be effective oversight when so few clearances of congressional staff there is probably you know of all the people that are doing oversight in the house side I'd say more than there's not more than 15 or 20 people that have the clearances that really go so so how are you going to do effective oversight and trust me they understand that in the agencies so 702 expires this year the important Provisions should not be lost if for no other reason than fisa was enacted to constrain however there's been abuse if Congress decides to let it expire which is their prerogative then figure out a way to legislate a different mechanism to replace it I stand ready to assist in any way I can thank you very much thank you Mr Kiko and now I recognize MS Miss goiting for your five minutes thank you thank you chairman Biggs ranking member Jackson Lee and ranking member Nadler and members of the subcommittee thank you for this opportunity to testify on such an important topic section 702 was passed to enhance the government's powers to conduct surveillance of foreign terrorists today according to the government it's used to combat a range of foreign threats including cyber security attacks fentanyl trafficking and Espionage Act of course if that were all section 702 were used for we wouldn't be here today the reason this Authority is so controversial and the reason it should not be reauthorized without far-reaching reforms is that it's become a rich source of warrantless access to Americans Communications how did this happen section 702 authorizes warrantless surveillance and therefore it can only be targeted at foreigners abroad but the surveillance inevitably sweeps in Americans Communications because Americans communicate with foreigners if the government's intent were to spy on those Americans it would have to get a warrant in a criminal investigation or a fisa title 1 order in a foreign intelligence investigation so to prevent the government from using section 702 as an end run around these constitutional and statutory requirements Congress did two things it required the government to minimize the retention and use of Americans information and it required the government to certify that it is not using section 702 as a back door to spy on Americans these protections have proven to be meaningless all of the agencies that receive section 702 data conduct warrantless electronic searches of that data for the express purpose of finding and retrieving Americans phone calls emails and text messages the FBI conducted 200 000 of these back door searches in 2022 alone this staggering number leaves no doubt that section 702 has become a domestic spying tool one that allows the government to circumvent the protections of the Fourth Amendment and fisa now Congress and the fisa court have attempted to put some limits on this practice but agencies have routinely violated those limits in 2018 Congress enacted a warrant requirement that applies to a very small fraction of the FBI's backdoor searches this requirement has been triggered roughly a hundred times by the government's own admission the FBI has never once complied with it the FBI has also engaged in widespread violations of its own rules for backdoor searches according to the fisa court these violations include searches for the communications of more than 130 racial Justice protesters thousands of people suspected of involvement in the January 6 attack on the U.S Capitol nineteen thousand donors to a Congressional Campaign in multiple U.S government officials journalists and political commentators the starting point for any conversation about reauthorizing section 702 must be a requirement that the government obtain a Title 1 order or a warrant before searching section 702 data for Americans and Communications but that's only the beginning because if Congress stops there the government could exploit gaps in the law to obtain much of the same information not just without a warrant but without any legislative limits or judicial oversight for instance generally speaking fisa only applies when the government collects information inside the United States or from U.S companies this geographical boundary is a holdover from a time when domestic surveillance usually meant surveillance of Americans and overseas surveillance usually meant surveillance of foreigners but in the digital age Americans Communications are as likely to be rooted and stored overseas as they are in the United States overseas surveillance can therefore have just as great an impact on Americans privacy as domestic domestic surveillance yet for the most part the government writes its own rules for overseas collection and those rules expressly permit bulk collection and backdoor searches there are also gaps in fisa's exclusivity provision that allow the government to treat certain parts of fisa as optional for instance Visa appears to require the government to obtain a court order to collect American cell phone location information but the government can and does obtain access to vast databases of this highly sensitive information by purchasing it from data brokers there is little point in closing the backdoor search loophole if the government can simply pivot to other loopholes in the law meaningful reform of section 702 will require a comprehensive approach to reaming in warrantless surveillance of Americans thank you and I look forward to your questions thank you very much and now we'll go to you Mr Shar for your five minutes and ranking member Jackson Lee and ranking member Nadler and and other members of the subcommittee it's an honor to appear before you today on behalf of our civil civil liberties organization the project for privacy and surveillance accountability or ppsa we work with groups across the Spectrum to address government surveillance abuses and encroachments on the fourth amendment and I'm here to urge you to treat the expiration of fisa section 702 as a once in a generation opportunity for Congress to reassert its rightful constitutional prerogative to broadly determine when why and how Americans can be surveilled by their own government and to that end with our allies we have urged Congress to enact comprehensive reforms that Implement five key principles designed to protect Americans privacy without sacrificing our security today I'll focus on just three of those principles and how they can help you bring all government surveillance of Americans with an appropriate statutory guard rails and oversight and by the way although I represent Carter page and many other clients I'm appearing today only on behalf of ppsa the first principle that we've urged flows from the consent of the Govern concept articulated in the Declaration of Independence and then embodied in article one of our Constitution and it is that American citizens should not be subject to surveillance by their own government without their implied consent in the form of a statute duly enacted by their representatives here in Congress Americans shouldn't be subject to surveillance merely at the whim of the FBI or any other executive official none of whom has authority to consent to surveillance on our behalf and yet under administrations headed by both parties the CIA for example has exploited technology created gaps in fisa's reach to conduct a bulk collection program that sweeps up much of American sensitive data similarly if we as we've heard the FBI routinely conducts backed or searches of information collected under Section 702 and as we we've also heard the government routinely buys our most personal information from third-party data Brokers and without a clear statute governing all surveillance activities Congress will be doomed to Forever playing whack-a-mole with the surveillance agencies the second principle is that as Miss go team goiting said any government access to Americans Communications or other private data should be undertaken only pursuant to a probable cause judicial order such a warrant or other order provides at least some assurance that the government has a specific concern that justifies the surveillance uh a probable cause order requirement moreover should not apply just to direct surveillance but also to more indirect forms of surveillance like searching for information about Americans in a database of purchased information or in the massive Trove of data compiled under Section 702 on that point you've already heard many examples of overreaching backdoor section 702 searches and I won't repeat them but the potential for abuse of purchase data including geolocation data and other Fourth Amendment protected information is if anything even greater but currently neither of these indirect forms of surveillance is meaningfully constrained by statutory guard rails or judicial oversight they should all be subject to a probable cause order requirements similar to the requirement for surveillance under fisa title 1. the third principle is that any surveillance of Americans should be subject to adequate mechanisms in both Congress and the Judiciary to ensure accountability for compliance with governing law and that's important because as we know the current system is Rife with violations uh the chairman mentioned earlier the inspector the doj Inspector General report that found so many violations of the uh of the requirements applicable to applications to the fisa court and those problems highlight the need for an enhanced system of having civil liberties experts or amiki advised the fisa court in sensitive investigation along the lines of the Lee Leahy amendment that a couple of years ago passed the Senate overwhelmingly more generally any revamp of fisa must go well beyond ensuring that Congress has the tools to adequately oversee surveillance agency that revamp must also include enhanced penalties for violating statutory guard rails for lying to Courts for refusing to comply with statutory reporting requirements and other meaningful consequences for misbehavior or stonewalling as the people's agents you can stop this game of surveillance whack-a-mole you can do that by assert your constitutional Authority against an executive branch that under both parties is too often overbearing and against the judicial branch that too often gives the executive an undeserved benefit of the doubt please don't let this rare opportunity slip away thank you Mr chair and now recognize the gentleman from Florida Mr gates for his five minutes Miss goiting many of my constituents will watch this hearing and they'll say well the foreign intelligence surveillance act I'm not a foreigner why should that bother me what would you say Americans Communications are swept up in enormous volumes so enormous that the government won't tell us how big it is because it would be a very awkward number for the government to disclose I suspect that's the real reason um and those Communications are available to FBI agents without a warrant or a court order of any kind and you talked about these backdoor searches and that's been an intense focus of the committee uh could you help Define that for folks so they understand the risk there sure what a back door search is is an electronic query of data obtained under Section 702 so the communications are obtained they are placed into Data Systems um at the NSA and then shared with the FBI the national counterterrorism Center and the CIA and then agents can run electronic queries of those Data Systems using identifiers associated with Americans so using Americans email address for example they can plug that in and that will return any Communications that were obtained under Section 702 that have an American on one end of them and it almost feels like there's a digital file out there about millions of Americans and and I'm sort of wondering how and we've tried to get straight answers uh from folks who work in the government about this question but what we've learned is it's upwards of 10 000 people who can conduct some of these backdoor searches have any of your studies um evaluated the breadth of individuals who can engage in this violation of our civil liberties no we don't know the number but I think isn't that scary should we I mean it seems like something we should know uh how many people can do backdoor searches and information that was not collected pursuant to any probable cause or a warrant yeah it would be a good thing to know and one of the reasons why I think we should be curious about it is because the government has told the fisa court that one of the reasons for all of these violations we've seen is that FBI agents didn't understand the standard for those searches and that standard is that the search has to be reasonably likely to obtain foreign intelligence or evidence of a crime well and that doesn't sound like rocket science me and that standard has been in place for 15 years but they've they break it well I mean I just read an order from the foreign intelligence the Fisk the court and the court said well you weren't just using these searches and queries to get legitimate law enforcement information at times people at the FBI were searching themselves searching their ex-lovers searching their neighbors uh in this system um and and so it seems as though they're not really there's not a standard that's adhered to it's adhered to often in the breach there were 278 000 violations of that standard in 2021. I mean if you've got 278 000 violations of the standard the as you've said the breach is the standard in a lot of ways so we have this tactical question coming up we have fisa that is set to expire and I believe we should let it I believe it does it that the standard of violation of breach is so pervasive that the patient is not savable that we have to design something totally different outside of 702 and then I have other colleagues who are who are like-minded in my desire to protect civil liberties but who suggest tactically that the best approach is to try to insert strong warrant requirements this is my seventh year in Congress Mr Kiko I certainly don't have your experience but I want to draw on it because I want to get your advice I've gone down this road with the Cheney estas and and others who bring us to the precipice of Reform and then at the last moment it seems as though the Civil Libertarians uh rarely Prevail over those who who purport to be defending national security no matter how many violations of our liberties occur and so would you advise uh a reform effort or an expiration uh strategy and why well I would that's a very tough question and I know that's why you ask it and I would I can actually see my preference would be some kind of Reform effort with teeth and accountability because there hasn't been any teeth and there hasn't been any accountability in in the oversight that's been conducted we're always at the end of the system they say they're going to do something it never gets done four years later we find out there's massive violations everybody comes well we're going to do it this time but there's no accountability among the people that are breaking the law there's no accountability among the administration it doesn't matter there's nothing it sounds like there need to be penalties thank you for your testimony I yield back thank you chair recognizes the gentle lady the ranking member of Ms Jackson Lee and thank the witnesses very much just a slight moment down memory lane muscotine something called cointelpro I won't ask you to get in the weeds but it was used extensively against Dr Martin Luther King and the whole landscape of so rights activists and workers to give minimal Liberties to African Americans during the 1950s and 60s so here we are again with what was needed to be able to protect Americans and I think it's important to indicate that the process was that if there was communication and it was with a foreign operative foreign citizen the FBI for Americans would not be targeting you not supposed to be but we're targeting that foreign citizen or the communications there are how did we mess up so badly wow that's a tough question um what I would say is that fisa has enacted in 1978 required the government to obtain an individualized court order showing probable cause that the target of surveillance was a foreign power or an agent of foreign power when domestically placing a wiretap to collect Communications between even foreign targets and Americans and that was to safeguard the Americans constitutional rights that they have in that communication what section 702 did is it got rid of that requirement and it enabled the government to say that as long as it's targeting a foreigner we don't really have to worry so much about the Americans constitutional rights now that's not actually what section 702 says it says you're going to pull this in the American side of the communications but you should minimize it you should delete it you should not share it unfortunately that's not what has happened so that that is and I because I'm that's a Crux of one of the elements of the problem they're this mountain piles up and no one feels any compulsion uh not compelled to say let me immediately send it into the incinerator throw it into the trash get rid of it shredded Etc doesn't happen right and even even if the FBI FBS Americans information or other agencies NSA CIA um that that doesn't even seem to be a foreign intelligence or an Evidence of a crime uh they pretty much never get rid of it until it reaches the age-off uh uh deadline which is five years it's five years with a lot of exceptions so it's five years or in many cases much longer let me try to to hone in on what Americans may be impacted by with respect to these cases this pile of information which an agency is not complied with the guidelines that Congress put in place and or their own policies to your knowledge is the evidence find or is the evidence found its way found in this way typically excluded in a criminal case well in most criminal cases the government doesn't give the notice to criminal defendants that is required under fisa there's been a long pattern of the government evading its notice obligations and if the defendant doesn't know that fisa has been you that section 702 has been used in that defendant's case there's no way the defendant can raise a challenge let alone have the evidence excluded and most likely the way that the government has been avoiding this notice obligation is through parallel construction which is a well-documented practice of essentially recreating the evidence using less controversial means so one of the things that Congress should do if and when it reauthorizes section 702 is to prohibit parallel construction if I could quickly speak to Congressman Gates's question I think the problem with simply letting section 702 expire is that I will allow you to do so the Chairman's going to give me a little bit more time and be able to answer no no no but if you'll go quickly I'll go very quickly um is that Congress will then lose the opportunity to make necessary reforms to other surveillance authorities and to close gaps that are in those authorities that allow the government to operate without any statutory Authority at all and if Congress merely let section 702 expire the government will will shift its surveillance activities to these other methods so let me quickly um get from you the singular change other than what we just talked about parallel construction that we should be looking at Legend lady's times expired but you may answer that question if I have any message for you today at all it's that you cannot just go with One Singular change a warrant requirement for backdoor searches is necessary it is farsome from sufficient there are other reforms that need to be made not only to section 702 but also to oversee surveillance that currently happens without any statutory authority to the practice of purchasing Fourth Amendment protected information from data Brokers uh and several other reforms that I mentioned in my written testimony thank you yield back thank you I recognize the gentleman from Wisconsin Mr Tiffany yeah thank you Mr chairman um the subject of this hearing Mr chairman is fixing fisa correct and so um with all due respect Mr Kiko I heard the comment you made that was along the lines of that both parties agree on one of the most significant abuses of fisa we do not have agreement and that was in regards to one president Donald J Trump it was abused and Mr Durham highlighted what an abuse it was of fisa and we have many people including on this panel that still will not recognize that and that is dangerous for the American Republic because if if you have a praetorian guard that thinks they can take down a president are we all free are we all free uh Mr Turley building off from Mr Gates's questioning so let's say we don't authorize what will happen let's say we didn't will there be things that fill in the gaps do we have existing law well thank you for asking that question because there is a uh what economists sometimes call a path dependency that can set in with these types of programs that you can't imagine not having 702 I can because 702 and many of the members of this panel can because we were here uh you were in Congress I was testifying when 702 was created so there was a an existence before 702 and Rome did not burn uh that you have a system that can handle it the question is whether Congress feels that these abuses are so serious that you want to use a rule that if you abuse it you lose it that is the concrete this is not the first time the FBI's come before you and said oops you know we misunderstood the law oops we did millions of improper searches oops we actually violated the privacy of citizens in exactly the way that people said would happen at some point Congress has to decide whether 702 was a good uh path to take if it decides to reauthorize 702 the solutions are very very clear Mr Turley um if the people are not Honorable in those agencies is it even fixable well you know part of the problem I had with director Ray's testimony this week is when he talked about fisa he kept on saying that was that earlier director well the director may have changed but the people in the fisa system have not there's been a consistent culture of violations here that go back throughout the history of fisa and this gets to again the sort of premise that was the flow of fisa of trusting the government to act on good motivations uh and I think that it's repeatedly shown quite frankly it cannot be trusted with that level of discretion and fortunately I only got five minutes here uh you'll want to get a couple more questions Mr Shear so Mr Gates once again said tactically what should the reforms what would be One reform that you would say needs to be done if section 702 is left in place turn your mic on apology several others have come up with a list of reforms in there and they're about there are over 25 of them um perhaps the most important is the wire the uh warrant work requirement the probable cause requirement that we discussed earlier and if I could could just briefly answer the question that you asked earlier uh Congressman as a as a former White House counsel uh lawyer um the the answer that I would give to your question as to why it would be a mistake just to let section 702 require uh expire is that you then have a statutory vacuum which the executive branch loves if you're a lawyer in the white house or the justice department you're you're going to ask the question you're going to ask is if we do this will we be violating any law and if there's no law on point your inclination is going to be to ask well does the president have an inherent authority to do this thing that the intelligence Community wants to do and of course they tend to read presidential Authority broadly and so if there's if there's no statute that governs the issue you're basically going to be opening the door to the White House and justice department lawyers to come up with creative so your concern that we'd be seating authority to the executive absolutely yeah it's not their role so um uh what if there's what if there was a penalty of removal of qualified immunity for somebody that abuse this I think that's something that ought to be considered okay um I got to get one more question in here um Miss goiting I'm on um Mr Turley did a terrific job of anticipating my question um did you hear the testimony of uh director Ray I did not I was busy preparing for this hearing well I would just say to you that you were incredibly prepared and we really really appreciate that Mr chairman I just want to say thank you for putting together this panel it's one of the finest that I've been before thank you thank you uh they have notified votes they've called them what we're going to do here so everybody knows is I'm going to go to Mr Nadler for his his questioning and then we're going to recess until after the votes which would mean I would anticipate somewhere between 11 15 11 30 we'll be back in this room sorry about that Interruption and with that Mr Nadler please thank you let me first say that with respect to what Mr Tiffany said we may have a disagreement over whether uh fisa was abused in a certain case and not with respect to the former president that doesn't affect our deliberations now we all agree that fisa has been massively abused and we've got to fix it Mr kaiker and and the idea of qual of eliminating qualified immunity here is a good one I'd like to eliminate qualified immunity entirely and Mr kaiko in the three months since this committee last held a hearing on Pfizer we learned that the FBI conducted unminimized warrantless backdoor searches of campaign donors George Floyd protesters and many others if the FBI sought to search Americans Communications no matter the reason they would normally need a warrant under the Fourth Amendment could you briefly explain to us why the court has found warrantless searches of the 702 database to be acceptable under the Constitution I don't think a warrantless search is acceptable under the Constitution and that's what that was what was anticipated when when the Fourth Amendment was created we agree on that my question is why why is the court found warrantless searches of the 702 database to be acceptable under the Constitution I I haven't looked at that particular question so I would ask a panel member to anybody else I'd be happy to answer that the fisa court has found that that warrantless searches are constitutional the fisa court has essentially said as long as the initial collection was lawful then you apply some kind of lower standard to analyzing the queries rather than treating it as a separate Fourth Amendment event however uh section 702 has recently made its way to the regular federal courts and I say recently because for many years the government was not providing notice to criminal defendants so there was no way to raise the issue but in the past few years regular federal courts have had a chance to look at this question and there is a divide among those those courts you have four district court judges holding that these searches are constitutional and then you have four Appellate Court judges expressing serious constitutional concerns the only Federal Appellate Court to rule directly on this question was a unanimous three judge panel of the second circuit which held that you do have to treat the query as a separate Fourth Amendment event subject to its own reasonable business analysis and the Supreme Court has made clear that warrantless searches are presumptively unreasonable unless they fall within an established exception to the warrant requirements such as consent or exigent circumstances the second circuit remanded to the district court to conduct that analysis so the courts it is far from settled that these that these queries are constitutional and Mr Rick remember could I just add one thing as well today and that is this was a reference to the hospital Rami case in the second circuit I and I agree with everything that was being said one of the barriers that we see in federal court is that people have been denied standing in order to challenge these issues the number of searches conducted among U.S person identifiers went from 3.4 million in 2021 to less than 120 000 in 2022. can you explain what remedial measures the doj put in place to reduce the number and whether you consider these changes sufficient to protect Americans from unwanted surveillance sure the FBI FB opposed some new training requirements some new oversight requirements it changed its Data Systems in various ways and these changes resulted in the searches as you say going from 3.4 million to 200 000 searches now I would say that one warrantless search of Americans Communications is too many 200 000 warrantless searches that's 500 warrantless searches for our Communications every day that is just a jaw-dropping number and the fact that the FBI seems proud of that number really tells you how little regard they have for American civil liberties um they have made these changes according to the FBI's own internal study non-compliance has been reduced to four percent I think there are a lot of reasons to question that number but even if you accept that number four percent of 200 000 searches that's eight thousand searches every year that violate the FBI's own low standard thank you Mr 18. how can fisa be modernized to protect America's Communications that are inadvertently acquired through through Section 702 what would be the impact of such changes in our national security but how can they be what should we do in other words right so I I think the solution is to require a warrant or a fisa title one order and order to conduct these queries and the government has put forward absolutely no evidence and no reason to believe that that would harm our national security after all this time the government has managed to come up with three examples of situations where U.S person queries were useful the government has been very vague about exactly how those queries happened and or were used and how they produced The Benefit that the government is claiming but more importantly it's the government has given no reason to think that a warrant requirement or title one order requirement would have prevented the queries from occurring so for example there's the colonial pipeline ransomware attack in that case the queries took place after the attack so there would be certainly be probable cause to support any query that would return evidence of a crime and similarly there were queries to try to identify and protect the gentleman's expired potential victims of assassination plots and I would argue that surely these potential victims would have consented to assert had the FBI bothered to ask thank you I yield back hey thank you and again thank you to the panel thanks for indulging us to go vote great I wholly agree and and the FBI on the other hand has abused its Vise authorities and violated America's constitutional rights and in several investigations and audits the doj Inspector General Michael Horowitz and special counsel John Durham exposed the extent to which the FBI violated its fisa authorities and for example 2019 the oig issued a 478-page report finding that the FBI has abused its fisa authority to legally illegally surveil former Trump campaign associate an American hero Carter page the report found 17 significant heirs or omissions and 51 wrong or unsupported factual assertions in the applications to surveil Mr Page the FBI relied upon uncooperated information to support its application to surveil Mr Page because they wanted to keep my opinion Donald J Trump the greatest president in my lifetime from office and further report the FBI Cherry Picked facts to support its application ignored exculpatory evidence and even doctored evidence presented to a fisa court judge to support its surveillance against Paige the fight FBI's fisa applications to surveil Trump associate page were were based almost entirely on the debunked allegations in this steel dossier there are no probable cause and I think it's very important that we go through I the Mr Carter page what what an American hero 1993 graduates from the Naval Academy so wanted to serve his country he worked as an Intel officer for five years and then you go forward from 93 to 2000 he begins working as an investment banker in London making some money 2004 gets promoted moves to Moscow and that's where things kind of get interesting 2007 because page becomes an in internal energy consultant in Moscow in London and then in 2008 the CIA they began debriefing Paige about his contacts with the Russians 2000 now now FBI counterintelligence interview they interviewed Paige in which page told them he was reporting information to the CIA so back in 2009 already the FBI the CIA they know who Mr Carter page was in 2013 some Russian agents in January 2013 some Russian agents approach page an attempt to cultivate him as a source he rejects of course the in April of the same year the FBI records one of the Russian agents complaining about Paige because Paige wasn't working with him he wasn't going to do anything for the Russian agents he said he's an American hero in June of the 2013 the FBI interviews Paige again and Paige said he was working and he has spoken with the CIA and Paige agrees to cooperate as a key witness in the FBI undercover investigation of the Russian agents that want to turn him so he's working he's he's doing everything he can for his country as he has when he started back uh in the in the Navy and then it gets interesting March of 2016. Paige meets with the FBI agents and federal prosecutors about their case against the Russian agents and one of those Russian agents was found guilty spent 30 months in prison that couldn't have been done without Carter page then all of a sudden this is where things get really sour March of 2016 page joins the Trump campaign as a foreign policy advisor in April of 2016 the FBI headquarters advises New York field office to investigate page a couple months later in August 2016 FBI headquarters opens investigation of Paige and prepares a request to eavesdrop him under fisa August the CIA sends a memo to the FBI headquarters and advised the crossfire hurricane team that page wasn't operational contact for the CIA for five successful years 2008 to 2013 and the FBI does nothing they do nothing with it what do we know the FBI withheld this information from the fisa court and the court approves the fisa warrant and secretly surveils page wow wow so he's an American Hero until he joins the Trump team and you wonder why people up here feel that the FBI cannot be trusted and why we say that they have weaponized the FBI to go against the American people specifically with a dissenting point of view like Carter page and Donald J Trump and they haven't stopped yet they continue to go up against Donald Trump whether it's Mar-A-Lago whether it's indictments up there with the nut job and new uh in Manhattan it's just horrible what the FBI we have to rein them in I will not support the idea of reauthorizing 702 for the FBI until they get their house in order with that a yield back you chair recognizes the gentlelady from Pennsylvania Ms Dean thank you Mr chairman and I thank the ranking member for having this important hearing today uh an important moment of bipartisanship in the understanding uh that the fisa application has gone horribly wrong it is our responsibility to do something about it so I thank all of the witnesses for being here today for your expertise and your historical understanding of where we are and the grave moment that we're in the foreign intelligence act fisa the legislative branch we're entrusted with making the laws of the United States it's our job to decide what the rules should be delineating fare from unfair safe from unsafe sometimes these decisions are straightforward and easily Guided by the Constitution and Common Sense other times the decisions are more difficult it feels like we're in one of those places now with a clear-cut understanding that the abuses of the fisa applications and queries are unacceptable we know we have a responsibility as do the agencies to protect our national security to protect us against Crime any time we can possibly do it but we must always protect civil liberties people's rights to privacy our constitutional rights Ms goiting I was interested in your very eloquent history of what's going on here and what has happened uh we do need to review the fisa process what are the most if you had maybe three areas of reform what would be the most important I know it's denser than that what would be the most three top areas of reform I I've been trying to uh narrow it down a little bit because I know that that's helpful it's difficult there's a lot that needs to be done but I think I can at least narrow it to three buckets and the first bucket is ensuring that seven section 02 works as intended and that means that it's not a domestic spying tool for that we need to have a warrant requirement or a requirement of a fisa title one order before the government conducts U.S person queries out of section 702 data um part of the section 702 reform also has to be narrowing the scope of permissible surveillance so that the government is not allowed to conduct surveillance of foreign targets who do not reasonably uh pose any threat to the United States or have any information about a threat to the United States that is actually a vicarious protection for Americans privacy because the larger the scope of permissible foreign targets the greater the volume of incidental collection of Americans Communications so that's the section 702 bucket then I would say that Congress needs to complete the modernization of fisa by ensuring that Americans Communications and Fourth Amendment protected information are protected from warrantless surveillance regardless of where in the world the government obtains that information and then finally I would say that the government that the Congress has to close the data broker loophole and while we were on break the house passed by Voice vote a bipartisan amendment co-sponsored by Representatives Jacobs and Davidson and with a long bipartisan list of co-sponsors which I'm not going to list because I'm afraid I'll forget someone by accident but the house passed an amendment that would prohibit the Department of Defense from buying its way around the Fourth Amendment and obtaining America's Fourth Amendment protected information by buying it from data Brokers that is proof of concept Congress can do this and Congress now needs to do that for all federal agencies very helpful uh Mr Kiko thank you too for your testimony and your work on this we talked about whether to Sunset and allow it to expire section 702 or to reform it as we've just had some conversation around that what are the consequences of allowing 702 to Simply expire later this year I think allowing it to expire you're turning over the keys to the uh to article 2. to the executive branch and we've had a we've had enough experience to know that even when they have a statute there's ways to weasel around it and I I just would be very I mean article one is the Congress they're the ones that established the law and we're going to have to you know my my experience would be to draft something that you're good you're and you're going to have to have close oversight you're going to have to bring the administration to heal you know for the consequences of abuse but also we don't have to have it read as broadly as it is for data purchases and for all this other stuff that they've been somehow figured out to have jurisdiction over so if you could narrow that and uh and just but really have tight oversight and also consequences for people and agencies that don't follow what the law is I thank you both I thank you Mr chairman my time has expired I yield back thank you uh chair recognizes the gentleman from California Mr Kylie uh Professor Turley in your uh statement you quoted Justice brandeis's famous formulation of privacy has the right to be let alone which uh I do believe is indeed uh one of the rights most valued uh by Americans and that uh most Americans uh would be horrified uh to hear uh of the government having access uh to their private Communications there's something uh really fundamental about this separation between the public and the private the idea that each of us has a sphere of personal privacy that is inviable and violable it goes to the heart of what it means to live in a free Society but you know sometimes you hear a conference of you that well if you're not doing anything wrong what do you care uh if the government has uh has access to this uh what would be your response to that well thank you very much for that question I what's interesting about the quote that you just cited is that this was part of the cat's Olmsted line of cases and cats said that the fourth amendment's area to protect persons not places it got rid of the trespass Doctrine as the key test for whether your rights are violated we've sort of returned to that because the location of a lot of this data if it's abroad for example or it's routed through an international Source suddenly loses its protections as a citizen so to answer your question how does that impact you the answer is that 702 in the abuse is under that section impact Free Speech associational rights a host of other constitutional rights because it creates a chilling effect that citizens know that their Communications are part of a massive Data Bank that the government can search and piece together who you've talked to who you send to you begin to live in this Fishbowl society that impacts us citizens it impacts how we exercise rights which is what Brandeis was referring to and uh Mr uh sure uh Mr uh sure I should say right share yeah that's a singer we've uh we've been talking a little bit about how this right was uh you know put into our constitution by our Founders in the form of the Fourth Amendment and how a lot of the jurisprudence and our understanding of the Fourth Amendment uh is rooted in this idea of a reasonable expectation of privacy and so we've heard that the uh law at least as far as the courts are concerned is a little bit unsettled when it comes to how that applies to the situation we're talking about uh today so uh in your view uh is that a lens that Congress should look through uh when deciding what to do about fisa uh the reasonable expectation of privacy that Americans have and how should that apply to uh to the Gathering of information under Section 702 well two points uh first of all I while Congress should take account of what the courts have said on the the application of the fourth amendment in this setting I I don't believe with with all respect that that you as members of Congress should feel Bound by what the courts say all of you uh and I apologize if this comes across as a lecture that all of you have taken an oath to support and defend the Constitution of the United States not the interpretation of the Constitution by some federal district judge in the Western District of Wisconsin or wherever he or she may be um and and you have the ability and I think the ride and the duty under the Constitution to to reach your own conclusions about what the fourth amendment requires but secondly even um uh Congress has an important role to play in determining for the courts what is a reasonable expectation of privacy and and when do the people of the United States have a reasonable expectation of privacy and even if even if some courts don't think that we have a reasonable expectation of privacy in our electronic data which is we've heard may get sold to data Brokers and then sold to other people uh Congress can step in and say no we think the people of the United States do in fact retain a reasonable expectation of privacy uh in their in their private data even if it's held by Google or Amazon or somebody else and and we the Congress of the United States believe that Americans retain an expectation of privacy and Communications that have been collected pursuant to seven that's right and so can we take the analysis a step further and so I think most Americans would understand we live in a dangerous World intelligence gathering is very important sometimes aggressive tactics are needed and it's possible that on occasion uh you know information uh can be incidentally collected so the question becomes once that information is there and in the government's hands what do you think is the reasonable expectation of Americans as to what is done with that information how long it's kept who can access it because that's really I think the question when it comes to reforming fisa that we need to consider well certainly and if and if people have not expressly consented to have that that data collected and put into the 702 database or whoever else it goes uh I think it's fair to say that they should retain an expectation of privacy in in that data even if somebody else has it and therefore Congress can say consistent with the Fourth Amendment to the FBI if you're going to search that database of purchase data or if you or if you're going to search the database of 702 derived information you need to get a probable cause order from a court thank you very much it's great to see the bipartisan agreement on a lot of these principles and I yield back to the chair thank you chair recognize the gentleman from Georgia Mr Johnson thank you Mr chairman having practiced criminal defense law for 27 years and acted as a judge for 12 years prior to my 17 years now in Congress I understand Fourth Amendment principles and understand the concept of a reasonable expectation of privacy but I cannot wrap my head around the concept of a reasonable expectation of privacy in data that has been acquired over the open market by anybody who wants it like Russia or China or Iran or North Korea that's data that is purchased every day by our adversaries why should not our own government be able to acquire that same data that we certainly have no reasonable expectation of privacy in given the fact that it's on the open market uh however we in this country can certainly rely upon the Constitution and its principles to protect our privacy especially when privacy concerns bump up against security concerns we've lived through harrowing terrorist attacks on U.S soil and through attempts by Foreign actors to meddle in our national elections that's why while taking affirmative steps to protect our civil liberties we must give our intelligence Community the tools it needs to protect us section 702 of the foreign intelligence surveillance Act is one of those tools necessary to protect our national security due to the classified nature of much of the work that's done under Section 702 fisa Authority Americans will never know how it has kept them safe the degree to which it has kept themselves them safe they will through politicians here of uh problems with implementation of the legislation and demonization of those who would access that information to protect us in the real world law enforcement can control the street to monitor suspicious activity they don't need a reasonable expectation of privacy in order to be out on patrol we need to bring real word real world processes to the cyber world and section 702 allows us to do that letting law enforcement Patrol the information highways to neutralize threats however just as cops have certain limitations the intelligence agencies have limits on their ability to search the seven the section 702 database when it comes to U.S person identifiers if the agency's investigation is related to National Security then a database search using U.S person identifiers is allowed when the agency believes it is quote reasonably likely in quote that such a search will retrieve foreign intelligence or evidence of a crime and if the agency's investigation is unrelated to National Security then the agency must get an order from the foreign intelligence surveillance court before it can search the database using U.S person identifiers in the past it seems that the FBI has fallen short due to among other things lack of proper training on the limitations imposed on them by law in this day and time when politicians records recklessly demonize government in general and the FBI and doj in particular the public is susceptible to claims that the FBI willfully defies the law abuses its power as a regular course of conduct and as some have argued is generally quote bad I respectfully disagree with the assessment of the 38 000 employees of the FBI including special agents and support professionals many of whom put their lives on the line every day to protect us from danger both foreign and domestic and I would also point out that it's not about bringing this Administration to heal these fisa excesses existed during the Trump Administration and before in the past uh uh I'm heartened to see that the Department of Justice is working hard to improve agency compliance with the civil liberties Protections in section 702 I look forward to continuing the dialogue on how we can improve uh compliance with Section 02 how we can improve the act itself and uh with that I will uh well I don't have yeah you can't yell anything back you don't have any time left but thank you though yes I knew you did and uh now recognize the the gentlelady from Florida Ms Lee thank you Mr chairman and thank you to all of you for being here today as we work to identify Solutions and improvements to this process for us to have a panel such as this is extremely helpful so we are very grateful uh to have your years of experience and your background working in this subject matter uh here with us today both your written testimony and what you've shared with us during this hearing we have a number of us commented and I think it Bears noting again here today uh the good work and integrity of so many of the men and women of the FBI who work out in field offices across this country uh however that said we are of course here to address a very specific and serious concern which is the misuse of fisa and surveillance techniques and I believe there's broad agreement here that we have much needed uh reforms to discuss I'd like to go back Mr share to uh some of what you've testified about in parts of your written testimony that you submitted to us so we know that 702 is providing the FBI with access to a large amount of information about Americans but one thing that you have touched on when we look at the concept of potentially creating alternative statutory schemes or potential revision the concept that the government is also utilizing other sources of information private data other things to essentially surveil or gather information about Americans I'd like to hear more about that subject and what you would propose if anything we should be doing to try to monitor or curtail that practice I I assume that you're referring to the purchase of data which is a which is uh in my view a an equally if not more serious problem than the vast Trove of information that's collected under uh pursuant to section 702 um and certainly both of those enormous databases together uh can can be an enormously powerful surveillance tool and like any other surveillance tool it it should be subject and in my view to a to a Judicial order uh with the with a probable cause requirement I think that's the most important thing that can be done we're I I don't I don't think any of us here on the panel are disputing the the wisdom or the ability of the FBI to to collect the underlying data um yes in in many instances it's broader than it needs to be but the the key event is not so much the collection of the data as as the as the searching of that data using identifiers that are specific to Americans American citizens in my view that constitutes a a search for Fourth Amendment purposes and even if you disagree with that it's still an important event to to the privacy of an American citizen and is therefore something that Congress can and should regulate very closely right thank you Mr chair Professor Turley I'd like to go back to something you mentioned earlier as well and that is the concept of making the fisc court process more adversarial adding an adversarial component of that or having an amicus involved in that process would you elaborate for us on how you think that type of Reform could be implemented and how that might look thank you very much for that question uh the the Congress years ago implemented this Amicus process by which the court can reach out by what the Congress described as novel questions to get the assistance of essentially a third party view separate from the the government that has been relatively underutilized uh and as far as I know there's no indication it's ever been used in an individual case where the fist Court says can you look at this application and what we know is that when we actually put those applications under a spotlight which is relatively rare is that as the chair mentioned I out of I think 29 cases review 25 of them were in error so there's obviously a need for some additional Viewpoint I don't think that's going to be achieved with uh with any Amicus curi I think that what you really need is this sort of concept of a special Advocate a very a formal office that has the ability among other things to bring a case to the Appellate fisa Court to to say that there's a problem here that you should reveal or review um I think that would be very useful to have an actual privacy Advocate with security advocacy if you're going to have a secret Court let's make sure both are represented all right thank you Professor Turley and Mr chairman I yield back thank you chair richness the gentleman from South Carolina Mr Fry thank you Mr chairman you know this is incredible I mean we we finally I mean we've been fighting all week on the floor on on the ndaa and and in this and in this committee it's it's always a knife fight it seems like but in today's hearing we have really unanimous support for fixing this process we're letting it expire but there's a recognition across uh the entire country that this needs to be fixed you know what's perplexing to me we just had director Ray uh come in uh Professor Turley you alluded to that earlier um who if you ask agencies all is well in the Land of Oz and that's just really not the case um we know that the FBI and other agencies have abused fisa to the nth degree we know that they continually spy on Americans without a warrant we know that they end around and they use data collection and geotagging and geolocation to to to look at the activities of Americans and at the end of the day you know I look back and and Professor you cited a federalist The Federalist Papers you know we're a nation of laws we're not some orwellian dystopia uh where where these things are appropriate or even allowed and and but we've allowed them to happen and and I think to to the point of the entire panel we need really need to get a handle on this in a pretty aggressive way Professor Charlie I want to start with you to hear the FBI talk about it we should be celebrating that we went from 2 million illegal search queries to 200 000. um do you think this is cause for celebration no it's like a bank robber saying we're hitting smaller Banks I mean it's the its problem is still is that you're engaged in something you're not supposed to do look the thing that we have to keep in mind is that all governments are information junkies that is consistent across all types of government whether they're Democratic or authoritarian their information junkies they want more information it's not necessarily for nefarious purposes is that they want data they always do and so this impulse will exist and it will grow unless you restrain it I was baffled by the director's testimony when he said that he wasn't even aware of what parallel construction was I I was I was really taken aback because that's a core issue in these feisty debates it's been an issue for years and I just looked in disbelief when he said I'm not sure what that might be what that might be is a very serious threat to privacy that's existed for years it essentially replants material in order to create a different origin and its purpose is to hide the original origin from quartz and as someone who's litigated National Security cases I have to tell you that these cases are riddled with this type of sleight of hand and I'm usually the cleared attorney National Security cases I've had a national Espionage terrorism cases and when you hit a fisa line all the lights go off I mean you the the government gives you nothing but the other thing I want to emphasize about these commercially available information is it has another Insidious problem and there's what happens the government often wraps commercially available information into fisa applications and then everything gets iron plated under fisa and when people like me finally see the applications in this GIF we find it's loaded with material that should have been disclosed to defense counsel or trial Council right so this is nothing to celebrate I mean 200 000 violations of the fourth amendment is not really a good cause for celebration you know Professor I think you hit on having a special Advocate and strengthening that I think that's a great step what it what in your mind are other reforms that would be crucial uh to to fixing the fisa problem that we have in this country well Congressman the most important one is where we should have we should have started and ended this debate in 78 that is you cannot engage in a query or search of U.S citizen without a warrant or title one uh order period I don't think it should matter where that occurs now it's true the exercise territoriality of the fourth amendment has not been supported by the Supreme Court but you can support it you can support uh the rights of U.S persons abroad that creates a very clear line when I talked about letting the provision sunset um I'm saying that when it's sunsets you make clear that all searches or inquiries wherever they are of a U.S citizen by a U.S agency must be accompanied by a warrant or title one order right period and they can find a way to try to get around that but that's the brightest of bright lines Mr chair real briefly to wrap up I'm also concerned that even if we fix this that the administration a future Administration will just end around this by virtue of executive orders so how do we deal with fisa in reforming fisa when when an Administration could just go around it what would you suggest in that in that sphere generous times expired you may answer the question I think the short answer is two words any statute needs to make clear that whatever Congress specifies as an appropriate search has to be the exclusive means of obtaining the information that's covered um and that and if you're a lawyer sitting at the White House or the justice department you feel an obligation to be sure that the president that you serve takes care that the laws be Faithfully executed and if that and if it's clear in the law that there's a there's one exclusive way of getting the information at issue you're going to feel some obligation to be sure that your boss proceeds in that way but if there's a statutory vacuum that's where the problems arise how much time is expired now I haven't taken my five minutes of questioning it but I'm going to go ahead and do it I'm going to limit it to I think three questions and um yeah she's good she's gonna pop me with that gavel okay and we're going to start with you Mr Mr Turley please um let's start let's get with this capacity of state and district courts to keep uh records and information sealed that's one of the critiques we have about moving away from a fisa court because oh boy there'll be leaks as if there's been no leaks um um in the in the current scheme so tell me your experience there and is it possible for state and federal courts to keep information sealed yeah I always I always hear this objection and it has no support at all I deal with National Security cases through regular article 3 courts all the uh in throughout the years they have Skiffs they have training they're cleared uh there aren't these allegations of of leagues the issue with the secret court is that no one's objecting that you can have a secret Court in a sense of a giant skiff where secret proceedings can occur you can even have judges that are selected and trained for that purpose the question is whether the standard for U.S citizens and U.S persons should be different in that courtroom and I have never accepted that to be the case I don't see an exception under the Fourth Amendment right I appreciate that and and I'm in agreement with that Mr share I'm going to go to you next um the gentleman from Georgia kind of intimated that somehow a data collection and querying is similar to an officer on the in a patrol car driving around and observing suspicious activity maybe making a Terry stop or whatever you want to call it but how is this different and why should we equate this more like to a wiretap rather than a stop and frisk I I think it is very much more like a wiretap um I mean yes if you're if you're a police officer you have you have a right to be on a to be on a highway and and watch what goes by but that doesn't mean that you also get to have a helicopter flying over the the neighborhood and you know and taking pictures of everything that happens in every home in that neighborhood um and so by all means I I think the um the wiretap analogy is the right one to use because that that exactly is what 702 is doing is it's taking a a stream of data a massive stream of data and you know and just pulling things out of it and and even if it's appropriate to collect the data there need to be Fourth Amendment protections when it comes to searching that data just as you would have in a wiretap I mean when you when you narrow the search down you've made a particularized uh you you've targeted somebody right you you're going forward and getting a warrant right right and searching searching a database with somebody's name or other identifying information is more analogous to a wiretap and so um I want to get to this other thing too uh uh Ms goiting and that is dealing with purchased information and I think professori kind of got to it a little bit is that they wrap it up and we've been briefed by the FBI and this they they talk about multiple databases that they're that they're using and and then it's then it's uh there's a a wall That's created why why should we prohibit the use of purchased material um well we know other nations are using it well that's an important question and let's be clear that we are talking about material that the government would need a warrant or a court order or subpoena if it were compelling the production so we're talking about sensitive information about U.S persons the reason the government can buy this from data Brokers is because there are loopholes in the law the law does prohibit phone companies and internet companies from selling this type of data to the government but that law is from 1986 and so it doesn't address Digital Data Bookers they didn't exist back then so there's this loophole where the government where the companies cannot sell it to the government they can sell it to data Brokers the data Brokers turn around and sell the same information to the government at a handsome profit so the the information is laundered through a middleman now we should be concerned about the fact that foreign governments can get this information Congress absolutely should act on that problem and the Brennan Center is in favor of comprehensive consumer data privacy legislation that should not stop Congress from acting now to to make sure that our government can't exploit this loophole because when the U.S government is obtaining American sensitive information there are risks and harms to American civil liberties that go beyond what can happen when private entities can get that information or even foreign governments because the United States government has coercive Powers over American citizens that private companies and foreign governments do not have the ability to put us in jail the ability to deport people to tax you to fine you to put you on a no-fly list to withhold public benefits there are all kinds of ways in which the government can impact our liberties and for that reason the fourth amendment applies to the U.S government not to private actors not to other governments and Congress should make sure that the US government is honoring those Fourth Amendment protections well my time is expired and I think each one of you you've provided us with some information and I think this vital a lot of comments and what I would ask of you is as we go forward um we we may have ideas legislation that we want you to review please make yourself available we appreciate yourself making making yourself available chairman and I believe there's some unanimous consents yes here um I like um tribute to miss uh go team but I'd like to um unanimously submit into the record Brennan said a bipartisan Coalition responds to the FBI's new policies under foreign intelligence surveillance Authority as unanimous consent and under epic.org July 13 2023 new FBI procedures under fisa Section 702 out of touch with extent of abuse gravity and privacy threat and I will I think I will yield on those two items and unanimous consent without objections uh entered into the record at the collegiality that we will work together on the best solution of this matter and Mr chairman just want to put on the record we are facing in the next decade artificial intelligence and I yield back thank you so much and with that I appreciate everyone being here and we

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Id: 1U_PDYNVfr0

Length: 106min 31sec (6391 seconds)

Published: Fri Jul 14 2023